Once a complaint is submitted to a National Contact Point (NCP), the NCP should conduct an initial assessment to determine if the case merits further examination.
- Initial assessment process
The NCP is required to confirm receipt of the complaint within a couple weeks. Next, the NCP should take about three months to evaluate the complaint to determine whether it merits further consideration – but some NCPs have taken much longer. After the NCP has finished its evaluation, it will accept or reject the complaint.
- If the NCP accepts the complaint, it will proceed to the next stage.
- If the NCP rejects the complaint, the NCP must tell the parties the reasons for the rejection.
Some NCPs invite both parties to read a draft initial assessment statement and/or terms of agreement for a proposed dispute settlement. Complainants should feel free to request terms and a process that seems productive and fair to them.
Most – but not all – NCPs publish an initial assessment statement explaining the basic allegations by the complainant, the response by the company(ies), the NCP’s acceptance or rejection decision, and the reasons for that decision.
- Initial assessment evaluation criteria
To determine whether a complaint merits further consideration, NCPs are supposed to evaluate the complaint according to six “admissibility criteria” established in the OECD Guidelines’ Procedural Guidance. These are:
- Assessment of the complainant’s interest in the matter,
- Assessment of whether the issues raised are related to the Guidelines, material and substantiated, and linked to the multinational enterprise’s activities,
- Assessment of whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance,
- The relevance of applicable law and procedures, including court rulings,
- How similar issues have been, or are being, treated in other domestic or international proceedings, and
- Whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines.
Some NCPs focus more heavily on evidence than OECD Watch thinks appropriate at this stage; others do not follow these criteria carefully. Contact OECD Watch if you feel an NCP has not followed these criteria appropriately.
- Role of complainants
As a complainant, you should anticipate being asked by the NCP to clarify aspects of the complaint or provide additional evidence through submissions, phone calls, or meetings. You may be invited to comment on the draft initial assessment statement.
Complainants often have questions about how much they can communicate about the case during the initial assessment stage. The general rule is transparency at the time of filing. During the initial assessment stage, the rule is transparency of process but confidentiality of content. For a discussion on transparency and campaigning, see the page on Other filing considerations.
- Role of companies
The OECD Guidelines are not binding on companies. This means companies can choose not to engage in the initial assessment stage or complaint process overall.
- If a company decides to participate in the initial assessment, it will be asked to provide a response to the complaint and additional clarifying information, and may be invited to comment on the draft initial assessment statement.
- If the company(ies) do not engage, OECD Watch recommends complainants ask the NCP to still investigate the claims, determine whether the company breached the OECD Guidelines, and seek consequences for the company(ies) for their unwillingness to participate. Contact OECD Watch if you need advice on a company’s response at this stage.