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FINAL DECLARATION Complainants: • Association Forum Suape

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FINAL DECLARATION Complainants: • Association Forum Suape National Contact Point for the OECD Guidelines for Multinational Enterprises FINAL DECLARATION Complainants: • Association Forum Suape Environmental Space • Conectas Human Rights • Fishermen’s Colony Z8 – Gaibu • Both ENDS Respondents: • Van Oord Marine Ingenuity • Atradius Dutch State Business • Industrial Port Complex Eraldo Gueiros – Suape Enterprise, Pernambuco June 5, 2020 PONTO DE CONTATO NACIONAL 1. EXECUTIVE SUMMARY ...........................................................................................................................4 2. STAKEHOLDERS ......................................................................................................................................6 3. PROCEDURE BACKGROUND ..................................................................................................................6 4. INITIAL ASSESSMENT .............................................................................................................................9 4.1. General description of the situation .............................................................................................9 4.2. Relevant Guidelines .................................................................................................................... 11 4.2.1. Chapter II – General Policies .............................................................................................. 11 4.2.2. Chapter III – Disclosure ....................................................................................................... 12 4.2.3. Chapter IV – Human Rights ................................................................................................ 13 4.2.4. Chapter VI – Environment .................................................................................................. 14 4.3. Compensation ............................................................................................................................ 15 5. COUNTER-CLAIMS .............................................................................................................................. 17 5.1. Context ....................................................................................................................................... 17 5.2. General Notification Shortcomings ............................................................................................ 17 5.3. Specific responses to the alleged violated guidelines ................................................................ 18 5.3.1. Chapter II – General Policies .............................................................................................. 18 5.3.2. Chapter III – Disclosure ....................................................................................................... 20 5.3.3. Chapter IV – Human Rights ................................................................................................ 20 5.3.4. Chapter VI – Environment .................................................................................................. 21 6. RESPONSE TO THE COUNTER-CLAIMS ................................................................................................ 22 7. COMMENTS ON THE PRELIMINARY VERSION .................................................................................... 23 8. REJOINDER OF THE RESPONDENT TO THE COMPLAINANT’S COMMENTS ........................................ 26 9. MEDIATION ......................................................................................................................................... 28 9.1. First Session - NCP ...................................................................................................................... 28 9.2. Second Session – NCP ................................................................................................................. 29 9.3. First Private Mediation Session .................................................................................................. 29 9.4. Second Private Mediation Session ............................................................................................. 30 9.5. Third Private Mediation Session ................................................................................................. 31 10. CONCLUSION .................................................................................................................................. 31 10.1. Limits of the Mandate of the National Contact Point ............................................................ 32 10.2. Admissibility of new documents ............................................................................................ 35 10.3. Probative effectiveness of new documents ........................................................................... 38 2 PONTO DE CONTATO NACIONAL 10.4. Due diligence and power to influence the results ................................................................. 41 10.5. Results of Public Civil Action nº 0005552-13.2011.4.05.8300 ............................................... 42 10.6. Final Remarks ......................................................................................................................... 45 11. RECOMMENDATIONS ..................................................................................................................... 46 ANNEX I - Timetable of the case with the NCP Brazil: ................................................................................ 49 ANNEX II - Information on the Stakeholders .............................................................................................. 50 3 PONTO DE CONTATO NACIONAL 1. EXECUTIVE SUMMARY 1. The Final Statement sets forth the conclusions of the analyses by the National Contact Point of Brazil (NCP) of the OCDE Guidelines for Multinational Enterprises (Guidelines) in relation to the allegations presented on June 8, 2015 by the Association Suape Environmental Space (Suape Forum), Conectas Human Rights, Fishermen’s Colony Z8 – Gaibu and Both ENDS, to the detriment of Van Oord Maritime Operations Services Ltda (Van Oord), Atradius Dutch State Business (Atradius DSB) and Industrial Port Complex Eraldo Gueiros – Suape Enterprise, Pernambuco (Port of Suape). 2. The complaint addresses the conduct of the alleged parties that supposedly violated the OECD Guidelines concerning Chapter II (General Policies), Chapter III (Disclosure), Chapter IV (Human Rights) and Chapter VI (Environment). In general, the complainants add that the dredging works to deepen the port channel and the installation of a new shipyard in 2012 ended up harming traditional fishing communities in view of the environmental degradation and procedures for relocating the inhabitants of the region. 3. Initially, the coordination of the NCP- Brazil was inclined towards the understanding that the allegation had no specific focus, failing to determine the participation of each of those alleged in the damages caused to the community. Another difficulty pointed out in the preliminary admissibility report was the failure to meet the requirement of a multinational company in relation to the Port of Suape, which prevented the action of the NCP-Brazil. Additionally, the coordination considered that the allegation referred to facts that occurred more than twelve months ago, which violated Art. 3rd, I, of NCP Resolution nº 1/2016. Even in the face of these impediments, the case was admitted due to the interest expressed by the Van Oord company in the benefits of the good offices to be rendered by NCP-Brazil. The company’s intention would be to reverse the negative perception of the alleging parties and the communities located in the Suape region. Although it agreed with the continuity of the procedure, the alleged party pointed out that the act did not amount to the recognition that its activity in the port had violated any of the OECD Guidelines. 4. During 2015, two mediation sessions were held by the NCP-Brazil, but without practical results. In view of the difficulty of bringing the affected parties and the Port of Suape to dialogue in Brasilia, it was decided that new sessions would be held in Gaibu, State of Pernambuco. This would be the place where fishermen affected by the changes caused by the operation of the port are concentrated. Between 2017 and 2019, three meetings were held by a private mediator, resulting in some agreements, the execution of which still depends on the collaborative action of the parties. In none of the sessions was it possible for the Port of Suape to sit at the table to discuss the implementation of any action agreed between the parties. 5. In the second half of 2019, it was signalled to the NCP that the right moment for the closing of the case had arrived. Shortly thereafter, the Van Oord company submitted its counter- 4 PONTO DE CONTATO NACIONAL allegations to the complaint filed in June 2015. About two months later, the complainants submitted their reply. 6. After careful consideration of the documents brought by all parties and the participation, as an observer, of a representative of the Executive Secretariat of NCP-Brazil in the third private mediation session held in Gaibu, it is clear there are still conflicts not overcome by the parties. Regarding those disputes the NCP-Brazil has not competence to arbitrate. However, there were some positive results of the negotiation effort based on actions agreed between the parties and which are under development. The recommendations issued in this final declaration are based on the expectation
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