Strengthening the Enforcement of CSR Guidelines: Finding a New Balance between Hard Law and Soft Law

Abstract

Since 2000, the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (the Guidelines) have required OECD Members to establish national contact points (NCPs) to promote the effective implementation of the Guidelines. The aim of this article is to examine the role of the NCPs in implementing the Guidelines, including how the influence of the NCPs may change the nature of the Guidelines from being purely voluntary to become more in the nature of binding requirements. The examination focuses on the NCPs in Denmark, Norway, and the United Kingdom. It concludes that the way in which the NCPs operate, including the extensive right to refer complaints to them, the broad scope of the recommendations in the Guidelines and especially the use of naming and shaming in cases of breaches of the Guidelines, has changed the original character of the Guidelines as a purely soft law instrument. Furthermore, it is shown that the use of very broad and vague terminology in the Guidelines makes it very difficult for enterprises to comply with them. This is further complicated by the fact that many of the terms, which specify when the NCPs have jurisdiction, are not clearly defined or explained. The three NCPs examined have implemented the Guidelines very differently. In particular the Danish NCP stands out. It has a jurisdiction which in many respects goes far beyond that envisioned in the Guidelines. This may put in question the legitimacy and effectiveness of the Danish NCP, but at the same time it can also be viewed as an interesting innovation which may provide useful lessons for other NCPs and their approaches to implementing the Guidelines.