The OECD Guidelines for Multinational Enterprises (OECD Guidelines) are one of the few measures that were successfully realised on the international plane in the decades-long pursuit of corporate accountability. For 20 years, the OECD Guidelines and their non-judicial grievance mechanism, the National Contact Point (NCP), have been continuously resorted to by victims and advocates in holding businesses to account for various abuses and misbehaviours. Interestingly, NCP cases (specific instances) have only steadily increased through the years despite the challenges, limitations and criticisms that the mechanism has been confronted with. And more states continue to adhere to the Guidelines, OECD members and non-members alike, and bind themselves to the obligation of establishing an NCP within their territory. Such mechanism accordingly remains relevant, valuable and indispensable. This article seeks to revisit and examine the OECD Guidelines and the NCPs in light of the two United Nations (UN) pathways initiated by the UN Human Rights Council: the UN Guiding Principles on Business and Human Rights (UNGP) and the elaboration of a potential treaty on business and human rights (BHR). It will identify and evaluate three important features that make the mechanism unique vis-à-vis other BHR mechanisms. The article will focus its analysis and discussion on how these features are able to or can meaningfully contribute to the UN pathways, as well as how they could be harnessed to improve existing propositions and drafts leading to the desired legally binding instrument. It will also identify some of the mechanism’s shortcomings, and understand some of the points made in this regard. Finally, it will conclude with recommendations on how the mechanism could be improved and how these features could assist in shaping the future of corporate accountability.
The work addresses the paradigm shift of Codes of Conduct from non-binding standards to becoming the justification and basis for coercitive rules for the market and business currently in place. By reviewing different examples (such as the case of integrated corporate social responsibility reports, which have become a reporting obligation for non-financial information with high sanctions in cases of non-compliance with the most recent national and EU regulations) we proceed to understand the variation in the role of Codes of Conduct as a source of obligations involving corporate social responsibility.
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