oecd guidelines for multinational...
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OECD Guidelines for Multinational Enterprises
Kenneth A. Reinert, Oda T. Reinert and Gelaye Debebe
Handbook on Globalisation and Labour Standards
Edited by Kimberly A. Elliott
Edward Elgar, 2021
Abstract: This chapter considers the role of labour standards in the OECD Guidelines for
Multinational Enterprises. It describes the history and content of the Guidelines and their
relevance to labour standards. It focuses on the role of the National Contact points in the
implementation of the Guidelines, providing a few case studies relevant to labour standards.
Finally, it gives a critical assessment of the extent to which the Guidelines and the NCP process
are sufficient to ensure the enforcement of labour standards by multinational enterprises.
Keywords: Labour standards, foreign direct investment, multinational enterprises, global
governance, human rights, OECD
INTRODUCTION
Labour standards are an essential if under-appreciated component of global governance. This
reflects their support for human welfare. For example, some time ago, Bruton and Fairris (1999)
noted that ‘the labour issue now includes a role for work not simply as a source of income but as
a direct source of well-being’ (p. 5, emphasis added). These authors pointed out that, given the
significant time that employed individuals spend at work, work conditions directly impact well-
being. Bruton and Fairris also addressed the common argument that, particularly in low- and
middle-income countries (LMICs), the imperative of job creation puts quality work conditions into
the realm of a luxury good. They rejected this argument because ‘even at low incomes, workers
value safety, relationships with management consistent with prevailing norms, and meaningful
work’ (p. 7). Consequently, the characteristics of workplaces, including labour standards, matter.
The sources of labour standards are multiple. As reflected throughout this volume, the most
fundamental source is the International Labour Organization’s (ILO) four core labour standards.
These are:1
• Freedom of association and the right to organize and bargain collectively
• Freedom from forced labour
• The effective abolition of child labour, beginning with the worst forms
• Nondiscrimination in employment
With the exception of freedom from forced labour, there are ongoing discussions on the
application of these core labour standards. However, Elliott (2017) noted that the core labour
standards are a ‘framework of rules that govern labor market transactions’ and that they ‘are
comparable to the rules that protect property rights and freedom of transactions in product markets’
(p. 186).2 They are therefore an essential component of global governance.
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Beyond the ILO core labour standards, there are labour standards as part of trade
agreements; private sector codes and monitoring; United Nations efforts such as the UN Global
Compact and the Guiding Principles on Business and Human Rights; a joint effort between the
ILO and the International Finance Corporation (IFC) known as the Better Work Program; and an
effort by the Organisation for Economic Cooperation and Development (OECD) known as the
OECD Guidelines for Multinational Enterprises. Many of these efforts are addressed in the other
chapters of this volume. The focus of this chapter is on the OECD Guidelines for Multinational
Enterprises.
ORIGINS OF THE GUIDELINES
The OECD Guidelines for Multinational Enterprises (OECD Guidelines or Guidelines) had their
origin in 1976 as a non-binding, soft-law framework designed to help governments promote ethical
conduct by multinational enterprises (MNEs) headquartered in their counties.3 This version of the
Guidelines appeared as an annex to the OECD Declaration on International Investment and
Multinational Enterprises and consisted of nine chapters. It did not apply outside of OECD
countries and was limited to the standards that countries in which MNEs operated had committed
themselves to. It was slightly revised in 1991 to include language on environmental protection.
This original version of the Guidelines did not directly address labour standards, although the
second Guideline mentioned ‘give due consideration to those countries’ aims and priorities with
regard to economic and social development’, which in principle could include such standards.
The OECD agreed on a new version of the Guidelines in 2000.4 The 11 chapters of the
2000 revision of the Guidelines addressed human rights, local capacity building, labour relations,
health and the environment, corporate governance, and science and technology. These chapters are
summarized in Table 1. Labour standards were not mentioned directly but were implied in
Guideline 2 on human rights, in Guideline 5 on ‘the statutory or regulatory framework related to…
labour’, and in Guideline 9 prohibiting retaliatory actions against workers raising legitimate
concerns. The 2000 version applied to 34 OECD members, but additional countries agreed to the
Guidelines, bringing the total number of adhering countries to 42. An assessment of the 2000
Guidelines by Murray (2001) suggested that they formed a useful complement to the ILO core
labour standards. The 2000 Guidelines were also endorsed by the G-8 and the United Nations
Secretary General’s Special Representative on Business and Human Rights.
The 2000 version of the Guidelines were still non-binding but contained two new
strengthening elements. First, they included an implementing mechanism known as National
Contact Points (NCPs) that we will discuss in some detail. Second, in 2006, they were
supplemented by a Risk Awareness Tool for MNEs in Weak Governance Zones. The latter was a
response to the reality of MNEs operating in poor-governance environments. With both of these
elements in place, the 2000 version of the Guidelines was an advancement over the 1976 version.
The Guidelines were revised again in 2011 with the number of chapters expanding from
11 to 15 as illustrated in Table 1. The 2011 Guidelines are still in the form of ‘recommendations’
and ‘non-binding principles and standards’ (OECD, 2011) and have been adopted by 48 countries
as of 2019 (36 OECD countries and 12 non-OECD countries). In an important but somewhat vague
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turn of phrase, while the 2011 Guidelines themselves are non-binding, signatory countries make a
‘binding commitment to implement them’. Countries commit to creating awareness of the
Guidelines and to creating and operating a dispute resolution mechanism. With some irony then,
the OECD Guidelines are binding on signatory countries rather than on MNEs. This is in keeping
with a long tradition of avoiding any real requirements for MNEs, while attempting to influence
the policies of adhering states, a point emphasized by Santner (2011).
Prior to the 2011 revision, the United Nations Special Representative on Human Rights
and Transnational Corporations (2010) had suggested that human rights be given a stand-alone
chapter within the Guidelines. In 2011, the Guidelines were also reviewed by the United Nations
Human Rights Council, which adopted the Guiding Principles on Business and Human Rights
(UNGPs). The UNGPs recognize the following:5
• States’ existing obligations to respect, protect and fulfil human rights and fundamental
freedoms.
• The role of business enterprises as specialised organs of society performing specialised
functions, required to comply with all applicable laws and to respect human rights.
• The need for rights and obligations to be matched to appropriate and effective remedies
when breached.
These stated concerns were partially addressed by the 2011 Guidelines. The second
guideline of the 2000 version was to: ‘Respect the human rights of those affected by their activities
consistent with the host government’s international obligations and commitments’. In the 2011
version, this was changed to: ‘Respect the internationally recognized human rights of those
affected by their activities’ (emphasis added). This change reduced the ambiguity of the 2000
version by referencing all internationally recognized human rights. The 2011 version also
introduced a ‘risk-based due diligence procedure’ to identify and remedy human rights
infractions.6 While not perfect, many observers see these changes as steps in the right direction.7
The 2011 Guidelines also promote a risk-based due diligence approach to ‘responsible
supply chain management’. This reflects the 2003 OECD Due Diligence Guidance for Responsible
Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. This new area of
consideration extends the potential responsibility of MNEs throughout their global value chains
(GVCs). A little background will illustrate the significance of this change.8
GLOBAL VALUE CHAINS
In the early 1990s, labour issues within GVCs jumped into international attention in the case of
Nike with a number of high-profile labour abuses among its contract manufacturers. Initially, Nike
took a defensive position, arguing that it was not responsible for labour conditions in its contract
manufacturing facilities since the workers involved were not Nike employees. By the late 1990s,
however, in response to pressure by activists, Nike had established a Nike Code of Conduct for its
contract manufacturers.9 Nike’s initial arguments would not hold up today given the 2011 OECD
Guidelines language on ‘responsible supply chain management’.
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A similar issue arose over Apple’s production of iPhones in China, which involved both
contracting and foreign direct investment (FDI) within the Apple GVC. Apple contracts production
in China to Foxconn, while Foxconn, based in Taiwan, engages in FDI in China. Beginning in
2006, labour and environmental issues in Foxconn contract manufacturing facilities were raised.
After what Clark and Boersma (2017) termed a ‘public relations nightmare’ (p. 119) that included
worker suicides and exposure to hazardous chemicals, Apple followed Nike and instituted an
Apple Code of Conduct for its suppliers and began to use independent auditors.
The 2011 OECD Guidelines have relevance for complex cases such as these. Indeed,
Backer (2018) referred to the shift from an enterprise-perspective to a GVC-perspective in the
Guidelines as ‘an extraordinary transformation of focus’ (p. 45). There has also been welcome
further progress in this regard. In 2018, the 48 signatories of the OECD Guidelines signed the
OECD Due Diligence Guidance for Responsible Business Conduct (Due Diligence Guidance,
OECD, 2018). In the words of Shavin (2019), the Due Diligence Guidance ‘was developed to
provide practical support to business enterprises on the implementation of the OECD Guidelines
by providing plain language explanations of the Guidelines’ due diligence recommendations’ (p.
139). This includes six core process explanations and an annex of detailed examples to help MNEs
implement due diligence practices. This is another important step forward in the GVC realm.
THE ROLE OF NATIONAL CONTACT POINTS
The above-mentioned NCPs continued to be an important part of the 2011 Guidelines and are
listed in Table 2. Indeed, this is where the Guidelines are binding on signatory countries.10 The
2011 Guidelines document states: ‘Governments adhering to the Guidelines will implement them
and encourage their use. They will establish National Contact Points that promote the Guidelines
and act as a forum for discussion of all matters relating to the Guidelines’ (OECD, 2011, p. 18,
emphasis added). The NCPs, in turn have their own mandate, namely, to ‘contribute to the
resolution of issues relating to the implementation of the Guidelines in specific instances in a
manner that is impartial, predictable, equitable and compatible with the principles and standards
of the Guidelines’ (OECD, 2011, p. 72). This mission is to be met with procedures that are outlined
in only general terms.
Enquiries to NCPs can be initiated by other NCPs, the business community, worker
organizations, non-governmental organizations (NGOs), the public at large, and governments of
non-adhering countries.11 NCPs then are required to make an ‘initial assessment’ as to whether
issues brought to their attention merit formal consideration. If they determine this to be the case,
the NCP formally considers the ‘specific instance’ or just ‘instance’, the term used by the OECD
for what might normally be called a ‘case’. In addressing an instance, NCPs can offer their ‘good
offices’ to resolve the issues (including ‘conciliation’ and ‘mediation’), seek advice from other
entities, including relevant experts, consult with other NCPs, and seek the advice of the OECD
Investment Committee. Upon conclusion, NCPs must notify the OECD Investment Committee in
a timely manner.
NCPs consider cases regarding MNEs operating in or from the country of the NCP. In cases
where issues arise in a set of countries, ‘the NCPs involved should consult with a view to agreeing
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on which NCP will take the lead in assisting the parties’ (OECD, 2011, p. 82). Therefore, many
patterns of NCP involvement are possible.
With regard to who initiates OECD Guidelines instances, we don’t have comprehensive
information over all of the years of NCP operation. However, OECD (2019b) gives information
for the year 2018, stating the following:
The NCP mechanism is open to everyone with an interest in the matter. In terms of
the users of the NCP mechanism, non-governmental organisations are the primary
users. They accounted for 40% of all submissions in 2018, trade unions for 23%
and individuals for 23%. In 2018, submissions were also filed by companies
regarding the conduct of other companies, and in one situation, a specific instance
was initiated by the NCP itself (p. 7).
Although we need to be careful in generalizing these data across the 2000 to 2019 time
period, there is a sense that the NCP process is open to a number of initiating entities.
While the NCPs have certainly been useful in addressing inquiries and concerns brought
to their attention, they have a number of flaws.12 First, NCPs lack a standard structure, with the
matter of how to implement them being left entirely to the individual country. The result has been
many different types of NCPs with varying degrees of effectiveness. Kaufmann (2018) assessed
this situation, stating that ‘the NCP landscape is highly fragmented’ (p. 31).13 Second, NCPs do
not have the resources and capabilities necessary to carry out their functions even when their
responsibilities are made clear. For example, fact-finding missions are a rarity. Third, there is a
fundamental ambiguity about whether NCPs are to play a mediation role in dispute settlement or
a determination role (or both).14 Fourth, the language of the Guidelines does not offer a monitoring
mechanism to determine if any NCP recommendations are enacted. Fifth, there are no established
procedures for coordination among NCPs in instance investigations. Unfortunately, even the 2011
revision of the Guidelines did not adequately address these issues.
More positively, there is now an OECD document that attempts to provide a standard
framework for NCP processes. It is notable that this document (OECD, 2019a) lists nearly 100
NCP instances where the NCP issued at least one recommendation and nearly 40 NCP instances
where the NCP issued at least one determination. Recommendations have been made in both
instances that have been accepted by NCPs and those that have not been accepted. The document
also makes a distinction between ‘direct’ and ‘indirect’ determinations. Direct determinations
‘state clearly that they are meant to signal whether the company has observed the Guidelines’ (p.
22), while indirect determinations do not explicitly indicate observance (or lack thereof) of the
Guidelines.
This guidance document is clearly very helpful. However, a reading of its ‘Challenges’
section does show the presence of existing, expressed ambiguities among NCPs, particularly
regarding determinations and the relationship between NCP determination and mediation
functions. Therefore, as just indicated, flaws in the system remain.
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SPECIFIC INSTANCES
Despite these limitations, there has been some significant amount of NCP activity. Figure 1 and
Table 3 give a sense of this by presenting NCP ‘instances’ from 2000 through 2018. Figure 1
shows the number of instances by year, with an average of 24 instances each year. In Table 3, these
are broken down by NCP country and issue category. Issue categories include: bribery,
competition, consumer interests, disclosure, employment and industrial relations, the environment,
general policies, human rights, science and technology, and taxation. Note that a single instance
can address more than one issue category, so summations across issue categories can exceed the
total number of instances.
NCP instances have addressed more than 100 MNE host countries. While many host
countries have had just one instance, a number have had many more. This can be seen in Figure 2,
which reports the number of instances by host country from 2000 to 2018. Figure 2 suggests a
relatively large country coverage with host countries being subjects of anywhere from 10 to 30
NCP instances. While NCP activities are no doubt slim relative to the global activities of MNEs,
it is clear that the NCP process has global scope from the host-country perspective.
For the purposes of this chapter, we want to focus on specific issue categories, namely
employment and industrial relations and human rights. As seen in Table 3, approximately one half
of the instances through 2018 included issue of employment and industrial relations, and
approximately one third included issue of human rights. It is apparent that both these categories
have been featured prominently in NCP activities. Therefore, the NCP process appears to have
relevance to labour standards.
The process and content of NCP instances is an understudied subject within international
economic policy and global political economy. In order to give some sense of the potential here,
we are going to consider only a handful of instances. The chosen instances are characterized by
having some minimal level of commentary on them outside of the NCP reports themselves. These
cases give a sense of the kinds of instances related to labour standards with which the NCP system
engages, as well as potential outcomes.
Unilever
A first instance of the role of the OECD Guidelines in the realm of labour standards is that
of a Unilever tea factory in Pakistan considered by the United Kingdom NCP. In 2009, the
International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied
Workers’ Association (IUF) of Pakistan wrote to the UK NCP concerning the operations of
Unilever Pakistan Ltd. in its Khanewal factory.15 The allegation was a breach of Pakistan’s labour
law in which temporary workers were to be reclassified as permanent after a nine-month period.
Unilever reported to the UK NCP that the employees were contract employees via independent
service providers for ‘non-core operations’. The UK NCP offered to undertake a
‘conciliation/mediation’ process to which both partied agreed. A meeting took place in London
and, as reported by the UK NCP, conciliation took place without the need for mediation.
With regard to outcomes, an Annex to the NCP report pointed to a number of areas of
agreement, namely commitments by Unilever.16 These included a ‘significant change’ in the
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employment model at the Khanewal factory; an increase in permanent positions; the establishment
of a joint IUF/Unilver committee to oversee implementation; ensuring ‘appropriate payment’ of
temporary workers from third-party services, as well as legally-mandated social security
contributions; a commitment to continue operations; and a commitment not to retaliate against
employees involved in the NCP instance.
In a consideration of this case, Brookes (2017) noted:
By signing onto the OECD Guidelines, Unilever had publicly committed to an array
of social standards. Although these international codes of conduct are voluntary,
they signal to employees and the international community a willingness to meet
certain expectations, and if these expectations are not met, then there are grounds
for raising the matter with an investigative body (p. 936).
Brookes further noted that the IUF’s use of the OECD Guidelines ‘assist(ed) in shaping
the employment relationship’ (p. 938, emphasis added). This is a relatively strong statement that
hints at some potential for the Guidelines in the realm of labour standards.
Deutsche-Post DHL
Another example of the potential of the Guidelines for labour standards was taken up by
the German NCP in 2012 with cooperation from the Colombian and Turkish NCPs. This case
concerned the operations of Deutsche-Post DHL in a large number of host countries (Bahrain,
Colombia, Guatemala, Hong Kong, China, India, Indonesia, Malawi, Norway, Panama, South
Africa, Turkey, United States, and Vietnam).17 The complaint was brought by the UNI Global
Union and the International Transport Workers’ Federation. It alleged that Deutsche-Post DHL
violated workers’ rights to join unions, that it had discriminated against African American and
Hispanic workers in the United States, had excessively used agency workers, and used
inappropriate polygraph tests on workers.
The German NCP’s work on this complaint was very detailed at both the issue and country
level. The agency worker and polygraph issues were dismissed, citing the Guidelines and national
legal systems. The focus then became workers’ rights to form and join trade unions in Colombia,
India, Indonesia, Turkey and Vietnam. Mediation efforts were conducted in 2013 on these issues.
Though quite detailed, they were not to the complete satisfaction of the complainants. All parties
agreed, however, that the mediation efforts were conducted in good faith.
Fédération Internationale de Football Association
A third example of the potential of the Guidelines for labour standards involves activities
of the Switzerland-based Fédération Internationale de Football Association (FIFA) in Qatar. This
was submitted by the Building and Woods Workers’ International (BWI) in 2015 through the
Swiss NCP. At issue were alleged human rights violations of migrant workers constructing
facilities for the 2022 FIFA World Cup in Qatar.18 These violations included lack of safe
accommodations, non-payment of wages, discrimination, and the bonded-labour ‘kalafa’ system
that gives employers undue control over employees.19
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The Swiss NCP offered to mediate between FIFA and BWI, and both parties accepted. As
a result, six mediation sessions took place during 2016, and a mutually-agreed outcome was
reached in early 2017. This outcome included five areas of agreement: FIFA’s use of its leverage
on Qatari-based actors; the recognition of new FIFA human rights statutes; a labour condition
monitoring process; the establishment of a mechanism for worker complaints and grievances; and
the establishment of an oversight/advisory body.
Beyond these five areas of agreement, FIFA explicitly committed itself to the OECD
Guidelines, to continue to work with BWI in periodic meetings, and to eschew the kalafa system.
Beyond this instance, BWI has played an important role in addressing labour standards issues in
the construction industry (e.g., Davies et al., 2011). The fact that this organization reached for the
OECD Guidelines as a tool and followed through with the NCP process is notable and perhaps
indicative of some forward progress, although allegations of labor violations continued.20
KOMSCO Daewoo
We stated above that freedom from forced labour is an ILO core labour standard about
which there is significant international consensus. In at least one NCP instance, the issue of forced
labour was front and center. This was the case of the Korea-based KOMSCO Daewoo’s operations
in Uzbekistan.21 In 2014, the Korean Transnational Corporations Watch, Cotton Campaign, and
Anti-Slavery International submitted a complaint to the Korean NCP regarding KOMSCO
Daewoo’s cotton linter pulp factory in Uzbekistan supplying material to produce Korean
banknotes. The concern was with the use of forced labour in the Uzbek cotton sector, something
that has been well documented (e.g., ILO, 2015).
As it turned out, the Korean NCP did not take up this issue. In its opinion, KOMSCO
Daewoo was not in a position to influence the supply of cotton for the factory because they could
not influence what was effectively a state-owned enterprise. It is worth quoting from Korea
National Contact Point (2015) to appreciate the limits of the NCP process in cases such as this:
In this specific instance, it is hard to deny the existence of link between the
respondents’ business conduct and the issue raised, as the respondents are in the
same supply chain with the government of Uzbekistan. However, Korean NCP
found that it does not seem that the respondents breached due diligence duties on
human rights required by the Guidelines or contributed to child labor and forced
labor. Furthermore, the respondents also do not seem to be in a position of using
leverage to the government of Uzbekistan (no page number).
With this statement, the Korea NCP dropped the case. This illustrates the limitations of the
Guidelines to address GVCs once these include state-owned enterprises. As documented by Soh
and Nam (2018), it also reflects a lack of independence of the Korean NCP.
Starbucks
A final instance to be considered in this paper is that of Starbucks in Chile. This instance
was brought to the Chilean NCP by the Central Unitaria de Trabajadores de Chile (CUT) in 2014.
The allegations brought by CUT were of alleged anti-union activities, including violations of the
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right to organize, that went against both the employment and industrial relations and the human
rights provisions of the Guidelines.22 Starbucks initially took a very defensive position, incorrectly
alleging that the OECD Guidelines did not apply to its Chilean subsidiary. At issue was whether
Starbucks Chile was really an MNE, and the Chilean NCP determined that it was, Starbucks being
a horizontally-integrated entity.23
A further issue was the use of the term ‘partner’ Starbucks Chile used to refer to its
employees. The implication being that as ‘partners’ they were not in need of unionization, but the
Chilean NCP disagreed with this point of view given that employees did not own equity in the
company. Marzan (2016) noted the significance of this outcome:
The (Chilean) NCP frowned upon Starbucks’ attempt to call workers anything other
than employees or workers. Starbucks is only one of many companies that use any
term but the statutory one. Statutory terms generally connote legal meanings that
provide specific, protective rights. Many companies that use nonlabor terms to refer
to their employees are headquartered in the United States, which is more lax than
other countries in this regard. These companies attempt to extend the same labels
to their overseas employees. The Starbucks case shows how the practice violates
international norms (p. 176).
While we do not want to claim too much here, this does seem to be a case where a leading
US-based MNE encountered an emerging system of global governance on this issue. As noted by
Marzan (2016), this could also apply to Walmart and Home Depot, two other US-based retail
MNEs.
As part of its process, the Chilean NCP offered both an initial assessment and its mediation
services, meeting with both parties. As it turned out, the Chilean NCP found a lack of good faith
on the part of Starbucks and therefore halted it mediation efforts. Subsequent to the release of its
final statement in 2015, there was a strike by Starbucks workers in Chile. However, the two parties
did reach an accord, including on a new collective bargaining agreement. While we cannot imply
direct causality, it does appear that the NCP process ultimately helped the two parties reach
agreement.
ASSESSMENT
Brookes (2017) suggested that what she termed transnational labour alliances (TLAs) can draw
upon institutional power to help to enforce labour standards. She also noted that the OECD
Guidelines can function as a source of institutional power. There is indeed evidence that the
content of the OECD Guidelines, together with the (imperfect) functioning of the NCP system has
been a source of institutional power in some notable instances. As we have seen here, TLAs of
various kinds have chosen to utilize the NCP progress. This might just be the result of few viable
alternatives, but progress should be recognized where it exists.
That said, the instance on forced labour in the Uzbek cotton sector speaks to the limitations
of the actual application of the OECD Guidelines through GVCs. Despite language in Guidelines
12 and 13 supporting the application of the Guidelines upstream to suppliers, the barrier of a state-
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owned enterprise made this impractical.24 In this case, despite some forward progress, the forced
labour issue has not yet been completely resolved (e.g., ILO, 2018 and McGuire and Laaser,
forthcoming).
CONCLUSION
The OECD Guidelines for Multinational Enterprises are an emerging set of global norms with
some significant relevance for labour standards. However, they fall short of what would be
required if we were to take such standards seriously (as this volume does). For example, in their
review of the role of FDI in development processes, Goldin and Reinert (2012) call for binding,
de minimus standards on MNEs. Similarly, Anderson (2009-2010) called for a ‘mandatory legal
framework’ in this area. The Guidelines do not offer any such features.
Why is a more binding structure needed? Take for example the review of the Guidelines
by Ruggie and Nelson (2015). One of their conclusions was that: ‘What remains generally unclear
from the available documentation is what actual remedy complaints receive or what changes in
company policies and practices result from NCP findings and remediation’ (p. 121). If these
fundamental outcomes remain ‘generally unclear’, then the Guidelines are clearly unsatisfactory.
Violations of the Guidelines in the realm of labour standards or other covered issues must result
in remediation. If remediation is not undertaken, then there must be meaningful consequences.25
To take one counterexample, nearly the entire structure of the World Trade Organization
is binding on member countries due to a robust dispute settlement mechanism. The conditionality
structures of the IMF and World Bank also offer a significant degree of binding in their dealings
with those countries partaking of their grant and lending services. Given the far-reaching impacts
of FDI on multiple aspects of development processes (including labour standards), it would seem
reasonable to expect binding, de minimis governance system for MNE behavior.
One example of strengthening the global governance system with regard to MNE behavior
would be to begin to move investor state dispute settlement (ISDS) provisions in the direction of
MNE responsibilities rather than just MNE rights. As suggested by Elliott (2019) and Compa
(2019), the arbitration processes of ISDS could be invoked by labor organizations to seek remedies
for labour standard violations. This is one potentially-fruitful example of an alternative approach.
Other approaches at the national level are also possible. For example, in the South Korea
context, Soh and Nam (2018) made a number of suggestions. These include both increased non-
financial reporting requirements focused on due diligence and the imposition of obligations via
civil or even criminal liability. Such decisions would rest with signatory country governments.
Although the 2011 Guidelines are an improvement upon previous versions, they are
inadequate as a system of labour standards narrowly and global governance more broadly. To
quote Ruggie and Nelson (2015) once again, ‘Forty years of pure voluntarism should be long
enough to conclude that companies cannot be counted on to do the job by themselves’ (p. 122).
Consequently, the reasonable expectation for robust global governance of MNE behavior,
including in the area of labour standards, remains to be fulfilled.
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‘Initial assessment’.
Locke, R.M., F. Qin and A. Brause (2007), ‘Does monitoring improve labor standards? Lessons
from Nike’, Industrial and Labor Relations Review, 61(1), 3-31.
Maheandiran, B. (2015), ‘Calling for clarity: How uncertainty undermines the legitimacy of the
dispute resolution system of the OECD Guidelines for Multinational Enterprises’, Harvard
Negotiation Law Review, 20, 205-244.
Marzan, C.F.R. (2016), ‘NCP Starbucks decision helps advance compliance with OECD
Guidelines’, International Human Rights Case Law, 2(2), 175-180.
McGuire, D. and K. Laaser (forthcoming), ‘You have to pick: Cotton and state-organized forced
labour in Uzbekistan’, Economic and Industrial Democracy,
Murray, J. (2001), ‘A new phase in the regulation of multinational enterprises: The role of the
OECD’, Industrial Law Journal, 30(3), 255-270.
Organization for Economic Cooperation and Development (2011), OECD Guidelines for
Multinational Enterprises: 2011 Edition, Paris: OECD.
Organization for Economic Cooperation and Development (2018), OECD Due Diligence
Guidance for Responsible Business Conduct, Paris: OECD.
Organization for Economic Cooperation and Development (2019a), Guide for OECD Guidelines
National Contact Points on Issuing Recommendations and Determinations.
Organization for Economic Cooperation and Development (2019b), Progress Report on National
Contact Points for Responsible Business Conduct.
Punto Nacional de Contacto de Chile (2015), ‘Declaración Final’.
Reinert, K.A., O.T. Reinert and G. Debebe (2016), ‘The new OECD Guidelines for Multinational
Enterprises: Better but not enough’, Development in Practice, 26(6), 816-823.
Robinson, S. (2014), ‘International obligations, state responsibility and judicial review under the
OECD guidelines for multinational enterprises regime’, Utrecht Journal of International and
European Law, 30(78), 68-81.
Ruggie, J.G. (2008), ‘Protect, respect and remedy: A framework for business and human rights’,
Innovations, 3(2), 189-212.
13
Ruggie, J.G. and T. Nelson (2015), ‘Human rights and the OECD Guidelines for Multinational
Enterprises: Normative innovations and implementation challenges’, Brown Journal of World
Affairs, 22(1), 99-127.
Santner, A.L. (2011), ‘A soft law mechanism for corporate responsibility: How the updated OECD
Guidelines for Multinational Enterprises promote business for the future’, George Washington
University International Law Review, 43(2), 375-388.
Shavin, C. (2019), ‘Unlocking the potential of the new OECD Due Diligence Guidelines on
responsible business conduct’, Business and Human Rights Journal, 4(1), 139-145.
Soh, C. and S. Nam (2018), ‘Business and human rights case study of Korean companies operating
overseas: Challenges and a new National Action Plan’, Human Rights Quarterly, 40(2), 287-316.
Swiss National Contact Point for the OECD Guidelines for Multinational Enterprises (2017),
‘Final statement on the Fédération Internationale de Football Association (FIFA) submitted by the
Building and Wood Workers’ International (BWI).
ter Harr, B. (2018), ‘FIFA, Qatar, Kalafa: Can the World Cup Create a Better World of Work?’,
International Labor Rights Case Law, 4, 128-132.
United Kingdom National Contact Point for the OECD Guidelines for Multinational Enterprises
(2009), ‘Final statement on the complaint from the International Union of Food, Agricultural,
Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association against Unilever on
Pakistans’ Khanewal factory’.
United Nations Human Rights Office of the High Commissioner (2011), Guiding Principles on
Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’
Framework, New York: United Nations.
United Nations Special Representative on Human Rights and Transnational Corporations. (2010),
‘Updating the guidelines for multinational enterprises discussion paper’, New York: United
Nations.
Van Putten, M. (2018), ‘The NCP work: Dancing on a cord’, in OECD Guidelines for
Multinational Enterprises: A Glass Half Full, Paris: Organization for Economic Cooperation and
Development, 51-54.
Wilde-Ramsing, J.M. and M.G. Ingrams (2018), ‘High time for government action to make the
OECD Guidelines a force for sustainable FDI’, Columbia FDI Perspective No. 239.
14
Table 1: The 2000 and 2011 OECD Guidelines
Number
in 2011
Version
2000 Version 2011 Version
1 Contribute to economic, social and
environmental progress with a view to
achieving sustainable development.
Contribute to economic, environmental and
social progress with a view to achieving
sustainable development.
2 Respect the human rights of those affected
by their activities consistent with the host
government’s international obligations and
commitments.
Respect the internationally recognized human
rights of those affected by their activities.
3
Encourage local capacity building through
close co-operation with the local
community, including business interests,
as well as developing the enterprise’s
activities in domestic and foreign markets,
consistent with the need for sound
commercial practice.
Same as 2000 version.
4
Encourage human capital formation, in
particular by creating employment
opportunities and facilitating training
opportunities for employees.
Same as 2000 version.
5 Refrain from seeking or accepting
exemptions not contemplated in the
statutory or regulatory framework related
to environmental, health, safety, labour,
taxation, financial incentives, or other
issues.
Refrain from seeking or accepting exemptions
not contemplated in the statutory or regulatory
framework related to human rights,
environmental, health, safety, labour, taxation,
financial incentives, or other issues.
6
Support and uphold good corporate
governance principles and develop and
apply good corporate governance
practices.
Support and uphold good corporate
governance principles and develop and apply
good corporate governance practices,
including throughout enterprise groups.
7 Develop and apply effective self-
regulatory practices and management
systems that foster a relationship of
confidence and mutual trust between
enterprises and the societies in which they
operate.
Same as 2000 version.
8 Promote employee awareness of, and
compliance with, company policies
through appropriate dissemination of these
policies, including through training
programs.
Promote awareness of and compliance by
workers employed by multinational
enterprises with respect to company policies
through appropriate dissemination of these
policies, including through training programs.
9
Refrain from discriminatory or disciplinary
action against employees who make bona
fide reports to management or, as
appropriate, to the competent public
authorities, on practices that contravene
the law, the Guidelines or the enterprise’s
policies.
Refrain from discriminatory or disciplinary
action against workers who make bona fide
reports to management or, as appropriate, to
the competent public authorities, on practices
that contravene the law, the
Guidelines or the enterprise’s policies.
15
Number
in 2011
Version
2000 Version 2011 Version
10 Encourage, where practicable, business
partners, including suppliers and
subcontractors, to apply principles of
corporate conduct compatible with the
Guidelines.
Carry out risk-based due diligence, for
example by incorporating it into their
enterprise risk management systems, to
identify, prevent and mitigate actual and
potential adverse impacts as described in
paragraphs 11 and 12, and account for how
these impacts are addressed. The nature
and extent of due diligence depend on the
circumstances of a particular situation.
11
Avoid causing or contributing to adverse
impacts on matters covered by the Guidelines,
through their own activities, and address such
impacts when they occur.
12 Seek to prevent or mitigate an adverse impact
where they have not contributed to that
impact, when the impact is nevertheless
directly linked to their operations, products or
services by a business relationship. This is not
intended to shift responsibility from the entity
causing an adverse impact to the enterprise
with which it has a business relationship.
13
In addition to addressing adverse impacts in
relation to matters covered by the Guidelines,
encourage, where practicable, business
partners, including suppliers and sub-
contractors, to apply principles of responsible
business conduct compatible with the
Guidelines.
14 Engage with relevant stakeholders in order to
provide meaningful opportunities for their
views to be taken into account in relation to
planning and decision making for projects or
other activities that may
significantly impact local communities.
15 Abstain from any improper involvement in
local political activities (11 in 2000
version).
Same as 2000 version.
16
Table 2: National Contact Points by Country (* =OECD Member)
Country National Contact Point
Argentina Ministry of Foreign Affairs
Australia * Foreign Investment Division of the Treasury
Austria * Federal Ministry for Digital and Economic Affairs
Belgium * Federal Public Services Economy
Brazil Secretariat of International Affairs of the Ministry of Finance
Canada * Federal Government Interdepartmental Committee
Chile * Ministry of International Relations
Colombia Ministry of Commerce, Industry and Tourism
Cost Rica Ministry of Foreign Trade
Czech Republic * Ministry of Industry and Trade
Denmark * The Mediation and Complaints-Handling Institution for
Responsible Business Conduct
Egypt Ministry of Investment and International Cooperation
Estonia * Ministry of Economic Affairs and Communications
Finland * Ministry of Economic Affairs and Employment
France * General Directorate of the Treasury
Germany * Federal Ministry for Economic Affairs and Energy
Greece * Directorate of International Trade Policy, Ministry of Economy and
Development
Hungary * Ministry of Finance
Iceland * Ministry of Industries and Innovation
Ireland * Department of Business, Enterprise and Innovation
Israel * Ministry of Economy and Industry
Italy * Ministry of Economic Development
Japan * Ministry of Foreign Affairs
Jordan Not listed
Kazakhstan Ministry of Industry and Infrastructural Development
Korea, South * Ministry of Trade, Industry and Energy
Latvia * Ministry of Foreign Affairs
Lithuania * Ministry of Economy and Innovation
Luxembourg * Ministry of Economy
Mexico * The Ministry of Economy
Morocco Agency for Investment Development
Netherlands * Ministry of Foreign Affairs
New Zealand * Ministry of Business, Innovation and Employment
Norway * National Contact Point for Responsible Business Conduct
Peru Private Investment Promotion Agency
Poland * Ministry of Investment and Development
Portugal * Directorate-General for Economic Activities of the Ministry of
Economy
Romania Department for Foreign Investment and Public Private Partnership
Slovak
Republic *
Ministry of Economy
Slovenia *
Ministry of Economic Development and Technology
17
Country National Contact Point
Spain * Ministry of Industry, Commerce, and Tourism
Sweden * Ministry for Foreign Affairs
Switzerland * State Secretariat for Economic Affairs
Tunisia Ministry of Development and International Cooperation
Turkey * Ministry Industry and Technology
Ukraine Ministry of Economic Development and Trade
United
Kingdom *
Department of International Trade
United States * Department of State
Source: mneguidelines.oecd.org
18
Table 3: National Contact Point ‘Instances’, 2000 to 2018, by NCP Country
Country
NCP
Total
Number
of Cases
Bribery Compe-
tition
Concepts
and
Principles
Consumer
Interests
Disclosure Employment
and
Industrial
Relations
Environ-
ment
General
Policies
Human
Rights
Science
and
Techno-
logy
Taxation
Argentina 14 4 1 2 0 6 6 4 11 3 1 1
Australia 12 0 1 0 1 2 5 3 7 5 0 0
Austria 5 1 0 0 0 0 4 2 1 2 0 0
Belgium 19 3 2 5 2 7 9 5 13 3 0 2
Brazil 26 1 0 4 1 4 16 6 14 7 0 0
Canada 20 0 0 6 0 6 6 10 14 5 0 0
Chile 11 0 0 0 1 0 9 5 1 4 1 0
Colombia 3 0 0 0 0 0 3 0 1 3 0 0
Czech
Republic
6 0 0 0 0 0 6 0 1 1 0 0
Denmark 18 1 0 2 2 1 4 2 6 8 2 0
Egypt 0 0 0 0 0 0 0 0 0 0 0 0
Estonia 0 0 0 0 0 0 0 0 0 0 0 0
Finland 4 2 0 0 0 2 0 3 4 1 0 0
France 27 3 2 3 0 6 20 4 13 6 0 0
Germany 28 2 1 0 2 1 14 5 14 12 0 0
Greece 0 0 0 0 0 0 0 0 0 0 0 0
Hungary 1 0 0 0 0 0 1 0 0 0 0 0
Iceland 0 0 0 0 0 0 0 0 0 0 0 0
Ireland 3 0 0 0 0 0 0 1 2 2 0 0
Israel 2 0 0 0 0 0 0 1 1 0 0 0
Italy 11 0 1 0 2 3 5 2 5 5 0 1
Japan 7 0 0 2 0 1 6 1 3 2 0 0
Jordan 0 0 0 0 0 0 0 0 0 0 0 0
Kazakhstan 0 0 0 0 0 0 0 0 0 0 0 0
Korea, South 10 0 0 0 0 1 7 0 4 6 1 0
Latvia 1 0 0 0 0 1 0 0 0 0 0 0
Lithuania 0 0 0 0 0 0 0 0 0 0 0 0
Luxembourg 1 1 0 0 0 0 0 0 1 0 0 0
Mexico 5 1 0 1 0 1 5 1 0 2 0 0
Morocco 2 0 0 0 1 2 1 0 0 2 0 0
Netherlands 32 2 0 2 3 5 21 7 15 9 0 0
New Zealand 5 0 0 0 1 0 1 1 2 3 0 1
Norway 14 2 0 1 0 2 4 4 5 7 0 0
Peru 4 0 1 1 0 2 2 1 2 1 0 0
Poland 4 0 0 2 0 0 3 0 2 0 0 0
19
Country
NCP
Total
Number
of Cases
Bribery Compe-
tition
Concepts
and
Principles
Consumer
Interests
Disclosure Employment
and
Industrial
Relations
Environ-
ment
General
Policies
Human
Rights
Science
and
Techno-
logy
Taxation
Portugal 0 0 0 0 0 0 1 0 0 0 0 0
Romania 0 0 0 0 0 0 0 0 0 0 0 0
Slovak
Republic
0 0 0 0 0 0 0 0 0 0 0 0
Slovenia 0 0 0 0 0 0 0 0 0 0 0 0
Spain 8 0 0 2 2 0 4 2 1 2 0 0
Sweden 6 0 0 0 0 0 3 2 5 3 0 0
Switzerland 17 1 1 1 0 1 10 2 12 7 0 2
Tunisia 0 0 0 0 0 0 0 0 0 0 0 0
Turkey 3 1 0 0 0 0 2 1 0 0 0 0
United
Kingdom
51 4 2 3 1 7 17 8 35 18 0 1
United States 48 2 1 1 3 10 37 5 15 10 1 1
Percentages 7% 3% 9% 5% 17% 54% 21% 49% 32% 1% 2%
Source: mneguidelines.oecd.org/database/. Note: Because a single case can address more than one issue, summations across case themes can exceed the total
number of cases.
20
Figure 1: National Contact Point Total ‘Instances’ by Year
Source: mneguidelines.oecd.org/database/.
13
16
2627
19
23
18
14
17
24
32
28
41
39
25
28
22
16
0
5
10
15
20
25
30
35
40
45
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
nu
mb
er
21
Figure 2: National Contact Point Instances by MNE Host Country (numbers greater than five)
Source: mneguidelines.oecd.org/database/.
34
3029
21
1816
1312 12
11 1110
9 9 9 98 8 8 8 8 8
7 76 6 6
5 5 5 5 5 5 5 5 5
0
5
10
15
20
25
30
35
40
nu
mb
er
of
inst
ance
s
22
NOTES
1 The ILO core labour standards were established in the 1998 ‘Declaration of Fundamental Principles and
Rights at Work’.
2 Elliott (2017) also noted that ‘focusing on core labor standards does not mean forcing developing countries
to adopt advanced country standards. Nor does it imply uniform systems of industrial relations. The… ILO
conventions defining the core standards allow for broad flexibility in implementation’ (p. 189).
3 The non-binding, soft-law approach reflected pressure from OECD member countries and MNEs
themselves. It is for this reason that Murray (2001) referred to the 1976 Guidelines as ‘abstentionist’.
4 The 2000 revision reflected a 1998 review conference held in Budapest.
5 See United Nations Human Rights Office of the High Commissioner (2011). For background, see also
Ruggie (2008).
6 Ruggie and Nelson (2015) stated: ‘The current OECD Guidelines are fully aligned with the UNGPs in
two specific ways. First, the OECD added a dedicated human rights chapter that replicates the UNGPs’
operationalization of business responsibility to respect human rights, explicitly stating that all human right
are to be respected…. Second, the UNGPs’ formulation of the corporate responsibility to respect human
rights was also enshrined in the Guidelines’ General Policies chapter, which established a new due diligence
requirement for all subjects covered by the Guidelines. With these updates, claims of ignorance… could no
longer be used as a justification by business” (pp. 105-106).
7 For example, Maheandiran (2015) stated the following: ‘The 2011 update to the Guidelines reflects the
UN understanding that while states retain the duty to protect human rights, corporations must respect human
rights and avoid causing or contributing to adverse human rights impacts within the context of their own
activities, have a policy commitment to human rights, seek ways to alleviate or prevent negative human
rights impacts, undertake human rights due diligence, seek ways to prevent or alleviate negative human
rights impacts and provide remedies where such negative impacts have occurred’ (p. 215). There are of
course arguments that MNEs do not have any obligations regarding human rights, but these arguments have
been shown to be fallacious. See, for example, Arnold (2016).
8 There is some resistance from the business quarter to the potential extension of the Guidelines throughout
global value chains. For example, see Business at OECD (2016).
9 See for example Locke, Qin and Brause (2007).
10 See, for example, Robinson (2014). This is made possible by Article 5 of the OECD Convention that
allows the OECD Council to ‘take decisions which, except as otherwise provided, shall be binding on all
the Members’ (emphasis added). OECD Legal Instruments state that ‘Council Decisions are legally binding
on all those Member countries which do not abstain at the time they are adopted. While they are not
international treaties, they do entail the same kind of legal obligations as those subscribed to under
international treaties. Members are obliged to implement Decisions and they must take the measures
necessary for such implementation’. Further, the 2000/2011 Council Decision on the Guidelines includes
four ‘Decisions’ on the NCPs that all use the world ‘shall’. This leads to the conclusion that there is a
binding aspect of the NCP mechanism.
23
11 A statement repeated in various places on mneguidelines.oecd.org is as follows: ‘Any individual or
organisation with a legitimate interest in the matter can submit a case to an NCP regarding a company,
operating in or from the country of the NCP, which has not observed the Guidelines’.
12 See, for example, Reinert, Reinert and Debebe (2016).
13 Kaufmann (2018) noted the following: ‘Institutionally, NCPs come in different shapes and sizes, some
act as independent bodies (e.g. in Denmark, the Netherlands and Norway), other (the majority) are based
in one or more departments of the government, sometime following an interagency model (e.g. Canada,
Germany, Switzerland, UK, US)’ (p. 30). Van Putten (2018) stated: ‘The substantial differences in the
organizational structure, independence, final results of NCPs’ efforts and financial resources ultimately is
a risk of weakness for all…. The absence of an equal international level playing field in (which) one NCP
might declare a specific instance not admissible, while another does take up the case, is detrimental’ (p.
53). Robinson (2014) was blunt in this regard, stating that ‘simply put, the current reality is that the NCP
system is in poor shape’ (p. 72).
14 This third flaw was explored in some detail by Maheandiran (2015). Maheandiran pointed out that this
issue is even active in the NCP assessment stage. She stated: ‘If the method to be used is solely
determinative, then a high evidentiary bar at this stage and throughout the process is essential…. However,
if the role of the NCP is mediating a dispute, the mere existence of a dispute within the scope of the
Guidelines would be sufficient to trigger a specific instance, rather than being barred by a high evidentiary
requirement’ (p. 232).
15 The following summarises United Kingdom National Contact Point for the OECD Guidelines for
Multinational Enterprises (2009).
16 See Annex to United Kingdom National Contact Point for the OECD Guidelines for Multinational
Enterprises (2009). For the IUF statement on this NCP instance, see iuf.org/casualtea/.
17 The following summarises German National Contact Point for the OECD Guidelines for Multinational
Enterprises (2014).
18 The following summarises Swiss National Contact Point for the OECD Guidelines for Multinational
Enterprises (2017).
19 For more background, see Ganji (2016).
20 See, for example, ter Harr (2018).
21 The following summarises Korea National Contact Point (2015) and draws upon Soh and Nam (2018).
22 The final statement in this case is only available in Spanish as Punto Nacional de Contacto de Chile
(2015) but see also Marzan (2016).
23 Given the language in the OECD Guidelines regarding supply chains or GVCs, the Starbucks argument
was indeed quite off course.
24 Citing Korean sources, Soh and Nam (2018) reported dissatisfaction with the operation of the Korea NCP
on the part of civil society groups in Korea and even with the Korean National Assembly.
24
25 Ruggie and Nelson (2015) also stated: ‘Few governments have publically stated that they will impose
any material consequences in the case of a company’s noncooperation with an NCP or a finding against a
company’ (p. 122). The only exception to this appears to be the Canadian government. Similar issue were
also raised by Wilde-Ramsing and Ingrams (2018).