The Promotion of Responsible Business Conduct and the New Text of the OECD Guidelines for Multinational Enterprises

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The Promotion of Responsible Business Conduct and the New Text of the OECD Guidelines for Multinational Enterprises

in The Journal of World Investment & Trade


I See Fatouros, 1995; Whitherell, 1995; Engering, 1996; Sacerdoti, 1997; Messing, 1997; Daly, 1998; and Symposium, 1998. 2 OECD.1), 1996b; Kodama, 1998; and Vadcar, 1998. 3 DAFFE/MAi/NM(98)2.

4 See, for instance, DAFFE/NtAi/[N(98)1; DAFFE/MAI(98)10. s Already in 1997, CIME received written proposals from Belgium, the United Kingdom and the Trade Union Advisory Committee (TUAC) for a new review of the Guidelines (DnFFE/Itw/It�tE(97)14, 15, 16, 19, 20 and 21; and DAFFE/IrrV/IME/M(97)2). In June 1998, CIME decided to embark on the review with a view to "save" the N4Ai negotiations, whose failure was already evident (DAFFE/InnE(98)3). The review was then begun officially at the end of a special Conference convened on the initiative of the OECD in Budapest from 16 to 18 November 1998. An overview of the topics submitted by the Cite to Members during the Conference is contained in DAFFE/IrvtE(9H)14; DAFFE/lME(98)15; DAFFE/IME(98)10/REvl. For a brief account of the works of this Conference, see DAFFE/IME(98)18. 6 See Juillard, 1994 and 1996; Geist, 1995; Brewer, 1995; and Wilkey, 1995.

7 On 21 June 1976, the OECD Ministerial Council also issued three Decisions that, unlike the Guidelines and the Declaration, are binding. These latter Decisions, however, just impose some procedural obligations in the field of service of notices, information, consultation and co-operation. These three Decisions, together with the Guidelines and the Declaration of OECD Member countries, have been reviewed from time to time. During the last review, concluded in 1991, OECD Members approved another Annex to the Declaration concerning the elimination of conflicting requirements arising from their domestic laws. Also, the OECD Council issued a decision on the matter. Therefore, the OECD instruments concerning foreign investments and the activity of multinational enterprises are, so far, seven overall. See Blade, 1980; Brownlie, 1980; Vogelaar, 1980; Levy, 1984; OECD, 1992; and Van Eyk, 1995. 1 For the sake of convenience, also as far as the UN Draft Code of Conduct is concerned, this article will use the phrase "multinational enterprise", although the UN documents adopt the phrase "transnational corporation", the latter being fitter to the effect of underlining the circumstance that an enterprise carrying on its business in several States can seldom be regarded as truly "multinational" due to the fact that it operates quite independently from its home country; see UN Commission on Transnational Corporations, 1983, p. 159. See also Muchlinski, 1995.

9 See Spr6te, 1990; Muchlinski, 1995; and Waldc, 1995.

111 This issue is the subject of the Guideline on Science and Technology which, although it is quite detailed, seems not to be an adequate reply to the lively claims of the developing countries which, in the framework of the United Nations and in particular in the framework ofUNCTAD, have asked for the preparation of a special code of conduct on trade transactions concerning transfers of technology from developed to developing countries. This code, too, should have been a means to govern the activity of multinational enterprises in order to secure a new international economic order. However, also in this case the negotiations did not reach any result. See Yusuf, 1991.

� � This is discussed in more detail in Section VII of this article. �z The Guideline on Employment and Industrial Relations is clearly inspired by the ILO Convention No. 87 of 1948 on freedom of association and protection of the right to organize, the Ilo Convention No. 98 of 1949 on the right to organize and bargain collectively, the ILO Convention No. 100 of 1951 on equal remuneration for male and female workers and the IW Convention No. 111 of 1958 on discrimination in employment and occupation. 13 Owing to the tripartite structure of the ILO, the standards of the 1977 Tripartite Declaration still represent a useful minimum level in view of the harmonization of domestic laws of its Member countries on the matter.

" See generally Sauv6 and Schwanen, 1996; Sacerdoti, 1997; Brewer and Young, 1998a; and Vandevelde, 1998.

15 Some environmental disasters provoked by multinational enterprises operating as an international group of companies have, in recent years, drawn the attention of the public, as well as that of scholars and academics, to the topic ofliability-based on the principle "the polluter pays"-both of the parent company and of its home country for environmental damages provoked by its foreign entities which are formally independent, being endowed with a distinct legal personality. Such topic arises from the quite absolute "impunity" enjoyed in principle by the parent company, owing to the fact that it operates in countries different from the home one through separate companies. See Handl, 1980; Handl and Lutz (eds.), 1989; Francioni, 1991; Scovazzi, 1991; Smets, 1993; Murase, 1995; and Hunter and Porter, 1999, especially pp. 172 et seq. See also, UN Department of Economic and Social Development, 1993. The 1991 OECD Guideline on Environmental Protection is undoubtedly not fit to solve these problems since it is based on the principle of prevention, instead of on the principle "the polluter pays". Likewise, this Guideline is inadequate for the solution of other issues such as, for instance, the production, employment and trade of the so- called genetically-modified organisms by multinational enterprises operating in the agricultural and food fields. m For instance, the exploitation by Shell and other multinational enterprises of oil deposits in the region of Oganiland, in Nigeria, has often been widely criticized by the public on account of the bloody encounters between the Nigerian army and members of the ethnic minorities living in the exploited regions. See Eaton, 1997; and Skogly, 1997. On the issue of the impact of the activity of multinational enterprises on the protection of human rights generally, see Orentlicher and Gelatt, 1993; Wike, 1996; Geer, 1998; Wagner and Popovic, 1998; Joseph, 1999; Tzeutschler, 1999; and Hall, 2000. The Oecu Guidelines as updated by the 1991 Review do not deal with the problem of protection of human rights at all.

17 See UNWCED, 1987, in which the concept of sustainable development was used for the first time. �" See UNDP, 2000, where human development is defined as "the development of the people, for the people and by the people. 19 The involvement of the private sector in international initiatives aimed at the promotion of sustainable development is already in the wishes of the final Report of the Bruntland Commission (UNWCEIJ, 1987). This Report specifically points out that large industrial corporations "should adopt the highest safety and health protection standards practicable and assume responsibility for safe plant and process design and for staff training", p. 223.

2<1 On the contrary, Agenda 21 does not hint at other principles of the ICC Charter such as recommendations for "integration of environmental policies fully into each business as an essential element of management"; "advice to and education of customers, distributors and the public in the safe use, transportation, storage and disposal of products provided"; "precautionary approach to prevent serious environmental degradation, by modifying the manufacturing, marketing or use of products"; and, finally, "promotion of respect for these environmental principles by contractors and suppliers". 21 See Vice, 1992. == BCSD, 1992.

=3 See generally DeSimone and Popoff, 1997.

=a For more information on the activity carried out by the t) for the elimination of child labour and on the pertinent measures adopted by its Member States, see It.o, 1997 and 1998. As regards scholars and academics, see generally Diller and Levy, 1997; Hilowitz, 1997; Lee, 1997; Cox, 1999; Dennis, 1999; and Garg, 1999. 25 See Fandcll, 1994; Kimerling, 1994; Dawkins, 1996; Johnson, 1998; Liubicic, 1998; Morris Groos, 1999; and Williams, 1999. As regards opinions of organizations operating within the framework of the UN, see Hagan, 1998 (as far as the 110 is concerned) and UNCTAD, 1999, especially pp. 345 et seq. 26 See OECD, 1998a; and generally OECD, 1999.

=� In 1995, the U.S. government adopted the Model Business Principles after exchanges of views with representatives of enterprises and employees, just in order to encourage "all businesses to adopt and implement voluntary codes of conduct for doing business around the world that cover at least the following areas: 1. provision of a safe and healthy workplace; 2. fair employment practices, including avoidance of child and forced labour and avoidance of discrimination; 3. responsible environmental protection and environmental practices; 4. compliance with U.S. and local laws promoting good business practices, including laws prohibiting illicit payments and ensuring fair competition; and 5. maintenance, through leadership of all levels, of a corporate culture that respects free expression consistent with legitimate business concerns." 2H However, enterprises can adhere or not to the programme outlined in the 1997 Project, which aims at: 1. concentrating work in stitching centers that can be controlled effectively; 2. enabling from time to time inspections of the stitching centers by surveyors sent by the li.o in order to verify the absence of children of 14 years and younger; and 3. having each enterprise pay the ILO the amount of 0.53 rupees for each soccer ball manufactured as a contribution to the costs of controls made by the Organisation itself, Furthermore, the 1997 Project provides that the participating enterprises supply funds for educational schemes and finance local projects on behalf of the families of children employed in soccer ball stitching.

29 The same characteristics connote the European Community system for eco-management and environmental auditing (called EMAS) set up by the EC Council Regulation No. 1836/93 dated 29 June 1993, and published in EC Official Journal, L 168, 10 July 1993. As regards the activity of the European Community aimed at spreading an attitude of higher respect for the environment by the enterprises operating in the Single Market, it is also worth mentioning the eco-label award scheme provided for by the EC Council Regulation No. 880/92 of 23 March 1992, and published in EC Official Journal, L 99, 11 April 1992. 311 See the Final Report on the 2000 Review submitted by the OECD Secretary General to the OECD Council on 27 June 2000, Doc. C(2000)96/RFV1, p. 2. 3' Already on 3 November 1998, the C1ME stated that "following a successful review, governments and social partners should be in a position to affirm important principles and to send a powerful message that the Guidelines can remain a relevant and adaptable instrument. The Guidelines may also be viewed as a model, subject to modification, that can assist in the search for balance between openness to investment flows and corporate responsibility-an element of the recent debate over globalisation that has also attracted countries' attention"; Oecd, 1998b, p. 4. Then, in the document summarizing the debate held during the 1998 Budapest Conference, the CIME confirmed that "the ultimate objective of the review is to establish a common vision of the Guidelines as part of a framework for the proper functioning of markets and managing globalisation"; DnFFE/IunE(98) 18, p. 3. Furthermore, in this latter document the C1ME stressed that the main consequence of "globalization-related changes is that the OECD Guidelines will have to demonstrate their value-added to other available codes, and to show how they can contribute to the broader international framework for Fiji", p. 4.

3z OECD Guidelines, Preface. 33 In order to examine closely the discussions that took place during the Review on this topic, see DAFFE/IME(98)15, p. 17 ss.; DAFFE/tME(99)9, pp. 3-7; DAFFE/ImE(99)29, p. 4 ss. In particular, for the topic of protection of workers, see PAC/AFF/Lmi,(99)5; while for the topic of environmental protection, see Pnc/AFF/Lnnr(99)6. However, the Commentaries on the new Guidelines prepared by the CimE at the end of the Review-Commentaries that are not an integral part thereof-explain that "self-regulation and other initiatives in a similar vein, including the Guidelines, should not unlawfully restrict competition, nor should they be considered a substitute for effective law and regulation by governments. It is understood that MNEs should avoid potential trade or investment distorting effects of codes and self-regulatory practices when they are being developed." OECD, 1996a, Paragraph 11.

3; The 1998 ILo Declaration has no binding nature. This Declaration and its follow-up are mainly intended to foster the effective adherence to the ILO Conventions on the "core labour standards", that is the Conventions Nos. 87 and 98 on freedom of association and collective bargaining, Nos. 29 and 105 on forced labour, Nos. 100 and 111 on equality of treatment and non-discrimination, and No. 138 on minimum age. It is worth noting that the Declaration aims at influencing domestic policies adopted by ILo Member countries in order to secure respect for the fundamental rights of workers sanctioned by such ILO Conventions, rather than at the conduct of multinational enterprises. The 1977 Tripartite Declaration is, therefore, still the important current ILO instrument to such effect. 35 In order to examine closely this topic, see OECD, 1996a, Paragraphs 19 through 29. 3ó In the Cnvtt Commentaries (OECD, 1996a, Paragraph 31), it is clarified that "sound environmental management is an important part of sustainable development, and is increasingly being seen as both a business responsibility and a business opportunity. Multinational enterprises have a role to play in both respects. Managers of these enterprises should therefore give appropriate attention to environmental issues within their business strategics." "

.17 After the failure of the MAt negotiations, the OECD Directorate for Financial, Fiscal and Enterprise Affairs (DAFFE) tried to use the OECD Web site (<>) as a means of dissemination of information on the activity of the Organisation with a view to securing transparency. The decision to publish the text of two drafts of the new Guidelines-one dated 10 January 2000, the other 15 March 2000-was a token thereof. Also, some comments mailed through the Web on these two drafts were made available on the same site. The scope of this attitude was to increase transparency of the review and to avoid the risk that the activity of the Ota) might again be the object oflively public criticism, as had happened during the MAt negotiations. To the same effect, the CIME published the results of the exchange of views, held in the final part of the review, with BIAC, TunO and other non- governmental organizations such as Amnesty International, Friends of the Earth, GERMANWATCH, OXFAM, TO131 (the Neo Task Force on Business and Industry) and the World-Wide Fund for Nature; see DAFFE/IME/WPG/RD(2000) 16. 3H This Convention came into force on 15 February 1999. As regards the OECD fight against bribery, attention should be paid to the 1996 Recommendation on the Tax Deductibility of Bribes to Foreign Public Officials and 1997 Recommendation on Combating Bribery in International Business Transactions, both adopted before the conclusion ofthe 1997 Convention. These Recommendations are explicitly referred to in the CIME Commentaries on the Guidelines which, on the other hand, clarify that "to address the demand side of bribery, good governance practices are important elements to prevent companies from being asked to pay bribes. In addition, governments should assist companies confronted with solicitation of bribes." (OECD, 1996a, Paragraph 45). See generally Gantz, 1998; Pierros and Hudson, 1998; White, 1998; Corr and Lawler, 1999; and Sacerdoti, 1999.

'9 In its Commentaries on the Guidelines, the Cime thought it appropriate to explain that "bribery and corruption are not only damaging to democratic institutions and the governance of corporations, but they also impede efforts to reduce poverty. In particular, the diversion of funds through corrupt practices undermines attempts by citizens to achieve higher levels of economic, social and environmental welfare." '0 This new Guideline aims, in particular, at involving responsibility of multinational enterprises on the topic of protection of consumer health and safety, by fostering to such effect the adoption of self-regulatory practices in addition to the provisions contained in the various domestic laws. Item 3 is particularly meaningful in this connection: in compliance therewith, a multinational enterprise should "provide transparent and effective procedures that address consumer complaints and contribute to fair and timely resolution of consumer disputes without undue cost or burden". Item 5 is also important, since according to it a multinational enterprise should "respect consumer privacy and provide protection for personal data". The Cime Commentaries on the Guidelines state on this issue that multinational enterprises should regard the 1980 OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, "as a helpful basis for protecting personal data".(Ibid., Paragraph 52). 41 The CITE Commentaries on the Guidelines explain that "although primary responsibility for improving the legal and institutional regulatory framework lies with governments, enterprises also have an interest in good governance." (Ibid., Paragraph 7). And, in order to stress the importance of transparency, they also add that "the adoption of appropriate corporate governance practices is a complementary element in fostering a culture of ethics within the enterprise." (Ibid., Paragraph 47).

4z At the end of the first review in 1979, the OECD Council anyway decided that "if it so wishes, an individual enterprise will be given the opportunity to express its views either verbally or in writing on issues concerning the Guidelines involving its interests." 43 See Seidl-Hohenveldern, 1990. �4 See DAFFE/lME(97)2. 6, 7 and 8; DAFFE/ImE/RD(97)2 and Daffe/Ime(97) 1 which�ontains the Clarification of the CimE (Annex No. 2).

a5 For instance, the Italian National Contact Point has been set up in the office of the Secretary-General for Economic Planning at the Treasury. Among the activities carried out by this National Contact Point, it is worth mentioning its co-operation for the solution, in 1988, of a dispute then existing between two companies of the Italian corporate group Acn'COAL (both companies were incorporated in the United States, specifically in West Virginia and Kentucky) and U.S. trade unions, as well as the publication in Italian of the text of the Guidelines updated by the 1991 Review. 16 It is worth emphasizing that the need to strengthen the role of the National Contact Points-in order to make them "proactive, not reactive"-had already become evident at the time of the 1998 Budapest Conference; see DAFFE/It�tF(98)18, p. 4.

11 The Commentaries on the Guidelines also explain that, in connection with issues raised in countries not adhering to the OECD, the National Contact Points are "in a position to pursue enquiries and engage in other fact finding activities", although "it may not always be practicable to obtain access to all pertinent information, or to bring all the parties involved together"; OECD. 1996a, Paragraph 20. 4H According to the Commentaries on the Guidelines, the Cnne can seek advice from private experts both on "broader issues (e.g. child labour, human rights)" and "individual issues". It is, however, clarified that the CIME "will not become a panel to settle individual issues"; ibid.. Paragraph 28. '" At the end of the first WTO Ministerial Conference, held in Singapore in December 1996, WTO Member countries decided to set up the WTO Working Group on the Relationship between Trade and Investment "to examine the relationship between trade and investment" (Singapore Ministerial Declaration, Paragraph 20). The Working Group also handled the topic of the preparation of standards of conduct for multinational enterprises, by carrying out a comparison between the text of the OECD Guidelines and the text of the UN Draft Code of Conduct for Transnational Corporations (WT/WGT1/W/52 of 21 August 1998). Furthermore, the Working Group was involved in the appraisal of the advantage, if any, ofhaving a global agreement on foreign investments prepared in the framework of the WTO (WT/WTGl/2. Paragraphs 147-160; and WT/WGTI/3, Paragraphs 71-85). In July and August 1999, during the preparatory works of the second WTO Ministerial Conference, some Member countries Japan, Switzerland, Korea, China, Poland and Costa Rica-and the EU proposed in writing that negotiations for the preparation ofa global agreement on foreign investments be launched at the end of the Conference (WT/GC/W/239, 245, 263,267, 268, 277 and 280). The negative result of this Conference, held in Seattle in November 1999, prevented these proposals from being actually discussed. On the other hand, developing countries such as India, Pakistan and some Member countries ofASenH-and the United States, too--firmly opposed such proposals. See generally, Burt, 1997; Sauve, 1997; Brewer and Young, 1998; Smyth, 1998; Escher, 1999; and SFDI, 1999.

50 See especially the recent decision of the UN Secretary-General to create a partnership with multinational enterprises-the so-called "Global Compact"-consisting of nine principles on environmental protection, safeguarding of human rights and of workers' rights. (These principles can be found on the Web site «».) The Global Compact is substantially based on the 1948 UN Universal Declaration on Human Rights, on the 1992 Agenda 21 and on the 1998 ILO Declaration on Fundamental Principles and Rights at Work, since these three instruments-all of them non-binding-"express a clear set of universal values supported by all governments". The Global Compact is not meant to be a code of conduct for multinational enterprises. 51 It is worth mentioning that the Preface to the Draft of the MAi of 12 February 1998 provided that "The Contracting Parties to this Agreement, ... [Recognising that investment, as an engine of economic growth, can play a key role in ensuring that economic growth is sustainable, when accompanied by appropriate environmental policies to ensure it takes place in an environmentally sound manner]; [Recognising that appropriate environmental policies can play a key role in ensuring that economic development, to which investment contributes, is sustainable]; and resolving to [desiring to] implement this agreement [in accordance with international environmental law and] in a manner consistent with sustainable development, as reflected in the Rio Declaration on Environment and Development and Agenda 21 [including the protection and preservation of the environment and principles of the polluter pays and the precautionary approach]...". ". 5= During the 2000 Review, the non-binding nature was repeatedly emphasized by the CiME as one of the characteristics of the Guidelines that was beyond dispute, since any attempt at the preparation of binding rules would have unavoidably modified the balance of the various interests on which the Guidelines are founded and simultaneously reduced the contents of the standards to the least common denominator on account of the reluctance of States to undertake international obligations covering the conduct of their enterprises abroad. On the contrary, the CIME preferred to concentrate the Review on the need to strengthen the procedural follow-up facilities of the Guidelines, particularly in connection with the role of the National Contact Points; see DAFFE/IME(98)14, pp. 3 and 5; DAFFE/IME(98)1S, p. 6; DAFFE/IME(98)18, p. 3; DAFFE/IME(2000)9, p. 3.

53 See Schrijver, 1997, especially at pp. 383-384; Muchlinski, 1995; and C16men�on, 2000, p. 217. 5^ On the issue of the effectiveness of standards of conduct for multinational enterprises prepared in the framework of international organizations, see, in particular, Wallace, 1982; and Sacerdoti, 1987.

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