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C. Ardenia breached the OECD Decision on MNE Guidelines

The failure of the Ardenian NCP to respond to the complaint by the Rigalian CRBC constitutes the breach of the OECD Decision on MNE Guidelines. Ardenia’s NCP refused to examine the complaint against MDI and RRI filled by the Committee for Responsible Business Conduct (CRBC), a Rigalian non-governmental organization, on July 1, 2009. This complaint concerned the violation of chapter VI of the MNE Guidelines to the NCP by those enterprises.[78] The NCP, established by Ardenia in accordance with the Decision of the OECD Council on the OECD Guidelines for MNE[79] "[h]ave an important role in enhancing the profile and effectiveness of the Guidelines"[80] and NCP is "[e]xpected to respond to legitimate enquiries requested by other NCPs, non-governmental organisations, the public and governments."[81] The Respondent considers that this refusal was unfair and did not satisfy the international obligations according the OECD Decision on MNE Guidelines.

In particular Ardenian NCP stated that "[t]he complaint should be dealt with by the NCP of Rigalia where the alleged misconduct occurred."[82] In this connection it is necessary to consider that MDI - an Ardenian corporation - was a party in alleged offence and this circumstance complicates the investigation of bribery by Rigalia. Therefore the complaint was filled in order to get a support from Ardenia.

The Applicant’s NCP also claimed that the MNE Guidelines do not apply to RRI[83]. But the OECD Guidelines for Multinational Enterprises directly states that:

The Guidelines are not aimed at introducing differences of treatment between multinational and domestic enterprises; they reflect good practice for all. Accordingly, multinational and domestic enterprises are subject to the same expectations in respect of their conduct wherever the Guidelines are relevant to both.[84]

Therefore the Respondent considers that the adhering Guidelines are relevant not only for MNE, operating in Regalia’s territory, but also for domestic enterprises so the Applicant could not explain its refusal referring to this cause.

Likewise, as explained by the Ardenian NCP “[i]t could not deal with the complaint since investigations had been launched in Ardenia and Rigalia concerning these allegations.”[85] However on June 3, 2009, the Public Prosecutor of Ardenia, Sam Strong, dropped the investigation. Consequently later, on July 1, 2009 the CRBC filed a complaint against MDI and RRI for violation of chapter VI of the MNE Guidelines to the National Contact Point[86] in order to do all in Rigalia's power to investigate the case of bribery in observance of the international provisions. Thus this reason represented by the Applicant is quite groundless. Therefore the Respondent insists that the inquiry should have been responded.

Moreover after Ardenia’s NCP represented abovementioned grounds the CRBC requested that it organize a meeting with all the parties involved to discuss ways to resolve these issues, including the possibility for the NCP to cooperate with Rigalia’s NCP in addressing the complaint. Ardenia’s NCP never answered this request.[87] This omission of Ardenian NCP is unacceptable in such situation. Concerning the OECD Decision on MNE Guidelines, NCPs deal with issues arise relating to implementation of the Guidelines in specific instances and are expected to help resolve them[88]; they shall respond to enquiries about the Guidelines from”[89] in particular non-governmental organizations.[90] NCPs will act as a forum for discussion of all matters relating to the Guidelines"[91] and where the issues raised merit further consideration, the NCPs would discuss the issue further with parties involved and offer “good offices” in an effort to contribute informally to the resolution of issues.[92] For this purpose, they will consult with these parties and exercise other practices described in the Decision on the OECD Guidelines for Multinational Enterprises.[93] But after all the requests made by Rigalia's side the Applicant's NCP did not perform any of those options and did not give a satisfactory explanation. Therefore the Applicant violated of the OECD Decision on MNE Guidelines.





Date: 2015-12-17; view: 722


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Rigalian authorities suspect MDI of bribing members of the provincial tribal councils in the Northern Provinces of Rigalia | Agents of the Respondent
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