On 8 June 2023, the OECD updated the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (‘OECD Guidelines’), replacing the previous 2011 version. As the standards in the OECD Guidelines are not retroactive, they cannot be applied to business activities that occurred before they were updated. This means that different versions of the Guidelines are now applicable in different situations.
There are now three situations when the 2011/2023 versions of the Guidelines will apply to an NCP complaint.
Quick jump:
Which version of OECD Guidelines (2011 or 2023) to use for which complaints?
Harms occurring only before June 2023
Harms that began before June 2023 but are still ongoing
Harms occurring only after June 2023
Which version of OECD Guidelines (2011 or 2023) to use for which complaints?
| When did the harm occur? | Under which version of the Guidelines is the complaint filed? | Under which version are the alleged breaches? | Which version of the Guidelines and the NCP’s complaint-handling procedures does the NCP use? | |
| 1. | Harms occurring only before 8 June 2023 | 2011 and/or 2023 Guidelines | 2011 Guidelines | -> 2011 Guidelines – to decide on admissibility of claims and potentially make determinations regarding conduct before 8 June 2023+2011 Guidelines and old complaint handling procedures – to make recommendations regarding future conduct
-> 2023 Guidelines and updated complaint handling procedures – to make recommendations regarding future conduct |
| 2. | Harms that began before 8 June 2023 but are still ongoing | Both 2011 and 2023 Guidelines | 2011 Guidelines – for harms that occurred before 8 June 2023, to address failure to meet standards at that time+2023 Guidelines – for harms that continued after 8 June 2023, to address ongoing failure to correct the harm, now under new (higher) standards | -> 2011 Guidelines and old complaint-handling procedures – to decide on admissibility of claims originating before 8 June 2023 and make determinations regarding conduct before 8 June 2023, and
-> 2023 Guidelines and updated complaint-handling procedures – to make determinations and recommendations regarding conduct after 8 June 2023 |
| 3. | Harms occurring only after 8 June 2023 | 2023 Guidelines | 2023 Guidelines | 2023 Guidelines and updated complaint-handling procedures |
| NCP complaint handling procedures
Each NCP has its own procedures for handling complaints. While these procedures are based on the expectations for complaint handling described in the Procedures for NCPs in the OECD Guidelines, the procedures differ by NCP. In 2024, NCPs are expected to revise their old (pre-update) procedures (made under the 2011 Guidelines) where necessary to align with the new expectations in the 2023 Guidelines. Because individual NCPs have their own specific complaint-handling procedures, we strongly recommend that civil society complainants review the complaint-handling procedures and any templates for filing complaints by the NCP(s) to which you are filing, and also contact those NCP(s) to discuss any specific requirements for filing complaints or questions related to your case. |
Harms occurring only before June 2023
For harms occurring only before June 2023 (i.e. the harm stopped before June 2023 and is not ongoing), civil society should allege breaches of the 2011 Guidelines. The NCP will use the 2011 Guidelines to assess the admissibility of the complaint and potentially determine whether the company met the responsibilities applicable to it at that time. If the NCP makes recommendations for good practice moving forward, it will use either its existing (pre-update) complaint handling procedures or its procedures updated in accordance with the 2023 Guidelines. It is up to the NCP to decide whether these cases will continue under its old or updated complaint handling procedures.
Harms that began before June 2023 but are still ongoing
For harms that began before June 2023 but have continued since then (ongoing harms), civil society should allege breaches of the 2011 Guidelines for activities that originated before June 2023. Additionally, breaches of the 2023 Guidelines should be alleged for the company’s ongoing failure to improve irresponsible conduct or resolve harms that initially began before June 2023, but have continued past that date. If ongoing, civil society should also argue breaches of the 2023 Guidelines for failures to align with new standards.
| Example
In 2018, an oil and gas company began extracting oil without an adequate environmental impact assessment and adequate stakeholder consultation. In 2019, the company’s operations caused an oil spill. In January 2024, the company has still not adequately cleaned up the spill. The company also has no policy to align itself with the Paris Agreement’s temperature goals. Alleged breaches:
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For harms occurring only before June 2023, the NCP will use the 2011 Guidelines and its pre-update complaint-handling procedures to determine the admissibility of each claim and potentially determine whether the company met the responsibilities applicable to it at that time. If the NCP makes recommendations for good practice moving forward, it will use its updated complaint-handling procedures.
For harms continuing after June 2023, the NCP will use its updated complaint-handling procedures to potentially determine whether the company is meeting the (higher) responsibilities now applicable to it after 8 June 2023. If the NCP makes recommendations for good practice moving forward, it will use its updated complaint-handling procedures.
Harms occurring only after June 2023
For harms occurring only after June 2023 (i.e. the investment, activity, or harm only began after June 2023), civil society should allege breaches of the 2023 Guidelines. The NCP will use its updated complaint handling procedures for all stages in the complaint process, including assessing the admissibility of the claims, determining whether the company met its responsibilities, recommending good practice moving forward, and following up on the complaint.
This information draws on OECD Watch’s interpretation of both the 2011 and 2023 versions of the Guidelines and has been developed in consultation with the OECD secretariat.
