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A “parallel proceeding” is a formal procedure at another court, tribunal or complaint mechanism that deals with the same issue and is happening at the same time as the NCP process. The existence of a parallel proceeding does not necessarily prevent an NCP from also proceeding with the specific instance, but it does generate some additional considerations.

Photo: Jessica45 via Pixabay CC0
  • Why to file an NCP case despite a parallel proceeding
    There are several reasons why complainants might want to file an OECD Guidelines complaint even though another court or tribunal is considering a related case:
    • The legal proceedings are “stuck” – i.e. indefinitely delayed or unreliable due to court corruption or incompetence – and therefore not a viable means of resolving the dispute.
    • The Guidelines are broader than the corresponding legal framework and may permit consideration of issues the court cannot deal with.
    • The NCP can serve as creative, collaborative facilitator of positive outcomes unavailable through combative legal action.

  • What the Guidelines say on parallel proceedings
    The OECD Guidelines’ Procedural Guidance states clearly that NCPs should not reject a case simply because parallel proceedings are underway:

    Paragraph 26. When assessing the significance for the specific instance procedure of other domestic or international proceedings addressing similar issues in parallel, NCPs should not decide that issues do not merit further consideration solely because parallel proceedings have been conducted, are under way or are available to the parties concerned. NCPs should evaluate whether an offer of good offices could make a positive contribution to the resolution of the issues raised and would not create serious prejudice for either of the parties involved in these other proceedings or cause a contempt of court situation. In making such an evaluation, NCPs could take into account practice among other NCPs and, where appropriate, consult with the institutions in which the parallel proceeding is being or could be conducted. Parties should also assist NCPs in their consideration of these matters by providing relevant information on the parallel proceedings.

    What this means is that NCPs should only reject a claim (portion of a whole complaint) if considering it would “seriously prejudice” the parallel proceeding. NCPs can and should accept all claims within a complaint that can be reviewed without causing serious prejudice to the parallel proceeding.
  • Important considerations on parallel proceedings
    Although the Procedural Guidance states clearly that NCPs should not automatically dismiss a case when they learn of a parallel proceeding, unfortunately many NCPs do automatically reject complaints in this way. To try to avoid rejection, OECD Watch encourages complainants to:
    • In your complaint, remind the NCP of the Procedural Guidance’s rule on parallel proceedings,
    • Explain to the NCP how its consideration of the complaint will not prejudice the other parallel proceeding, because the cases are about slightly different topics, or involve different parties, or are based on different standards or laws, etc.
    • If applicable, explain to the NCP how the NCP’s good offices could help facilitate an out-of-court solution supporting the parallel proceeding.