Week of 3 February 2020
Quasi-judicial mechanisms (OECD National Contact Points) are used to shine a spotlight on banks’ financing activities: ANZ and Australian bushfires, Credit Suisse and pipeline impacts on indigenous peoples in the United States, ING Group and palm oil
As a recap, National Contact Points (NCPs) are government-supported offices whose core duty is to advance the effectiveness of the OECD Guidelines for Multinational Enterprises (the Guidelines). These Guidelines provide for a specific responsibility on companies to seek to respect human rights, including in their extended value chain. This means that plaintiffs can resort to NCPs to hold companies to account for their activities impacting upon human rights and the environment taking place in far-flung places. There are currently 48 NCPs. I discuss these quasi-judicial instances with Practical Law here.
On 30 January 2020, Friends of the Earth Australia and individuals affected by the bushfires in Australia filed an instance against the Australia New Zealand Bank (ANZ) at the Australian NCP. The complaint states that ANZ does not adhere to the Paris Agreement in its lending activities and should disclose its full lending emissions. (This follows an OECD NCP instance filed against ING in the Netherlands which resulted in ING making a number of new carbon-related commitments).
On 30 January 2020, Women’s Earth & Climate Action Network, International (WECAN) and indigenous women filed an instance against Credit Suisse at the U.S. NCP for contributing to adverse impacts to indigenous peoples and the environment through their financing of firms that built the Dakota Access Pipeline and Bayou Bridge Pipeline. (This follows an OECD NCP instance filed against Credit Suisse by the Society for Threatened Peoples (STP) at the Swiss NCP regarding the bank’s financing of the Dakota Access Pipeline. That case related to the bank’s project financing and resulted in Credit Suisse committing to incorporate the concept of Free Prior Informed Consent – FPIC – into its internal guidelines on project financing. This new case relates to the bank’s corporate lending, not project financing).
On 20 January 2020, the Dutch NCP accepted an instance filed against ING Group related to environmental, human rights, and labour rights impacts of palm oil allegedly caused by subsidiaries of ING’s clients Noble Group, Bolloré Group/Socfin Group, and Wilmar International. The Dutch NCP will now proceed to seek to “bring parties to agreement on possible improvements of ING’s due diligence policies and practices regarding palm oil, and to assess the enterprise’s involvement with the actual or potential adverse impacts identified, in order to determine the appropriate responses and specifically, assess whether the enterprise contributed (or would contribute) to the adverse impact; or whether the adverse impact is (or would be) directly linked to its services by the business relationships.” This determination matters, since how the bank is viewed as connected to the impact determines what it should be doing about it, with complainants alleging that the bank has contributed to the impacts due to the high degree of foreseeability of the harmful impacts and ING’s failure to mitigate or decrease the risk of impacts over time.