On 24 April 2017, Society for Threatened Peoples filed a complaint with the Swiss NCP regarding Credit Suisse’s ongoing business relations and financial investment with North Dakota Access Pipeline (DAPL) related companies, including Entergy Transfer Partners L.P, Energy Transfer Equity L.P, and Sunoco L.P. The DAPL project is located in the USA and has generated massive protest due to the threats to the main source of drinking water for local indigenous people, as well as possible leaks. The complaint states that its ongoing relationship with its clients, despite being informed of the potential human rights violations of the DAPL project, breaches Credit Suisse’s own internal policies, as well as breaches the OECD Guidelines. Mainly, it alleges that Credit Suisse has breached the principle to carry out risk-based and human rights due diligence, that the bank has failed to actively encourage its investees to prevent or mitigate adverse impacts of the project, and that by continuing to enable the construction of the pipeline, the bank breaches the OECD principle to contribute to sustainable development and to protect the environment. Society for Threatened Peoples is asking for mediation, in order to create awareness in Credit Suisse and other investors, that through their services, operations and products, they may become complicit in adverse impacts caused by their investees.
Relevant OECD Guidelines
- Chapter II
- Chapter II Paragraph A10
- Chapter II Paragraph A13
- Chapter IV
- Chapter IV Paragraph 5
- Chapter VI
The Swiss NCP released the Initial Assessment on 19 October 2017, accepting the case for mediation as the issues raised merited further examination. While Credit Suisse had asked that the US NCP handle the case given that the DAPL project is located in the US and follows US regulations, the Swiss NCP responded that the main part of the complaint is about company policies and therefore, they are competent to handle the case. They also consulted with the US NCP, who will support the NCP and that all “US related matters will have to be dealt with by the US NCP. As such, the US NCP will lead on any statement or decision regarding US legal entities and US-related facts.”
The Swiss NCP appointed a professional external mediator agreed to by the parties. The independent mediator held five mediation sessions at the Swiss NCP involving the parties and an NCP representative. According to the Swiss NCP, the parties agreed that the concept of Free, Prior and Informed Consent (FPIC) was essential in the context of the specific instance, and so the dialogue focused on how Credit Suisse could operationalise a committment to FPIC.
On 16 October 2019, the Swiss NCP issued a final statement outlining an agreement reached by the parties. Under the agreement, Credit Suisse agreed to incorporate language into its internal guidelines on project financing for the oil & gas, mining, and forestry & agribusiness sectors to set an expectation for clients to demonstrate alignment with the key obejctives and requirements of the International Finance Corporation Performance Standard 7 – Indigenous Peoples, which incorporates the principles of FPIC. The parties also agreed that the Swiss NCP would follow-up to ensure Credit Suisse’s implementation of its commitment.
In a press release, Society for Threatened Peoples stated, “We welcome this improvement of the internal guidelines and acknowledge this as the bank’s first steps towards incorporating the rights of indigenous communities. At the same time, we note that CS is limiting its compliance with FPIC to project financing. Company financing and stock broking are excluded from these guidelines. The extension is therefore only a small step in the right direction when it comes to comprehensive protection of indigenous communities.
“The Society for Threatened Peoples will monitor the implementation of the guidelines and expects CS to expand them soon, so as to include other business segments. CS is also expected to take decisive measures if the guidelines are not met.”
- Other companies involved
- Affected people
- Other NCP's where the complaint was filed