Whilst the 2011 update brought significant improvements to the Guidelines, some concerns remain, in particular regarding the effectiveness of the NCPs.


  • The inclusion of a new chapter (iV) on Human Rights;
  • The integration of the concept of due diligence in particular with regard to Human Rights;
  • An extended scope of application to all sectors, and including business relationships (in particular the supply chain as well as institutional shareholders 1 );
  • The broad nature of the principles and the extraterritorial scope of the Guidelines (where the parent company is based in an adhering state) make them a potentially powerful instrument, particularly regarding companies’ activities, including in weak governance zones. 2 The Guidelines are increasingly becoming more visible and widespread, and recognised by States, 3 NCPs and companies. 4 The Guidelines are increasingly utilised as a benchmark and constitute one of the principal measures by which companies’ responsibilities are assessed;
  • A recognised mediation role : due to their visibility and flexibility, the Guidelines are shaping consensus, to the extent that they can be considered a tool of social dialogue.

Other possible advantages depending on the NCP or situation:

  • Possibility that NCPs will conduct fact-finding;
  • Possibility that NCPs will issue strong final statements with a determination of a breach of the Guidelines;
  • Possibility that NCPs will urge other government ministries to apply consequences (penalties) to MNEs that do not engage in good faith in the process or fail to implement recommendations given.
  • Possibility the NCP will encourage the company to provide a meaningful remedy to complainants.
  • Possibility of NCP monitoring;
  • Opportunity to generate public and political attention;
  • Less costly than court cases.
  • Opportunity to enable mediated dialogue alongside an adversarial court case.
  • Recent NCP cases demonstrate a willingness to tackle new issues such as climate change, the responsibility of digital platforms for the impacts of the companies using them.
  • The recent cases also demonstrate the expanding scope of actors: both complainants and defendants. For example, a case was filed by the Quechua Indigenous group representing the interests of more than seven million people. Likewise, for the first time in 2018, a complaint was filed against a multi-stakeholder initiative, the Roundtable for Responsible Palm Oil.


Whilst the 2011 update brought significant improvements to the Guidelines, some concerns remain, in particular regarding the effectiveness of the NCPs.

In 2019 more than 36% of all NGO or community complaints were rejected outright with no offer of good services. This rejection rate significantly surpassed the already high historical averages. The year before, only 11 out of the 34 National Contact Point (NCP) cases concluded in 2018, “even made it to the stage of mediation in the first place, with the rest being rejected outright by NCPs.” 5 Hence, major barriers to access remedy persist 6 .

The most frequent criticisms of the Guidelines refer to the NCPs:

  • The assessment of admissibility is too restrictive in determining whether a complaint should be accepted. Certain NCP’s demand an unreasonably high burden of proof compared to the required plausibility requirement emitted in the Guidelines. Secondly, numerous NCPs have been reluctant to proceed with a case involving past or complicated facts.
  • The incorrect refusal for certain NCPs to apply the Guidelines to companies investing either before or after harms occurred.
  • At times NCPs make contradictory interpretations of the concepts embodied in the Guidelines;
  • The lack of coordinated rules of procedure across NCPs.
  • There is lack of interaction amongst the different NCPs and between the NCPs and the other parties, especially the NGOs, as to the progress of the procedures;
  • The specific instances procedures are being conducted in a confidential manner;
  • The delay in examining complaints is still too long.
  • The proximity of the NCPs to the business community and the unequal treatment given to NGOs and unions within the structure and advising of NCPs;
  • NCPs’ unwillingness to assume a monitoring role once a case is concluded.
  • The NCPs’ lack of an investigative will and/or capacity. As a result, complainants often carry the burden of providing evidence to support the claims made against the business (running the risk that the complaint be dismissed where the information provided proves insufficient). It should be noted that some NCPs do undertake their own fact-finding missions as part of their examination of the case. Both the Dutch and the Norwegian NCPs have done this.See, for example, CEDHA et al. vs Nidera (Dutch NCP), http://OECDwatch.org/cases/Case_220/, and Future in Our Hands vs Intex Resources (Norwegian NCP), http://OECDwatch.org/cases/Case_164/ However, most NCPs refuse to do any investigation beyond the documentation provided directly to them by the parties and – should this documentation be inconclusive – simply say, “There’s no more we can do” and close the case without resolution.
  • For defenders and affiliates, filing an NCP case “may deepen risk of reprisal by raising company and host-government awareness of defenders’ identities and activities” 7 Meanwhile, very few NCPs have developed internal protocols or public zero tolerance statements condemning reprisals against complainants in specific instances.
  • The NCPs’ lack of financial resources and permanent staff is a recurrent problem for most NCPs that seriously hampers their effectiveness
  • The structure and location of NCPs within economic or trade promotion ministries, which can yield actual conflict of interest or perception of bias/partiality towards business by stakeholders (see box below)

Governments have a discrepancy in establishing the structure of the NCPs. As such, many government agencies can carry out the NCP mandate. In the case of Open Secrets & CALS vs KBC Group (detailed later in the chapter), Open Secrets and CALS alerted Belgian and Luxembourg authorities that senior executive officials from KBC banking group had influential positions within the Federation of Enterprises- a key organisation in the tripartite NCP. Nevertheless, the Belgian NCP refused the recusal of the conflicted individuals and ultimately rejected the case 8 . Likewise, in the case of Quechua Indigenous People vs Marriott International the complainants alleged that Peruvian National Contract point was not impartial 9 . The complainants opposed the construction of a Hotel on an Inca archaeological site. The exploration began under an investment promotion agreement signed between Proinversion and the developer in 2014. Yet Proversion, the pro-investment agency, also fulfils the role of NCP in Peru. In conclusion in these cases the very structure of the NCP appears to hinder access to remedy for victims. UN independent expert Bohoslovsky claimed in April 2020, that “OECD member states should consider establishing a mechanism to prevent conflict of interests of their NCP’s corporate review process to strengthen the procedure and its credibility” 10 .

Finally, the main limitation for the NCPs resides in the fact that, even where the company is found to have violated the guidelines, there exists no enforcement mechanism established by the States to ensure that the NCPs’ recommendations are implemented. For example, “a company that refuses to engage with NCP or blatantly violates the OECD Guidelines is still able to receive credit insurance, go on trade missions or trade promotion activities” 11 . The lack of sanctions or “consequences” remains the main weakness of this mechanism and brings into question its effectiveness. However as is illustrated above, some governments and NCPs are starting to link the violations of the guidelines to sanctions. NCPs are encouraged to inform other government agencies of their statements and reports when they are known by the NCP to be relevant to a specific agency’s policies and programmes which may lead to consequences for the company found to have violated the Guidelines 12 .