OECD Guidelines for Multinational Enterprises: a Glass Half Full
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A Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct 2013-2018 OECD Guidelines for Multinational Enterprises: a Glass Half Full OECD Guidelines for Multinational Enterprises: a Glass Half Full A Liber Amicorum for Dr. Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct 2013-2018 Please cite this publication as: OECD (2018), OECD Guidelines for Multinational Enterprises: a Glass Half Full, https://mneguidelines.oecd.org/OECD-Guidelines-for-MNEs-A-Glass-Half-Full.htm Design: Peggy King Cointepas This work is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of OECD member countries. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. n 2 OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL FOREWORD This book is a gift to Roel Nieuwenkamp to pay tribute to his work on the OECD Guidelines for Multinational Enterprises. He has spent many years pro- moting responsible business conduct with governments, companies, non-gov- ernmental organisations and trade unions. Initially in his capacity as Director of Trade Policies at the Ministry of Economic Affairs in the Netherlands and, since 2013, as the Chair of the OECD Working Party on Responsible Business Conduct. Five years later, as he steps down from his role as Chair, this Liber Amicorum compiles testimonies from academics close to him engaged in efforts to promote responsible business conduct. Submissions from contributing authors address a number of themes: progres- sive expansion of the scope and increasing scale of norms and practices of responsible business conduct (John Ruggie), focus on stakeholder-based gov- ernance (Mervyn King), strengthening NCP roles and functional equivalence (Christine Kaufmann, Michael Addo, Larry Catá Backer, Maartje van Putten, Martijn Scheltema/Constance Kwant, Sander van ‘t Foort/Tineke Lambooy), stakeholder involvement (Ola Mestad), strengthening Pillar 3: ‘Access to Remedy’ (Joseph Wilde-Ramsing). Further perspectives offered are country- specific views on the United States (Lance Compa), China (Liang Xiaohui), India (Bimal Arora), the desired linkage with the United Nations Sustainable Development Goals (Teresa Fogelberg/Tim Mohin, Karin Buhmann, Rob van Tulder) and the academic grounding through the OECD Academic Network on Responsible Business Conduct (Raymond Saner). Herman Mulder and Martijn Scheltema wrote the Synthesis and further perspec- tives. All contributions solely represent the views of the respective authors. OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL 3 n n ACKNOWLEDGEMENTS ACKNOWLEDGEMENTS This Liber Amicorum has been coordinated by Herman Mulder, Martijn Scheltema, Sander van ‘t Foort and Constance Kwant, who also undertook the final editing. They would like to express their great appreciation for the support received from all contributing authors, the OECD, the Dutch Government and Nyenrode Business Universiteit. The publication of this Liber Amicorum has been made possible thanks to the financial support from the Dutch delegation to the OECD and Nyenrode Business Universiteit. Marjoleine Hennis, Dutch delegation to the OECD, Froukje Boele, OECD, and Pamela Duffin, OECD, provided substantive inputs, editorial assistance and production support. n 4 OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL TABLE OF CONTENTS n TABLE OF CONTENTS Preface by Angel Gurría Secretary-General, OECD 8 Preface by Marten van den Berg Director-General Foreign Economic 10 Relations, Ministry of Foreign Affairs, The Netherlands Synthesis and further perspectives Herman Mulder 13 Fellow Nyenrode Business Universiteit; Member of the Dutch National Contact Point (2007-2016) and Martijn Scheltema Professor of Law, Erasmus University Rotterdam; Partner Pels Rijcken, Law Firm, The Netherlands The evolving regulatory ecosystem John G. Ruggie 19 for business and human rights Berthold Beitz Professor in Human Rights and International Affairs; Harvard Kennedy School of Government Quo Vadis OECD MNE Guidelines Professor Mervyn King SC 25 OECD MNE Guidelines quo vadis? Christine Kaufmann 29 Making responsible business conduct work Professor, Faculty of Law and Centre for for better lives Human Rights Studies, University of Zurich, Switzerland; Co-Chair of the Advisory Board for the Swiss NCP An external view of the OECD Working Michael K. Addo 37 Party on Responsible Business Conduct Professor of Law, University of Notre Dame; and its Chair Member of the United Nations Working Group on Business and Human Rights The arc of triumph and transformation Larry Catá Backer 43 of the OECD Guidelines: W. Richard and Mary Eshelman Faculty Quo Vadis Triumph Scholar Professor of Law and International Into A Era of Transformation! Affairs, Pennsylvania State University Triumphi quo vadis? Temporibus transmutatio parere OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL 5 n n TABLE OF CONTENTS The NCP work: Dancing on a cord Dr. Maartje van Putten 51 Chair National Contact Point The Netherlands Alternative approaches to strengthen Martijn Scheltema 55 the NCP function Professor of Law, Erasmus University Rotterdam; Partner Pels Rijcken, Law Firm, The Netherlands and Constance Kwant Independent International Lawyer; LL.M RUN, The Netherlands; LL.M HKU, China Effective or not? Sander van ‘t Foort BBA LLM (Hons) 67 The crucial role of effectiveness in PhD Candidate, Nyenrode Business specific instances Universiteit, The Netherlands and Professor Dr. Tineke Lambooy LLM Professor Corporate Law, Nyenrode Business Universiteit, The Netherlands The voice of affected persons Ola Mestad 77 in the OECD Guidelines and Professor dr. juris, University of Oslo; Guidance Documents Chair of Norway’s National Contact Point The road to remedy under Dr. Joseph M. Wilde-Ramsing 83 the OECD Guidelines Quo Vadis, USA? Lance Compa 89 The United States and the OECD Cornell University Guidelines since the 2011 Review China, the OECD and responsible Dr. Liang Xiaohui 99 business conduct: 10 years on China National Textile and Apparel Council A piece dedicated to Roel Nieuwenkamp, one of the “RBC Brothers” India and the OECD Working Party Dr. Bimal Arora 105 for Responsible Business Faculty Member, Aston Business School, UK; Conduct: finding synergies Chairperson, Centre for Responsible Business Conduct (CRB), India n 6 OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL TABLE OF CONTENTS n Responsible business conduct Teresa Fogelberg 119 at a turning point: from compliance Deputy Chief Executive, Global Reporting to a positive contribution Initiative and Tim Mohin Chief Executive, Global Reporting Initiative Future perspectives: doing good but Karin Buhmann 127 avoiding SDG-washing Professor (Business and Human Rights), Creating relevant societal value Copenhagen Business School without causing harm Bottoms up? Rob van Tulder 135 OECD Guidelines and the race Professor of International Business, to the bottom or to the top RSM Erasmus University Rotterdam The academic network of the Raymond Saner 143 OECD Guidelines for Multinational Centre for Socio-Eco-Nomic Development Enterprises (CSEND), Geneva OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: A GLASS HALF FULL 7 n n PREFACE BY ANGEL GURRÍA PREFACE BY ANGEL GURRÍA oday the OECD Guidelines for Multinational Enterprises (OECD Guidelines) are the leading instrument on responsible business conduct worldwide. This is evidenced by the growing commitment by business, governments, and also investors, consumers and society at large to Tthe values underpinning the OECD Guidelines— fundamentally, that business should do good while doing no harm. In addition to growing awareness and uptake of the recommendations of the OECD Guidelines, the functioning of the National Contact Points (NCPs), the implementation mechanism of the OECD Guidelines, has also been strengthened. NCPs are increasingly making headlines for helping address issues related to the observance of the OECD Guidelines. Roel has played a crucial role in these developments. His strategic and tireless leadership has raised the visibility and prominence of the OECD Guidelines, and responsible business conduct more generally and globally. Roel’s connection with the OECD started in 2006, first as a delegate and later as a Bureau member of the Investment Committee. In this capacity, he contributed to preparing the ground for the most recent review of the OECD Guidelines and subsequently chaired the working group responsible for the review process. This two-year effort resulted in the adoption of the 2011 version of the OECD Guidelines, currently in force today. The review was ground-breaking for many reasons, but three elements in particular stand out: the addition of a chapter on human rights, the enhanced expectation of due diligence across the value chain and reinforced procedures for NCPs. To better respond to the heightened expectations resulting from the 2011 update, the Investment Committee created a new subsidiary body, the Working Party on Responsible Business Conduct. Roel was designated as the first Chair of the Working Party at its inaugural meeting in March 2013. However, Roel’s involvement, dedication and engagement to the responsible business