Diretrizes da OCDE para empresas multinacionais

NCP Resolution 01/2007 - English Version

NCP RESOLUTION 01/2007
Regulates the presentation of Claims to the NCP

SECTION - PRESENTING THE CLAIM

ARTICLE I. The National Contact Point (NCP) will receive a claim that pleads the inobservance of the Guidelines for Multinational Enterprises of the Organization of Economic Cooperation and Development (OECD).

ARTICLE II. The claim may be presented by a natural or juridical person, or through a legally constituted representative, under the following conditions:

a) the existence of direct concern, although potential, with the object of the Complaint, and

b) the person concerned is established in national territory, or in the absence of those conditions, that

c) the object of the Complaint be the inobservance of the Guidelines, either by a multinational enterprise established in the national territory or by a multinational enterprise whose capital is mostly Brazilian in another country that does not subscribe to the Guidelines for Multinational Enterprises of the OECD.

ARTICLE III. The NCP will not admit a Claim:

a) which has been known or taken place for over a period of 12 (twelve) months before the day the Claim was presented to the NCP

b) which has already been appreciated in a former Claim, concerning the same fact and in case the new Claim does not add new elements, according to what is established in Article IX.

ARTICLE IV. The Claim must have the following information:

a) identification of the Claimant specifying the names, addresses for correspondence, telephone numbers and fac-simile of the entity entrusted of the contact with the NCP.

b) identification of the multinational enterprise, specifying the name of its representative in Brazil with the addresses for correspondence, telephone numbers and fac-simile;

c) specification of the articles of the Guidelines which have been or are being disregarded by the multinational enterprise;

d) indication on how does the inobservance of the Guidelines affect, although potentially, on the Claimant or on the entities represented by the Claimant;

e) description of the efforts the Claimant previously undertook to solve the alleged inobservance of the Guidelines by the multinational enterprise and the results of these efforts;

f) copy of any document or information that might be useful to understand the facts or circumstances which characterize the alleged inobservance of Guidelines, as well as the efforts referred on the “e” align, and

g) specification of the secrecy and confidential topic, in compliance with the determination of Article XII;

§ 1 – The Claim referred to at the head must be submitted according to the model described on the NCP website address (http://www.fazenda.gov.br/sain/pcnmulti/modelo-denuncias.asp), with an explicit and clear description of the conduct of the alleged inobservance of the Guidelines, an explanation on how the conduct is related with the clauses of the Guidelines and an objectively presented request to NCP.

§ 2 – The Claim referred to at the head of this article must be sent or delivered to the NCP by express mail by the entities mentioned in Article II, to the following address:
Ministério da Fazenda - Ponto de Contato Nacional para as Diretrizes da OCDE - Esplanada dos Ministérios, Bloco P – Sala 219 - 70.048-900 Brasília/DF - Brazil.

ARTICLE V. In addition to the information requested in Article IV, the interested party must inform the NCP about the presentation of the object of the Claim to the courts, as well as to any other national or international administratives organisations, or any international entity; the party must equally present to the NCP all the documents presented to these lawsuits.

§ 1 – The interested party has 30 (thirty) days, counted from the date the Claim was presented, in order to accomplish with the requirements established in the head of this article.

§ 2 – The interested party must inform the NCP about the process of the petitions presented to the organisations mentioned in the head, as well as the position of those related with the lawsuits.

SECTION II – ACCEPTANCE OF THE CLAIM

ARTICLE VI – Having received a Claim, the NCP will attempt a preliminary analysis of admission which will verify if the claim:

a) incorporates elements which keep thematic pertinence with the themes described in the Directions;

b) has a sufficiently delimited focus; and

c) presents verifiable circumstanced facts and evidences under objective criteria;

ARTICLE VII. In case the Claim received does not substantially attend the conditions of the articles of this Resolution and the NCP coordinator considers that the claimant should necessarily present other explanations, the Claimant will be requested to present complementary information, which must be provided within 30 (thirty) days, counted from the date of receipt.

Single paragraph – Assuming that the Claimant does not present the supplementary information on the stipulated date, the NCP may reject the Claim presented and the Claimant will be duly informed about the main reasons for its rejection.

ARTICLE VIII. The decision about the acceptance or rejection of the Claim will be duly informed to the claimant on the maximum term of 90 (ninety) days, counted from the day of the receipt of the Claim or the presentation of the additional information, according to the established in Article VII.

ARTICLE IX. The decision of rejecting a complaint will not hinder a new complaint with new factual elements or with content diverse from the petition previously formulated from being subsequently presented, in order to attend the effective accomplishment of the requirements described in Article VI.

ARTICLE X. Until the effective acceptance of the Claim, the NCP will keep restrict and discerning secrecy and confidentiality about the Claim, so as to not affect unnecessarily the corporate image of the company against which the claim was held.

SECTION III – PROCESSING THE COMPLAINT

ARTICLE XI. Should the complaint be accepted, a printed copy of the process will be sent to the multinational company with a request to answer within 60 (sixty) days, extendable, upon request, by the petition of the company for, on maximum, same period.

ARTICLE XII. All the information related to a Claim, provided to the NCP by the multinationals companies will be considered public, in principle. The NCP may publish the information, unless there is a formal request in contrary on the part of either the Claimant or the Defendant.

§ 1 – The NCP will abstain to provide any kind of information considered secret or confidential according to the Law or having any strategic and privileged nature. The interested party should clearly indicate the information to the NCP, pointing out the reasons of the secrecy and the harm it might bring in case it is revealed. Thus, the information will be kept restricted to the knowledge of the parties and to the NCP, unless the hypothesis foreseen on § 4 applies.

§ 2 – The Claimant and the Defendant may exercise the prerogative on the head of this article when the Complaint is submitted in accordance with Article IV.

§ 3 – The parties, under adequate justification, may at any moment specify the documents and the information object of secrecy and confidentiality, and the NCP must abstain itself of making them public.

§ 4 – The parties, under an adequate justification in a formal requirement, may request the NCP that the information submitted and specified, be for its exclusive knowledge, and that its secrecy and confidentiality must be guaranteed, even in front of the other parties involved in the Claim.

SECTION IV – MEDIATION AND THE FINAL REPORT

ARTICLE XIII. Once the Claim has been accepted, and the other party has presented its allegations, the NCP will, whenever it is appropriate and under the consent of the parties, undertake efforts to mediate the solution of the conflict. Therefore, the NCP will present a negotiation guide with the objectives intended for both sides with the mediation, the name of the authorized negotiators, a document to be signed by both parties, in which the NCP expresses the obligation of secrecy in managing the information received, and finally the closing date for the negotiations.

§ 1 – The process of mediation may be interrupted at any moment if any of the parties and/or the NCP considers it convenient.

§ 2 – Assuming that what is established in the previous paragraph occurs, or in case the NCP concludes that the mediation is either not possible or desirable, a final report must be written, expressing the view of the organisation in respect to the Claim, the attitude of the parties involved relative to the implementation of the Guidelines and the reasons why it was not possible to begin a mediation effort.

§ 3 – The term specified in the head for the conclusion of the mediation process may be extended if the NCP judges convenient.

ARTICLE XIV. Once the mediation period has ended, the NCP will write a final report with the achieved results, which will be delivered to the parties and published on the institutional home page (http://www.fazenda.gov.br/sain/pcnmulti/novo.asp).

§ 1 – The NCP’s final report will be public, with the exception of the information formally considered as secret and confidential, in accordance with Article XI.

ARTICLE XV. Every Claim received and accepted will have a NCP’s final report. This report will be duly sent to the parties, to the OECD and the to the NCPs of the countries headquarters of the multinationals enterprises which took part in the process.

ARTICLE XVI. The NCP’s final report relative to a Claim which has been received and accepted will be previously submitted to the parties. The parties will have 15 (fifteen) days, counted by the receipt of the notification, to present their position on its content and suggest any pertinent modifications. Any suggestion must be duly justified.

NCP RESOLUTION 01/2007 - Portuguese Version.