Abstract
The OECD Guidelines for Multinational Enterprises were viewed at their genesis as political commitments not legally binding on states and only voluntary for corporations. Due to the OECD Council Decision on the Guidelines for Multinational Enterprises in 2000/2011, however, OECD Member States are compelled to implement this regime by the establishment and operation of a National Contact Point (NCP) as a state-based, non-judicial, dispute resolution mechanism to handle complaints concerning corporations operating from or within their respective jurisdictions. This paper does not analyse weaknesses in the often-troubled NCP system nor does it propose reforms. Rather, it examines the current system from the legal perspective of OECD Member States and explores the relatively ignored extent of their obligations under it. This paper posits that on account of the Council Decision, treaty-derived, international obligations are in fact imposed on OECD Member States under the NCP system and that NCP maladministration can lead to state responsibility at international law. In any event, however, it seems clear that there does not exist any review mechanism—domestically or internationally—capable of attributing internationally wrongful conduct to an OECD Member State on account of its NCP.
Highlights
The Organisation for Economic Co-operation and Development (OECD) has undoubtedly emerged as a major player in economic-related global governance
This paper posits that on account of the Council Decision, treaty-derived, international obligations are imposed on OECD Member States under the National Contact Point (NCP) system and that NCP maladministration can lead to state responsibility at international law
A strong argument can be made that maladministration by any NCP is attributable to its OECD Member State under Article 4, whatever the mode, since every NCP seems to be tied to the central government in some fashion;105 this is despite the fact that they do not fulfil a legislative or judicial role
Summary
The Organisation for Economic Co-operation and Development (OECD) has undoubtedly emerged as a major player in economic-related global governance. A state maintains a sovereign right to be aware of its obligations arising under international law, and a failure to inform states of such obligations is surely improper.9 With this in mind, the current per se binding and presumably ‘hard law’ character of the MNE Guidelines implementation regime in relation to OECD Member States, within a traditional CSR context, is somewhat unique. As the OECD states, ‘The MNE Guidelines are the only existing multilaterally agreed corporate responsibility instrument that adhering governments have committed to promoting in a global context.’ the MNE Guidelines regime is the only international CSR regime with a built-in, statebased governance mechanism These obligations are often treated as binding without examining the exact nature of the MNE Guidelines and the function of their implementation regime at contemporary international law, as well as the coinciding nature of the obligations imposed upon states by this regime.. Oecd.org/MNEguidelines_RBCmatters.pdf> (Responsible Business Conduct Matters). 11 See eg Ivan Cisar ‘OECD Multinational Enterprises Guidelines: Moving from Voluntary Code to the ‘Hard’ Obligations’ (Paper delivered at the 5th International Conference for PhD Students and Young Scholars COFOLA, Faulty of Law, Masaryk University, Brno, Czech Republic, 29 April- 1 May 2011) 2,
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