Fireside Chat with the UK National Contact Point

Introduction

On 5 February 2025, attendees at the Business & Human Rights Lawyers (“BHRLA”) conference in London were treated to a fireside chat with Sam McCahon, who holds joint leadership at the UK National Contact Point (the “UK NCP”), and Antony Crockett, a partner at Herbert Smith Freehills and BHRLA Board Member.  

Background on the NCPs

Countries adhering to the Organisation for Economic Co-Operation and Development (“OECD”) Guidelines, voluntary principles for responsible business conduct in areas including employment, human rights and the environment, are required to maintain an NCP to provide a forum for resolving disputes involving multi-national enterprises through assisted mediation. In addition to working to resolve issues involving relevant allegations, NCPs are encouraged to actively build awareness of the guidelines and related voluntary mediation process.  

Key Reflections

Attendees at the fireside chat had the opportunity to participate a detailed discussion of the stages in the NCP process, as well as various reflections based on experience with the UK’s NCP. Key points and reflections included:

• In the wake of the updated OECD guidelines in 2023, NCPs have seen a sharp increase in global referrals. As one of the most active NCPs, receiving around a third of the global volume of complaints in 2023 (to put this into context, some foreign NCPs had not received a single complaint in 5 years), the UK’s NCP has taken steps to manage the volume of initial complaints. These have included, for example, expanding the team, thoughtful internal division of labour, and giving particular attention to progressing cases on an expedited basis wherever possible from the earliest stages.  On a strategic level, the UK NCP aims to avoid being drawn in to overly litigious communications on minor points, and where appropriate, prefers a more strategic and focussed approach to document disclosure.  The UK NCP seeks to have a resolution to the dispute within twelve months from the date the Complaint is submitted.

• The position of each NCP varies depending on its local government and context. The UK NCP sits within the Department for Business and Trade, and operates independently of Ministers, who do not have a role in its decisions on complaints.  

• The NCP follows published procedures in relation to complaints, including an initial assessment phase, an offer of free mediation where complaints are accepted (with parties bearing their own legal costs. Where mediation is refused or fails, a further examination is conducted into the allegations and a final statement is published on the UK government website. In practice, the UK NCP seeks to maintain consistency and alignment with its own decisions, and where appropriate, the approaches taken by other NCPs.  

• Currently, a high proportion of referrals to NCPs globally involve either banking and finance or mining and extractive sectors. Complaints often involve issues related to human rights due diligence, employment and forced labour, although occasionally they may also involve concerns about the environment.  

• Globally, around 2/3rds of complaints to NCPs are accepted – however this proportion is much higher where the complaint has been brought by or in collaboration with an NGO or trade union. Complaints are also more likely to be accepted into the process where complaints have been mapped against specific chapters and paragraphs in the OECD Guidelines.  

• As a general rule, cases will be heard in the jurisdiction where the harm or conduct leading to harm occurred, however at times determination matters of NCP jurisdiction can raise complex issues. Where appropriate, two NCPs may work together (with one assigned the primary role) to manage one complaint.

• The UK NCP has to balance its obligations to the parties involving confidentiality and transparency. Where a multi-national enterprise is concerned about protecting proprietary material, the UK NCP is open to taking  certain protective steps, however in practice this is not always possible and there is a risk that the information provided to the NCP could result in the  material becoming accessible in parallel or future proceedings.  If a party believes information provided to the NCP falls within one of the exceptions to the Freedom of Information law, those paragraphs should be marked accordingly.  If the UK NCP concurs, those details will not be provided to the other party, but will be considered by the NCP in the Initial Assessment phase. It is not uncommon for NCP complaints to be made in parallel to related domestic litigation. In some cases it may be appropriate for the NCP proceedings to be suspended until other proceedings are resolved but this will always be assessed on a case-by-case basis. Applications for suspension of the NCP proceeding can only be made if the specific instance has been accepted by the NCP and the parallel court or tribunal proceedings involve the same issues as the Complaint...Although privilege assessments will turn on specific facts, internal searches conducted by a multi-national enterprise to assist with the NCP process have been found in the past to fall outside of litigation privilege.

• In 89% of the time, when the parties engage, the UK NCP’s mediation process ends in success with an agreement regarding how to move forward. In such cases, it is entirely up to the parties to agree on what will be published by the NCP. The risk of mediation failure is highest following the initial assessment stage, when many parties struggle to agree on the terms of reference required to embark on the mediation process. This can be exacerbated by overtly adversarial legal advice (an approach which is rarely conducive to mediation). If the process fails or if the parties choose not to participate, they will not have control over the contents of the NCP’s final report. If in the final report, the NCP concludes the Guidelines have not been complied with, the NCP will send a copy of the final report to the UK Export Finance Department (UKEF) for inclusion in their database for due diligence inquiries for applicants seeking UKEF assistance.

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