Specific Instance Process
The OECD Guidelines’ grievance mechanism is known as the “Specific Instance” process. A Specific Instance raises a complaint about conduct by an enterprise that is alleged to be inconsistent with the recommendations contained in the Guidelines. NCPs will consider all complaints they receive, which may be brought by a community affected by a company’s activities, a company’s employees, members of a trade union, an NGO, or an individual. A party filing a Specific Instance may act on behalf of other identified and concerned parties. Generally, issues should be dealt with by the NCP of the country in which the issues have arisen. Therefore, the USNCP generally acts on Specific Instances that make allegations related to issues arising in the United States or regarding the activities of U.S. headquartered companies operating in countries which have not established an NCP.
Submitting a Specific Instance
To consider a Specific Instance’s admissibility, NCPs require sufficient detailed information from the submitter:
- Submitters must have a specified interest in the case, be in a position to supply information about it and have a clear view of the outcome they wish to achieve.
- Submitters must specify in the complaint which chapters or paragraphs in the Guidelines they consider to be breached by the company.
Filing instructions for submission of Specific Instances to the USNCP are available here.
The USNCP’s assessment of Specific Instances is evidence-based, and parties are encouraged to substantiate their claims with facts. Specific Instances falling outside the scope of the Guidelines or complaints that are not substantiated will not be considered. See the below “Specific Instance Submission Guidance” in the Resources section for critical information needed for a Specific Instance to be considered by the USNCP. If the Specific Instance is deemed to be material and substantiated, the USNCP will offer the parties to the dispute its mediation and conciliation services.
Text explanations of our procedures are available in English, French and Spanish:
The USNCP will provide a formal written response to the submitter and written notification to the subject company within two weeks of receipt of a Specific Instance. After receiving a written response to the Specific Instance from the company, the USNCP will undertake an Initial Assessment of the Specific Instance. The USNCP may request further information of the parties and will be open to the submission of amendments, clarifications or additional information from the parties throughout the process. The Initial Assessment does not determine whether the company has acted consistently with the Guidelines, but rather is a process to determine whether the issues raised are bona fide and merit further consideration by the NCP. Where necessary, the NCP will seek the guidance of the OECD Investment Committee regarding the interpretation of the Guidelines in particular circumstances. Per the Guidelines’ NCP Specific Instance Procedural Guidance, the criteria for determining the admissibility of the Specific Instance during the Initial Assessment include:
- Identity of the party and its interest in the matter
- Whether the issue is material and substantiated
- Likely link between the enterprise’s activities and the issue raised
- Relevance of applicable law and procedures, including court rulings
- Treatment of similar issues in other domestic or international proceedings
- Contribution of the specific issue to the purposes and effectiveness of the Guidelines
During the initial assessment and throughout the process, the USNCP will encourage the parties to resolve their differences through direct dialogue.
If the USNCP determines that the Specific Instance is material and substantiated and meets the other OECD criteria, it will contact the parties involved and offer mediation to help resolve the issues raised. In order for the mediation to be successful, the USNCP routinely reminds parties that all sides must abide by the principle of good faith and confidentiality articulated in the Procedural Guidance to the NCP Specific Instance Process and the Commentary on the Procedural Guidance for NCPs. The mediators require that parties sign a Mediation Agreement, under which the parties agree to maintain the confidentiality of all information disclosed in the course of the mediation.
The preferred course of action is to bring the parties together for joint mediation sessions. It can, however, prove useful for the mediator to talk to the parties separately. The purpose of these talks, which are conducted by a neutral third party mediation service, is to facilitate a conversation between the parties involved, to find adequate solutions under the Guidelines.
Meet the Mediators
When providing mediation, the USNCP offers the services of objective and neutral mediators employed by the U.S. Federal Mediation and Conciliation Service (FMCS). In order to introduce each party to the FMCS and its conflict-resolution services, after offering mediation services in the Initial Assessment, the USNCP offers to host a one hour information session separately with each party during which representatives can raise any questions or concerns about the mediation process as well as get to know the mediators.
Participation in this information session does not mean either party agrees to participate in mediation; rather it is simply an opportunity to better inform each party about the mediation process and for them to meet their mediators. For cases which go to mediation, each party is required to sign the FMCS Mediation Agreement, which includes provisions for confidentiality and other requirements. If agreement is reached in mediation, the parties are requested to put it in writing and sign it, and it will be given to the USNCP. They are also asked to indicate to the USNCP what wording, statement, or documents can be made public.
FMCS is an independent U.S. government agency with more than 65 years of experience resolving labor-management conflicts and promoting cooperative workplace relationships domestically and abroad. FMCS mediators are labor relations and conflict management professionals with years of training and experience in helping parties work through issues that separate them in complex individual, collective, and multi-party disputes. FMCS mediators regularly help parties identify the interests underlying their disputes, improve their communications and problem-solving skills and create an environment in which they can work together and achieve consensus resolutions of both the dispute at issue, and future conflicts that inevitably arise in any workplace.
Selection of Mediators
FMCS mediators are selected on a case-by-case basis in accord with their individual expertise in the specific issues raised in the submission.
The Final Statement
The Specific Instance process can end at one of several different points: 1) mediation is not offered by the USNCP; 2) one or both parties refuse the offer of mediation; 3) mediation is accepted but the parties cannot reach an agreement, or; 4) the parties succeed in reaching agreement on substantial points in mediation. Once the process has been deemed complete, a Final Statement will be drafted by the Office of the USNCP and made public here, after review and comment by the Parties. Where possible and when agreed upon by the parties, the terms of the agreement reached in mediation will be made public in the interest of transparency and accountability. When parties are offered mediation and agree, the outcome of the Final Statement text is agreed upon by the parties.
The Final Statement will protect information deemed to be sensitive by either party. It will provide information on the allegations on which the Specific Instance is based, including which Guidelines were mentioned. Nothing discussed during mediation will be put in the Final Statement without the agreement of both parties, per the confidentiality clause.
The Final Statement will include the below information:
- Details of the parties, subject to any need to preserve the confidentiality of sensitive information;
- A summary of the Specific Instance process;
- Substance of the Specific Instance;
- Role of other NCPs, if applicable, and the role of Interagency Working Group;
- If applicable, information detailing the decision to offer mediation based on the initial assessment and admissibility criteria outlined above;
- If applicable, information regarding the outcome of the mediation or a statement agreed by the parties which summarizes the outcome;
- If applicable, the reason why the mediation talks were ended without an agreement;
- If applicable and deemed appropriate by the USNCP, recommendations as to how the Guidelines are to be implemented.
The USNCP will coordinate with the Interagency Working Group for the OECD Guidelines and with the parties on when to end the mediation phase and on what information to include in the Final Statement. A draft of the Final Statement will be sent to the parties who will be asked to make any comments and check the facts. The USNCP has the discretion to make any necessary factual changes before sending the final version of the statement to the parties.
If mediation is successfully completed and an agreement is reached, parties will be asked to submit a confidential follow-up report six months later providing an update on the status of their agreement and any impacts.
Once a Specific Instance is submitted, the parties to that Specific Instance are expected to strictly respect the confidentiality of all communications during the Specific Instance process. Parties may publicly reference the existence or filing of the Specific Instance, but should not disclose information learned during the USNCP process. A failure to honor confidentiality expectations may be considered bad faith and may lead to the USNCP terminating the process. At the conclusion of the process, if the parties involved have not agreed on a resolution of the issues raised, the parties are free to communicate about and discuss these issues, so long as information and views provided during the proceedings by any party involved remain confidential, unless that party agrees to their disclosure or it would be contrary to the provisions of national law.
In order for the mediation to be successful, all parties to the proceedings must abide by the principle of good faith and confidentiality articulated in the Commentary on the Procedural Guidance for NCPs (Section I of the OECD’s Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises). This is also why the USNCP will require the parties upholding confidentiality to refrain from campaigning against the other party and/or using the media for any such purpose if mediation is offered and accepted.