NCP parallel proceedings

A “parallel proceeding” is a formal procedure at another court, tribunal, or complaint mechanism that deals with the same issue and occurs at the same time as the National Contact Point (NCP) process. This includes proceedings at the national or international level and complaints to other NCPs. 

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The existence of a parallel proceeding does not prevent an NCP from also proceeding with the complaint, but it does generate some additional considerations.

Why file an NCP case despite a parallel proceeding

There are several reasons why complainants might want to file an NCP complaint even though another court or tribunal is considering a related case:

• The other proceedings are “stuck” – i.e. indefinitely delayed or unreliable due to court corruption or incompetence, or the company is delaying court processes – and therefore not a viable means of resolving the dispute.
• The issues covered in the OECD Guidelines are broader or different and permit consideration of issues the court or tribunal cannot deal with.
• The opportunity to engage in constructive dialogue supported by the NCP alongside a more combative parallel process may enable more creative and mutually beneficial solutions. 
• The NCP complaint may enable remedy outcomes (such as an apology or improved practice moving forward) that are not possible via a court or tribunal and that are also desired by the community. 

What the Guidelines say on parallel proceedings

The Procedures for NCPs in the OECD Guidelines’ state that NCPs should not reject a case in its initial assessment simply because parallel proceedings are underway. Instead, if there are parallel proceedings, NCPs should consider whether mediation could help to solve the issues raised in the complaint or improve the company’s future implementation of the Guidelines, and also whether mediation would create “serious prejudice” or a “contempt of court situation” for the parties. NCPs should also consider partially accepting a complaint – i.e. offering mediation only for some of the issues raised in the complaint or suspending its examination while the parallel proceedings are ongoing. The NCP may also consult with the court or tribunal where the other proceedings are being or could be conducted. In all cases, NCPs must seek both parties’ assistance, including by requesting further information and their views on parallel proceedings. 

Important considerations on parallel proceedings

Although the Procedures in the OECD Guidelines state that NCPs should not automatically dismiss a case when they learn of a parallel proceeding, many NCPs have done so. To try to avoid rejection, OECD Watch encourages complainants in their complaint to:

• Identify the parallel proceeding(s) and explain how the cases are different and distinguishable, for example, because they are filed by different complainants or raise different issues or legal standards (the Guidelines versus a national or international law). 
• Remind the NCP of the Procedure’s rule on parallel proceedings and emphasise enabling acceptance of claims despite parallel proceedings.
• Explain how the NCP’s consideration of the complaint would not create serious prejudice or a contempt of court situation for a party in the other proceeding. 
• Explain to the NCP how its consideration of the complaint could help solve the issues raised in the complaint or improve the company’s implementation of the Guidelines in future. 
• If applicable, explain to the NCP how its assistance could help facilitate an out-of-court solution supporting the other proceeding. 
• If expected to be helpful, encourage and facilitate the NCP to consult the parallel complaint mechanism for its views on continuing the complaint.