Asociación de Pescadores, Fundadores, Armadores y Estibadores Artesanales vs. Repsol

Allegations

On 19 April 2022, the Asociación de Pescadores, Fundadores, Armadores y Estibadores Artesanales, a group of small-scale fisherpeople from Bahía Blanca beach in Peru, supported by a law firm, filed a complaint against energy company Repsol S.A. to the Spanish NCP. The complaint addresses an oil spill allegedly caused by Repsol and alleges violations of the Human Rights and Environment chapters of the Guidelines. The complainants are seeking compensation for the impacts of the spill on their lives and livelihoods.

Relevant OECD Guidelines

• Chapter IV
• Chapter IV Paragraph 1
• Chapter IV Paragraph 2
• Chapter IV Paragraph 5
• Chapter IV Paragraph 6
• Chapter VI
• Chapter VI Chapeau

Outcome

On 9 April 2022, the Spanish NCP accepted the complaint. Both parties agreed to mediation and NCP held several meetings with them. In those meetings, Repsol agreed that compensation should be paid to the complainants. The NCP subsequently decided not to participate in further discussions between the parties, which focused on the amount of compensation to be paid, due to its conclusion that the content of these discussions went beyond its mandate. The complainant disagreed with the NCP’s decision to not participate in these discussions.

On 13 September 2023, the Spanish NCP published its final statement concluding the complaint without agreement. However, the NCP noted that discussions between the parties on the compensation to be paid by Repsol continued outside the NCP process. The NCP made the following recommendations:

• The parties continue their dialogue to make rapid progress on providing redress to the complainants. The NCP will follow-up on their progress within six months of the publication of its final statement.
• The NCP noted Repsol’s efforts to clean-up the spill and encouraged the company to continue doing so to avoid environmental degradation and further threats to biodiversity. The NCP will follow-up on Repsol’s progress within six months.

The Spanish NCP did not make any determinations of Repsol’s (non-) compliance with the Guidelines’ standards. The NCP referred to other ongoing legal procedures examining Repsol’s liability, and noted that in any case Repsol has assumed responsibility and in fact was in the process of cleaning up the oil spill and compensating those affected.

OECD Watch is disappointed by the NCP’s failure to make a determination on Repsol’s compliance with Guidelines. NCPs can make these decisions even when other (parallel) proceedings are taking place because determinations address companies’ compliance with the standards in the OECD Guidelines, not the standards in other national or international laws. In OECD Watch’s view, given the information publicly available about Repsol’s responsibility for the human rights and environmental harms caused by the oil spill, it would have been appropriate for the NCP to make a determination in this case. Determinations are critical to effective implementation of the Guidelines and enable companies to better understand both how their past behaviour did not meet international expectations and what they must do differently to meet the norms in future. Determinations can also represent a form of remedy for complainants by publicly validating their experiences and concerns.

OECD Watch is also disappointed that the NCP chose not to participate in the dialogue between the parties focused on the compensation to be paid to the complainants. The role of an NCP is not just to facilitate dialogue between the parties, but also to ensure that any agreements reached between the parties are compatible with the Guidelines. Discussion on compensation is not outside the mandate of NCPs, especially where remediation through compensation would ensure an outcome compatible with the Guidelines. In OECD Watch’s view, the Spanish NCP should have participated in the dialogue and should not have closed the complaint until a Guidelines-compatible agreement had been reached between the parties. Now that the complaint has been closed, the NCP should ensure in its follow-up statement that any agreement subsequently reached between the parties meets the expectations in the Guidelines and is implemented.

More details

Documents

• Final statement

  13 September 2023

  Final statement (Spanish)

  NCP Spain
• Final statement

  13 September 2023

  Final statement (English - unofficial translation)

  NCP Spain