Value Chain Due Diligence and the Identification and Assessment of Adverse Environmental Impacts in the Practice of National Contact Points of the OECD

João Teixeira de Freitas

doi:10.1017/S2047102526100302

Value Chain Due Diligence and the Identification and Assessment of Adverse Environmental Impacts in the Practice of National Contact Points of the OECD

Published online by Cambridge University Press: 11 May 2026

João Teixeira de Freitas

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João Teixeira de Freitas*: Affiliation:
Brussels School of Governance, Vrije Universiteit Brussel, Brussels (Belgium)
*: Email: joao.de.freitas@vub.be

Article contents

Abstract
Introduction
Context and Background
Case Selection and Methodology
NCP (Soft) Case Law Analysis
Reflection and Avenues for Further Research
Conclusion
Supplementary material
Funding statement
Competing interests
References

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Abstract

This article examines how the identification and assessment (I&A) of adverse environmental impacts (AEI) within corporate value-chain due diligence (VCDD) norms under the Guidelines of the Organisation for Economic Co-operation and Development (OECD) is normatively designed, and how it can be distinguished from similar legal requirements that already bind corporations to perform environmental impact assessments (EIAs). Through a systematic analysis of specific instances of National Contact Points (NCPs), the article investigates how these expectations have been interpreted and applied in practice in environmental disputes raising claims concerning the I&A due diligence stage. The findings highlight inconsistencies in how NCPs handle such claims and showcase the interpretative divergences concerning the ways in which they perceive the interplay between these VCDD expectations and other host-state legal requirements that bind corporations to conduct assessments of environmental impacts. Based on the analysis, the article then reflects on the specificities of I&A expectations, as well as on avenues for future research. The research argues that VCDD requirements for corporations to identify and assess adverse environmental impacts should be interpreted as setting independent normative commands that warrant a specific compliance assessment. The article concludes by issuing recommendations concerning the ways in which I&A expectations should be interpreted in practice to avoid blurring the boundaries between two distinct layers of home- and host-state regulation.

Keywords

Value chains Supply chains Due diligence Environmental impact assessment Adverse environmental impacts

Information

Type: Article
Information: Transnational Environmental Law , First View , pp. 1 - 23

DOI: https://doi.org/10.1017/S2047102526100302 [Opens in a new window]
Creative Commons: This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright: © The Author(s), 2026. Published by Cambridge University Press

1. Introduction

Corporate risk-based value-chainFootnote ¹ due diligence (VCDD)Footnote ² is a normativeFootnote ³ framework that requires enterprises to identify actual or potential adverse impacts in their value chains and take appropriate action to address them. During the past decade, several initiatives have developed VCDD norms to regulate the behaviour of corporationsFootnote ⁴ regarding the impacts their activities may have across different fields, rendering it an essential and widely recognized tool for companies to identify and address risks in their value chains.Footnote ⁵ Particularly within the European Union (EU), there has been an intensification of ‘the political appetite to “harden” VCDD standards’ in the environmental field,Footnote ⁶ evidenced by the approval of multiple laws on VCDD covering environmental issues in France,Footnote ⁷ Germany,Footnote ⁸ and, more recently, at the EU level.Footnote ⁹ These legal developments highlight the importance of studying VCDD norms to understand how they apply to concrete transnational environmental disputes involving the activities of enterprises. To explore this topic, this article argues that a suitable source for analysis is in the final instance decisions of National Contact Points (NCPs) of the Organisation for Economic Co-operation and Development (OECD),Footnote ¹⁰ which have applied to concrete environmental disputes the VCDD expectations contained in the 2011 version of the OECD Guidelines for Multinational Enterprises (Guidelines).Footnote ¹¹ While many types of environmental grievance could possibly fit the context of this study, this article focuses on VCDD environmental claims that concern the need for corporations to identify and assess adverse environmental impacts (I&A AEI). This narrow focus is justified because the expectation to identify and assess adverse environmental impacts (I&A of AEI) enshrines one of the main substantive expectations set by VCDD norms, which is arguably distinguishable from other normative commands present in those norms.Footnote ¹² Moreover, from an environmental perspective, there is a need to clarify the distinctiveness of this expectation in relation to similar legal obligations that routinely bind corporations to perform environmental impact assessments (EIAs)Footnote ¹³ – an analysis still lacking in the literature – highlighting increasingly urgent interpretive challenges about how these two regulatory layers may interact in the context of the transition of VCDD from soft to hard law.

With that objective in mind, this article starts by providing the context and background for this research by introducing two key topics central to the analysis (Section 2). Firstly, it highlights the role of NCPs as interpreters of VCDD norms (engaging with literature on OECD ‘soft’ case law analysis), justifying why their statements constitute suitable sources in this context. In doing so, the article highlights a gap in the literature regarding the systematic analysis of NCP final instance decisions that specifically address environmental grievances (Section 2.1). Secondly, it introduces the VCDD expectation relating to the I&A of AEI, summarizing its design in the context of the Guidelines and distinguishing it from similar normative commands that bind corporations to perform EIAs (Section 2.2). This contextual background informs the case selection and methodology adopted (Section 3), and grounds the analysis of OECD ‘soft’ case law performed (Section 4). The results of the analysis are then considered, highlighting avenues for further research (Section 5). The article concludes by summarizing the findings and providing recommendations on how I&A expectations should be interpreted in practice (Section 6). A summary table of the cases analyzed is provided as Supplementary Material for this article.

The article concludes that EIAs and VCDD represent two distinct but increasingly interconnected legal frameworks governing corporate environmental responsibility. However, NCPs display divergent interpretations concerning the interplay between the VCDD expectations to I&A AEI and other normative expectations that may bind corporations to conduct EIAs. This results in an inconsistent handling of I&A claims by NCPs, which mediate and analyze these grievances in some cases, while rejecting them from the outset in others. The clarifications provided by this article about the distinctiveness of VCDD I&A expectations and their relation to EIA obligations support the assertion that these two types of obligation set out independent normative commands for the assessment of environmental impacts that should have their own associated compliance assessments (that is, compliance with one does not necessarily imply compliance with the other). The article recommends that supervisory authorities, which interpret and apply VCDD norms, provide clear explanations regarding the ways in which the conduct of EIAs by companies is considered to also substantiate compliance with I&A expectations. Doing so is likely to promote a more rigorous compliance assessment under VCDD norms.

2. Context and Background

2.1. The Context of NCPs as Sources of Interpretative Power on VCDD

Despite the current hardening of soft-law standards on VCDD, case law and litigation on this subject are still developing in different jurisdictions. However, judicial decisions are not the only available data sources developing and applying VCDD expectations to concrete environmental disputes. As argued in the literature, studying NCP statements offers a method to gain insight into VCDD by analyzing the ongoing elaboration, explanation, and construction of what the concept entails.Footnote ¹⁴ Nonetheless, readers should be aware that NCP decisions cannot be considered jurisprudence or legal decisions.Footnote ¹⁵ NCPs are state-based non-judicial mechanisms providing an alternative dispute resolution framework through dialogue, mediation, and conciliation services.Footnote ¹⁶ Moreover, owing to most of their implementation arrangements being determined at the national level, NCPs possess varying procedural practices,Footnote ¹⁷ levels of resources,Footnote ¹⁸ and institutional designs,Footnote ¹⁹ resulting in an amalgam of bodies that arguably are not functionally equivalentFootnote ²⁰ and in which a coherence gap persists,Footnote ²¹ rendering the system generally fragmented, unpredictable, and opaque.Footnote ²² This variability is also reflected in the quality of the decisions obtained as sources for this study, as not all specific instances are concluded with recommendations or an analysis relevant to the implementation of the Guidelines.

Notwithstanding the status quo, the interpretative power of NCPs to develop the content of the Guidelines has been recognized in the practice of some NCPs by several authors,Footnote ²³ and has been argued to be a necessary and desirable component of the system by others.Footnote ²⁴ The findings of NCPs in specific instances have also been described as potentially providing ‘persuasive precedential value’,Footnote ²⁵ as being ‘important sources of information on corporates’ behaviour’,Footnote ²⁶ and their power to make recommendations and determinations has been characterized as a sign of the growing judicialization of the mechanism.Footnote ²⁷ For these reasons, this article argues that in the context of the hardening of soft VCDD norms, NCP decisions can and should be analyzed systematically to understand how these norms are applied in practice by dispute resolution bodies that have demonstrated themselves to be at least capable, and at best competent, in interpreting such norms.

Despite a growing number of publications analyzing OECD NCP decisions, few works seek to analyze such decisions in a comprehensive and systematic manner, and those that do have focused mostly on the human rights aspects of VCDD.Footnote ²⁸ Recent literature has also analyzed OECD ‘soft’ case law by focusing on specific operational contexts that may imply heightened VCDD,Footnote ²⁹ or by centring the analysis on the remedy outcomes obtained by complainants in this non-judicial mechanism.Footnote ³⁰ Various publications also adopt a limited approach, focusing on the work and decisions of specific NCPs, rather than encompassing an analysis of the entire OECD grievance mechanism system.Footnote ³¹ To the best of the author’s knowledge, no other academic work has tried to conduct a comprehensive and systematic analysis of OECD NCP decisions covering environmental protection disputes. Some research has covered environmental aspects incidentally by adopting an approach that centres on specific industry sectors that are commonly associated with adverse environmental impacts,Footnote ³² or by focusing on specific types of environmental impact.Footnote ³³ Furthermore, while some of the cases analyzed in this research may have been examined sporadically in other publications,Footnote ³⁴ such case-study approaches lack the systematic pedigree and broader insights offered in this article.

After providing contextual information on the role of NCPs as VCDD norm interpreters and exposing the current gaps in the literature concerning a systematic analysis of environmental VCDD disputes, the subsequent section synthesizes what the I&A of AEI entails in the context of VCDD norms, and outlines why it is important to distinguish it from similar legal obligations that routinely bind corporations to conduct EIAs.

2.2. The I&A of AEI under the OECD Guidelines and its Relation with EIA

The I&A of AEI is one of the primary substantive aspects of VCDD norms, and a crucial initial step in the VCDD process – essential for determining the adverse impacts that companies need to address and how they should be addressed.Footnote ³⁵ It is set out in the Guidelines’ placement on corporations of an expectation to carry out risk-based due diligence in relation to impacts that may arise from the enterprises’ own activities, or be directly linked to their operations, products or services through their value chains.Footnote ³⁶ In the environmental field, this implies both an adequate and timely collection and evaluation of information regarding current environmental impacts,Footnote ³⁷ as well as an assessment of foreseeable environmental impacts associated with corporate activities.Footnote ³⁸ In certain circumstances, corporations are also expected to prepare an appropriate EIA to assess the environmental impact of their activities.Footnote ³⁹ The Guidelines also emphasize that the public should be provided with information concerning the potential environmental impact of activities,Footnote ⁴⁰ and that the disclosure policies of the corporation should include material information on foreseeable (environmental) risk factors.Footnote ⁴¹

Beyond what is contained in the text of the Guidelines, the official OECD Guidance on Due Diligence (Guidance)Footnote ⁴² further clarifies the I&A process. It highlights that, at the first stage, enterprises are expected to carry out a broad scoping exercise, enabling them to map their operations and carry out an initial evaluation to identify the most significant risk areas in their value chains for further in-depth assessments.Footnote ⁴³ These areas of significant risk should be identified by considering sectoral, product, geographic, and enterprise-level risk factors.Footnote ⁴⁴ Corporations should then, at the second stage, perform in-depth assessments focusing on those high-risk areas.Footnote ⁴⁵ The outcome of these assessments should lead to a determination of both the level of involvement of the enterprise in actual or potential adverse impacts,Footnote ⁴⁶ as well as the significance (severity and likelihood) of these adverse impacts.Footnote ⁴⁷ Corporations should also meaningfully consult with stakeholders in their assessment of adverse impacts.Footnote ⁴⁸

The Guidance further clarifies that in order to conduct the I&A of AEI, corporations should draw information from other common environmental assessmentsFootnote ⁴⁹ that they may already be carrying out at a local level, such as EIAs, environmental inspections required for licensing certain economic activities,Footnote ⁵⁰ as well as environmental audits.Footnote ⁵¹ Information resulting from such environmental assessments should be used by the enterprise to assess the nature and extent of actual and potential impacts covered under the Guidelines,Footnote ⁵² although it should not be relied upon where doubts arise about its quality or independence.Footnote ⁵³ Thus, to perform the I&A of AEI, enterprises should use a mix of information derived from both their own (self)assessments and other environmental risk assessment procedures, which are sometimes regulated at a local level.Footnote ⁵⁴

Having made clear that the expectation for corporations to I&A AEI is connected to local EIA procedures (which represent sources of information for the I&A process), it is important to clarify how the I&A of AEI should be distinguished from such local processes. This need is particularly pressing, as the literature on VCDD and impact assessment has analyzed this step of the VCDD process mostly from a human rights perspective.Footnote ⁵⁵ However, while with regard to human rights due diligence the UNGP are largely responsible for mainstreaming the application of human rights impact assessments in the context of business activities, the same relationship cannot be established between the OECD Guidelines and EIAs. The application of EIAs to business activity contexts largely pre-dates the development of VCDD norms and was already part of the legal obligations with which corporations had to comply at the host-state levelFootnote ⁵⁶ in the context of obtaining permits and licences for conducting their activities. In fact, these same EIA requirements, in large measure, have inspired the design of the VCDD process imagined by Ruggie.Footnote ⁵⁷ There is thus a need in the environmental VCDD field to clarify the interplay between these two layers of regulation (home and host state), as they both contain normative commands for the assessment of environmental impacts connected with corporate activities, and to clarify what the expansion of VCDD obligations to the environmental field adds to the obligations of EIA that corporations already face. By highlighting the main differences between the two types of regulatory command, this article brings added clarity to this relationship.

Firstly, the expectations the Guidelines place on corporations to I&A AEI have been characterized as reflecting an international legal standard of corporate accountability according to which corporations should integrate environmental concerns into their operations (through conducting EIAs and establishing environmental management systems),Footnote ⁵⁸ which, contrary to host-state laws on EIA, is not triggered by a particular threshold of risk (meaning that companies are expected as a matter of practice to assess environmental impacts in all their activities on an ongoing basis).Footnote ⁵⁹ This standard contained in VCDD norms can thus both refer to additional impact assessments beyond those required by national law, as well as emphasize higher expectations regarding how business entities carry out assessments required by national legislation.Footnote ⁶⁰ Secondly, while EIA standards at the local level are usually focused on project-level impact assessments, the OECD Guidelines extend this expectation to conducting life-cycle assessments as a tool for the systematic evaluation of the environmental aspects at product or service levels through all stages of their life-cycle.Footnote ⁶¹ Thirdly, local host-state EIAs are used mostly in planning and licensing procedures at local/regional levels,Footnote ⁶² whereas the I&A of AEI is used continuously by companies throughout their VCDD process.Footnote ⁶³ Fourthly, while host-state EIA norms generally involve an evaluation of the positive (environmental/socio-economic) impacts associated with corporate activities,Footnote ⁶⁴ the expectation to I&A AEI requires only an analysis concerning adverse or negative environmental impacts.Footnote ⁶⁵ Finally, while EIAs are generally perceived as avenues for public participation, not all EIA frameworks require meaningful stakeholder engagement to assess environmental impacts,Footnote ⁶⁶ which is a clear expectation of the I&A process.

Despite the expansive nature of the expectations placed on corporations, the design of this normative command in the Guidelines is not free from criticism. The Guidelines do not provide a clear definition of what an environmental risk or impact is;Footnote ⁶⁷ nor do they reflect a specific requirement for enterprises to consider cumulative environmental impacts.Footnote ⁶⁸ It is also unclear whether the (self-)assessment of environmental impacts requires a specific substantive approach, and whether a profound rethinking of proposed corporate activities should also be considered.Footnote ⁶⁹ Finally, even if the OECD Guidance brings added clarity concerning the outcomes and procedural aspects to be taken into account by corporations when I&A AEI under VCDD norms, the concrete methodology to be adopted by corporations to conduct the I&A is still developing in practice.Footnote ⁷⁰

However, if one accepts that the introduction of VCDD obligations adds a regulatory layer to the obligations that corporations may have with regard to the I&A of AEI, then it becomes necessary to understand where the boundaries between these two areas of regulation lie, and what is the interplay between them. What could expectations on I&A of AEI entail beyond compliance with local EIA requirements? What kind of I&A is expected from corporations when impacts at stake are not captured by EIAs at the host-state level? This article argues that analyzing NCP statements can provide guidance on how soft legal expectations to I&A AEI have been interpreted and applied, possibly informing future interpretations of nascent legal obligations on the subject. Such analysis can aid in exploring how the application of I&A expectations takes place in practice, clarifying the blurred boundaries of the interplay between two distinct layers of regulatory intervention. This is what the next section of the article sets out to achieve, starting by explaining the case selection criteria adopted and methodology followed.

3. Case Selection and Methodology

The selection of cases for this research is based on an exhaustive analysis of all specific instances concluded under the OECD Database of Specific InstancesFootnote ⁷¹ that were filed between May 2011 and June 2023 – the effective period of applicability of the 2011 version of the Guidelines.Footnote ⁷² This choice is justified because the 2011 version was the first VCDD normative framework to extend its material scope of application to environmental protection matters. This resulted in an initial selection of 417 cases for further summary analysis of the content of the decisions to understand whether the disputes described raised any environmental issues. This analysis was important because the need to exercise due diligence over AEI can be argued by claimants or analyzed by NCPs under different chapters of the Guidelines. Most commonly, the chapter used is ‘Environment’; however, relevant analysis by NCPs on the need to exercise due diligence over AEI is often also conducted under the ‘General Policies’ or ‘Human Rights’ chapters of the Guidelines. This step in the selection resulted in the refinement of the total number of cases deemed suitable for in-depth analysis, leading to a pre-selection of 147 specific instances that raised environmental grievances to be analyzed by NCPs. All these final decisions of specific instances were then analyzed in-depth and qualitatively coded to identify whether they handled any I&A claims. For the purposes of this article, and to reflect the normative core associated with I&A expectations (identified in Section 2.2), I&A claims were deemed to concern any grievances alleging the lack of (or improper) conduct of environmental assessments by an enterprise, or the associated lack of (or improper) disclosure of information to stakeholders of the outcome of these processes. The final selection thus included not only cases that make explicit references to the norms of the Guidelines that are related to the I&A of AEI, but also cases that, despite not referring to specific norms, clearly decided on such issues (by issuing declarations relating to the implementation of the Guidelines concerning the types of corporate conduct an enterprise would be expected (or not expected) to adopt at the I&A stage). This in-depth analysis led to a further refinement of the selection, showcasing 23 specific instances where NCPs have explicitly addressed I&A claims. These selected statements were then further analyzed by identifying the underlying legal relationships that tied corporations to adverse impacts in specific cases, and by categorizing the outcomes obtained concerning the interpretation and application of the norms.

The research reveals that the outcomes concerning the interpretation and application of the norms can be generally divided into two types. Firstly, NCPs may refuse to analyze or mediate such claims, explaining the reasons for the decision when these reasons relate to the substantive issue under analysis. Secondly, they may proceed to analyze or mediate such claims, determining the applicability of the normative content of the Guidelines to the disputes at hand, and possibly developing the expectations of corporate behaviour contained therein. Still, in this second case, the way in which NCPs may develop and apply the content of the Guidelines differs considerably. While some NCPs issue clear determinations of compliance/non-compliance with the norms, describing how the company aligns (or fails to align) with the expectations contained therein, others limit themselves to issuing specific recommendations for future conduct regarding how corporations should assess environmental impacts. Furthermore, NCPs may also develop the content of the Guidelines when they successfully mediate and implicitly endorse agreements that reflect the expectations for conducting impact assessments contained in the Guidelines.

All these types of statement are considered in this research as sources of possible interpretations for I&A expectations. By performing such an analysis, the article contributes to a greater understanding of how NCPs apply them in concrete scenarios. However, given the heterogeneity of modes in which NCPs address these claims, reader caution is advised in relation to the formulation of conclusions of general application as if the sample of decisions analyzed represented a coherent body of jurisprudential analysis.

4. NCP (Soft) Case Law Analysis

This section presents the main results of the case analysis conducted, highlighting that NCPs display divergent interpretations regarding the interplay between I&A expectations set by the Guidelines and local host-state EIA requirements, resulting in inconsistent handling of these types of claim.

The research is presented in two subsections. The first highlights disputes where NCPs have refused to analyze I&A claims, providing justifications directly connected to the substantive I&A expectation contained in the Guidelines. The second section presents disputes where NCPs have accepted mediation of I&A claims, highlighting the relevant aspects of these decisions and how I&A claims were treated and analyzed by NCPs. A summary table of the NCP decisions analyzed is provided in the Supplementary Materials.

4.1. The Rejection of Analysis of I&A Claims

If the activities of corporations at the local host-state level are often already regulated by the imposition of EIA requirements, then it is necessary to understand what the imposition of VCDD obligations may add to the obligations that corporations already face at that level. However, some NCP statements leave readers questioning whether compliance with local EIA requirements may suffice to attain compliance with VCDD norms. This is the case when NCPs reject analyzing claims concerning the I&A of AEI in consideration of the (pending) outcome of local EIA processes – for example, in POSCO,Footnote ⁷³ Daewoo,Footnote ⁷⁴ Ascent,Footnote ⁷⁵ Seabridge,Footnote ⁷⁶ and Imperial.Footnote ⁷⁷ If one assumes that the introduction of VCDD norms adds an independent normative command for corporations to I&A AEI, then the decisions in these instances cast doubt on the independence of such normative command from those established at the local host-state level for corporations to conduct EIAs. In these cases, the rejection by NCPs is motivated specifically by aspects related to compliance with local EIA norms; however, reducing the interpretation and application of I&A expectations in VCDD norms to a mere check of compliance with local host-state laws on EIAs would undermine the utility of such normative command.

Several types of justification are advanced by NCPs in their rejections of these claims. Firstly, NCPs highlight their inability to analyze the disputes, given the fact that the administrative permitting procedure (or its judicial contestation) for the activities giving rise to adverse impacts is being undertaken at the same time as the NCPs’ assessment.Footnote ⁷⁸ Secondly, they emphasize that claims concerning these processes would not relate to business activities, but rather to administrative and judicial acts of public authorities.Footnote ⁷⁹ Thirdly, they underscore that NCPs are not empowered to review such acts.Footnote ⁸⁰ Fourthly, they refer to the possibility of conflict between their decisions and those of local public authorities.Footnote ⁸¹ Finally, NCPs refuse to analyze these claims when they consider that respondents do not have sufficient leverage to influence an EIA process that would fall under the responsibility of the project owner who contracted the respondent company to perform services.Footnote ⁸² Considering the cases presented subsequently, it will be evident that none of these reasons has prevented other NCPs from accepting and analyzing similar claims. As will be seen, NCPs have accepted complaints alleging I&A deficiencies despite the existence of parallel and ongoing administrative/judicial procedures concerning the local EIA process, and despite the formal legal responsibility of conducting EIAs falling on a local entity that established a business relationship with a VCDD-bound corporation (for example, Atradius,Footnote ⁸³ Van Oord Footnote ⁸⁴ ). Moreover, it is clear from multiple cases that some NCPs are willing to issue determinations of non-compliance with the I&A expectations of the Guidelines even when these would imply determining that local EIA processes have been inadequate or insufficient to comply with I&A expectations set by the Guidelines. This dynamic is analyzed in the following subsection.

4.2. Mediation and Analysis of I&A Claims

Where the activities giving rise to adverse impacts are subject to local EIA requirements, the assessment of I&A claims by NCPs highlights an approach focused on evaluating whether assessments conducted under local EIA processes have sufficiently complied with I&A expectations set by the Guidelines. This approach is particularly visible whenever NCPs declare non-compliance with I&A expectations of the Guidelines, despite considering that corporations had complied with local EIA requirements at host-state level. This was the case in Perenco,Footnote ⁸⁵ COPAGEF,Footnote ⁸⁶ Michelin,Footnote ⁸⁷ Rockwool,Footnote ⁸⁸ Glencore,Footnote ⁸⁹ and VOG. Footnote ⁹⁰ Even in cases where NCPs declared compliance with I&A expectations (such as in Statkraft Footnote ⁹¹ ), they would still take into account the adoption of higher standards for EIA than those required by Swedish law for the project at hand, indicating their willingness to evaluate whether the conduct adopted by the company in such local EIA processes substantively corresponded to the expectations set by the Guidelines.Footnote ⁹² The willingness of NCPs to engage in such assessments is also evidenced by their consultation of external experts to analyze the scientific and technical aspects of the EIAs conducted and assess their appropriateness in the context of the Guidelines.Footnote ⁹³

The interplay between I&A expectations set by the Guidelines and local host-state EIA requirements is also visible in instances where NCPs declared non-compliance with the Guidelines because they deemed that stakeholders were not made aware, in a timely and accessible manner, of the outcomes of local EIA processes. These deficiencies were at the centre of justifications advanced by NCPs in declaring non-compliance with VCDD norms in GCM,Footnote ⁹⁴ VOG,Footnote ⁹⁵ and Shell Footnote ⁹⁶ (despite apparent compliance with local EIA requirements).Footnote ⁹⁷ Moreover, the transparency of EIA outcomes was highlighted in specific recommendations to corporations in COPAGEF,Footnote ⁹⁸ Perenco,Footnote ⁹⁹ and Heidelberg.Footnote ¹⁰⁰ This suggests that, independently of whether local EIA standards require the disclosure and communication of their outcomes to stakeholders, such transparency would be expected under the normative commands established by the Guidelines.

Furthermore, even where the responsibility for conducting the local EIA does not fall directly on the respondent bound by VCDD norms (or other entity deemed to be part of its ‘own activities’) but rather on a local project owner/developer or public authority, this would not discharge the responsibilities of corporations to conduct due diligence (and thus I&A the AEI arising from the activities of business relations). The willingness of NCPs to mediate I&A claims in ANZ (Sugar),Footnote ¹⁰¹ NBIM,Footnote ¹⁰² Nordex,Footnote ¹⁰³ Atradius,Footnote ¹⁰⁴ Van Oord,Footnote ¹⁰⁵ and EKF Footnote ¹⁰⁶ provides support for this assertion. In all these cases, the responsibility to conduct an EIA at the host-state level fell either with local entities or public authorities (deemed not to be a part of the corporation’s ‘own activities’), but the responsibility of corporations to conduct due diligence in relation to AEI arising from activities giving rise to the dispute was firmly established by NCPs. This is because NCPs determined that in these cases the impacts referred to in the complaint were directly linked to the respondent enterprise’s products, services or operations through its value chains.Footnote ¹⁰⁷

It is essential to note that the OECD Guidelines establish distinct expectations for corporations to manage impacts to which they are directly linked, specifically regarding remediation and the use of leverage.Footnote ¹⁰⁸ Thus, while the obligations for companies to I&A AEI under VCDD apply to all companies bound by the norms, the level of involvement that may connect them with adverse impacts may change the means through which they are expected to ensure an appropriate I&A of AEI. The analysis of NCPs in these cases is consequently often focused on how enterprises may exercise leverage to ensure that an adequate I&A of AEI is performed through their business relationships. Depending on the contextual situation analyzed in the dispute, NCPs have recognized that different types of measure may constitute an adequate exercise of leverage. For example, for I&A claims concerning impacts caused by prospective business relationships, NCPs emphasized the need for corporations to adopt and implement screening and review procedures to ensure they I&A the AEI that may be directly linked to their operations, products or services. An apparent absence of screening and review procedures (NBIM Footnote ¹⁰⁹ ) or their inadequate implementation (ANZ (Sugar) Footnote ¹¹⁰ ) has motivated NCPs to issue declarations of non-compliance with the Guidelines’ I&A expectations. The importance of such review and screening mechanisms has been further highlighted in recommendations issued to companies, including Van Oord Footnote ¹¹¹ and Atradius,Footnote ¹¹² and was endorsed by the NCP in the detailed agreement obtained in Nordex.Footnote ¹¹³ The aim of such screening and review procedures is precisely to detect any deficiencies in the ways in which AEI are assessed or managed by these business relationships, in which corporations would be expected to exercise their leverage through the placement of preconditions concerning the ways in which these external actors assess and manage those impacts. The NCP in NBIM recommends expressly the placement of preconditions following an initial screening and review,Footnote ¹¹⁴ and its deployment via contractual means motivated a declaration of compliance with I&A expectations in EKF.Footnote ¹¹⁵ In addition to these measures that could be taken at a pre-contractual level, the NCP recommended in NBIM that in equity-based business relationships the company could exercise its leverage through shareholder proposals requesting investees to disclose an environmental and social impact assessment (ESIA) to obtain information necessary for I&A AEI.Footnote ¹¹⁶

Beyond leverage, NCPs in several decisions also emphasized the importance of maintaining a risk-based approach to I&A grounded in a robust prioritization mechanism.Footnote ¹¹⁷ The prioritization policy of the enterprise will be essential in these cases to justify why certain AEI may not have been assessed in-depth. For example, in NBIM the NCP declared the company non-compliant with the Guidelines because the prioritization policy it presented encompassed only children’s rights concerns, and the company had not been able to justify why assessments concerning other (environmental and human rights) impacts would not be performed in relation to the activities of entities in its investment portfolio.Footnote ¹¹⁸ The prioritization policy adopted by the corporation to assess environmental impacts of clients in its lending portfolio was also analyzed in-depth by the NCP in ANZ (GHG Emissions), and the company was declared to be compliant with the Guidelines despite only (assessing and) disclosing scope 3 emissions ‘in its power generation and commercial building portfolios’.Footnote ¹¹⁹ An agreement reflecting similar policies was also endorsed by the NCP in ING, where the company adopted a methodology that prioritized assessing the emissions of the eight most carbon-intensive sectors it financed.Footnote ¹²⁰

What these decisions highlight is that the expectation contained in the Guidelines with regard to I&A AEI does not necessarily imply conducting an in-depth assessment of any and all AEI that may be associated with a corporation’s activities. Thus, particularly in cases where adverse impacts giving rise to the complaints have not been assessed by any local process, I&A expectations may kick in and require that corporations bound by VCDD norms still conduct assessments that would deliver an analysis on both the level of involvement tying them to AEI, as well as their relative significance in the context of the enterprise’s activities. However, corporations may justify scoping out some environmental issues from these in-depth assessments during the process of identification of AEI.Footnote ¹²¹

Having presented the results of the analysis, the subsequent section reflects on them, highlighting also avenues for future research.

5. Reflection and Avenues for Further Research

This analysis has revealed specific instances where NCPs have addressed I&A claims related to environmental impacts, highlighting the different approaches adopted. While some rejections of NCPs cast doubts on the independence of the normative I&A command contained in the Guidelines, collectively, the instances where NCPs have taken up the analysis of these claims suggest that ensuring compliance with local EIA requirements may contribute to – but not necessarily encompass – identifying and assessing AEI in compliance with VCDD norms. This conclusion is supported by instances where NCPs declare non-compliance with the Guidelines’ I&A expectations, despite recognizing compliance with local EIA requirements. Local EIAs are used both by companies to I&A AEI, as well as by NCPs to evaluate whether corporate behaviour is aligned with I&A expectations contained in the Guidelines. This suggests a complementary relationship between the two obligations, where compliance with local EIA requirements may contribute to compliance with I&A of AEI. Nonetheless, the instances analyzed emphasize that to comply with VCDD I&A norms, businesses may need to adopt higher or more stringent standards concerning the ways in which EIAs are carried out at the host-state level. Despite this, not all AEI connected with corporate activities will necessarily be encompassed or covered by local EIAs at the host-state level. In such cases, the emphasis of the analysis advanced by NCPs highlights the need for corporations to conduct additional (self-)EIAs beyond those that their activities – or those of their business relationships – may already be bound to conduct at local level, guided by the enterprise’s VCDD prioritization process (see discussion in Section 2.2) and not mediated in any way by local host-state EIA requirements.

What remains unclear in both cases is what the appropriate benchmark would be to guide corporations in adopting higher standards or conducting additional (self-)impact assessments. While the answer to this question is likely to remain context-dependent, some decisions suggest that the adoption by enterprises of international standards aimed specifically at promoting the identification, assessment, and management of adverse environmental impacts is viewed positively by NCPs.Footnote ¹²² Cases analyzed refer to the International Finance Corporation (IFC) Performance Standards on Environmental and Social SustainabilityFootnote ¹²³ (GCM, EKF, Atradius, Glencore),Footnote ¹²⁴ International Organization for Standardization (ISO) Standards (VOG, ANZ (GHG Emissions)),Footnote ¹²⁵ and other international frameworks designed specifically for the assessment of carbon emission impacts (ANZ (GHG Emissions), ING).Footnote ¹²⁶ This suggests that, while it remains unclear how far beyond compliance with local EIA requirements corporations need to go to ensure alignment with VCDD norms – or how they should assess AEI not captured under local EIAs – the use of recognized international frameworks enhances alignment with the Guidelines’ expectations. The concrete identification of appropriate benchmarks depending on the context of corporate activities remains an avenue for further research.

Another question that requires further development relates to the ways in which corporations bound by VCDD norms can access or produce information relevant to their I&A of AEI. In cases where the enterprise directly causes adverse impacts, or through an entity deemed part of its own activities, in principle, information on environmental impacts can be more easily accessed and gathered by the corporation itself.Footnote ¹²⁷ However, when adverse impacts arise from the activities of business relationships, corporations may face significant barriers in accessing local EIA documents or influencing the local EIA process carried out by other actors. Moreover, it may be impossible for these corporations to collect data on environmental indicators when they do not have physical access to the territory where environmental impacts caused by business relationships are felt. Still, the NCP instances analyzed support the view that corporations bound by VCDD are expected, via the exercise of leverage, to ensure that those impacts are assessed and adequately managed. The ways in which corporations may leverage their position to do so are, again, probably highly context-dependent. However, the specific instances analyzed showcase that by implementing screening and review procedures for prospective business relationships, corporations may be able to detect environmental performance issues and impose conditions on how these are assessed and managed. Moreover, corporations may use shareholder proposals to request that business relationships established through equity perform or disclose EIAs relevant to the I&A of AEI. Still, many questions remain unanswered concerning the ways in which corporations may obtain information deemed necessary to assess environmental impacts, particularly when impacts do not arise from their own activities, and requests for information addressed to (indirect) business relationships on environmental impact assessments are denied. A possible response lies in the processes of meaningful stakeholder engagement (MSE) that should inform the I&A of AEI, enabling corporations to obtain relevant information directly from affected and non-affected stakeholders. However, this topic is highlighted here as an avenue for further research that deserves a specific focus, especially considering MSE is also one of the fundamental substantive aspects of VCDD norms.

Finally, an issue that warrants further attention is the transnational judicialization of environmental governance.Footnote ¹²⁸ As made clear by this article, the application of VCDD norms to a corporation may provide a pathway for claims concerning the inadequacy of I&A to be heard and evaluated. By establishing such a pathway, VCDD norms may become a crucial means of holding enterprises accountable, and advancing the development and enforcement of polycentric governance regimes.Footnote ¹²⁹ However, the issuance of unilateral decisions concerning the environmental affairs of other countries raises concerns over the international and institutional legitimacy of the emerging corporate accountability apparatus.Footnote ¹³⁰ Moreover, the practical effects of environmental due diligence will depend heavily on how courts, civil society organizations, companies, researchers, and other actors engage with it.Footnote ¹³¹ Nonetheless, it is undeniable that environmental due diligence opens a new transnational space for strategic litigation and mobilization.Footnote ¹³² Further research is required to understand the conditions under which a home-state decision might overstep the authority of host-state administrative or judicial bodies. This article has argued that the reasons advanced by NCPs for refusing to analyze I&A claims do not appear sufficiently strong to justify home-state bodies applying VCDD norms abstaining from analyzing such claims. Admittedly, there may be cases where deciding I&A claims in home states could result in conflict, particularly when compliance with home-state transnational VCDD laws would inadvertently lead to non-compliance with local host-state laws. However, if one assumes these two regulatory layers have distinct normative commands that require independent compliance assessments, this situation will arise only if one of the frameworks prescribes conduct that is strictly prohibited under the other, or if jurisdiction is exercised in a way that violates the principle of non-intervention under international law.Footnote ¹³³ In this research, one such situation appeared to materialize where the NCP in Perenco expressly recommended that EIA outcomes be shared with complainants, but the company had argued that doing so would place it in violation of local Tunisian law.Footnote ¹³⁴ Aside from these situations, the ability of home-state bodies to consider the national interests and policy space of host states rests uncompromised, as appeared to be the case in Statkraft.Footnote ¹³⁵ While the ways in which these potential diverging interests between home and host states should be articulated and harmonized may not be clear, it does seem an important aspect to consider and is worthy of further exploration.

6. Conclusion

EIAs and VCDD represent two distinct but increasingly interconnected legal frameworks governing corporate environmental responsibility. While EIAs focus on project-specific environmental evaluations during planning phases, VCDD mandates ongoing I&A of AEI across global value chains. EIAs provide localized, technical assessments with relatively clear compliance benchmarks, while VCDD introduces continuous transnational responsibilities requiring adaptive risk management systems.

This article argues that these two sources of obligations establish independent normative commands for assessing environmental impacts, which should have their own associated compliance assessments. However, the practice of NCPs in handling I&A claims raises questions concerning the uniformity of this view within the NCP system. To avoid this issue, rejection of I&A claims by reference to an EIA process should be avoided unless home-state bodies applying VCDD norms provide sufficient detail explaining why the EIA process in question ensures alignment with the I&A expectations contained in the Guidelines. If this is not the case, the boundaries between these two areas of regulation may become blurred, and the application of VCDD norms to I&A claims is left subject to the interpretative leeway afforded to home-state bodies. Similarly, if corporations want to frame arguments on compliance with I&A expectations based on compliance with local EIA standards, they should explain in detail why compliant behaviour with host-state law also aligns with the I&A expectations. Failure to consider these factors risks jeopardizing policy coherenceFootnote ¹³⁶ and posing problems about the lack of a level playing field among different NCPs.Footnote ¹³⁷ Moreover, one can also anticipate that such issues have the potential of being repeated concerning the functioning of national authorities that will be charged with supervising the recently adopted EU Directive 2024/1760 on Corporate Sustainability Due Diligence (CSDDD).Footnote ¹³⁸

The OECD does not appear to be downplaying such issues, and recent changes adopted in the 2023 version of the Guidelines may help to promote clarity and consistency in the application of the norms.Footnote ¹³⁹ Ensuring that VCDD obligations are interpreted and applied with rigour – and that they are clearly distinguished from host-state obligations – will strengthen the independent, impartial, and meritorious operation of supervisory authorities. This is key to the effective supervision of corporate VCDD obligations and the promotion of coherent and responsible transnational environmental governance.Footnote ¹⁴⁰

Supplementary material

To view supplementary material for this article, please visit https://doi.org/10.1017/S2047102526100302.

Acknowledgements

The author would like to thank and acknowledge the contribution of Colin Mackie (University of Nottingham (United Kingdom)), who kindly accepted an invitation to discuss and comment on an earlier version of this article during a research colloquium organized by the Brussels School of Governance (BSoG) of the Vrije Universiteit Brussel (Belgium) in May 2024.

Funding statement

This article has received funding from the European Research Council (ERC) under the EU’s Horizon 2020 research and innovation programme (Grant Agreement No. 949690).

Competing interests

The author disclosed none.

References

¹ In this article, ‘value chains’ is used broadly to mean all activities that convert inputs into outputs by adding value. It includes entities with which the enterprise has a direct or indirect business relationship and which either (a) supply products or services that contribute to the enterprise’s own products or services, or (b) receive products or services from the enterprise, as defined in Office of the High Commissioner for Human Rights (OHCHR), ‘The Corporate Responsibility to Respect Human Rights: An Interpretative Guide’, 2012, UN Doc. HR/PUB/12/02, p. 8, available at: https://www.ohchr.org/sites/default/files/Documents/Issues/Business/RtRInterpretativeGuide.pdf.

² For a current account of the concept and its development from an environmentally focused perspective see K. Eller, ‘Corporate Environmental Due Diligence and Value Chains’, in J. van Zeben & C. Hilson (eds), A Research Agenda for Environmental Law (Edward Elgar, 2025), pp. 143–56; D. Krebs, ‘Environmental Due Diligence Obligations in Home State Law with regard to Transnational Value Chains’, in P. Gailhofer et al. (eds), Corporate Liability for Transboundary Environmental Harm (Springer, 2023), pp. 245–350.

³ In this article, ‘normative’ is an adjective used to describe a relation to, or prescription of, norms or standards for corporate behaviour. Normativity is not necessarily based on an obligatory character of the norms or on their justiciability.

⁴ The term ‘corporations’ is used interchangeably with the terms ‘businesses’, ‘companies’, ‘undertakings’, ‘firms’ or ‘enterprises’. It is meant to describe any entity to which VCDD norms may be applied, and from which compliance is expected.

⁵ The original and most prominent example of a soft-law initiative in this respect (which influenced several other normative frameworks to integrate risk-based VCDD) is found in the UN Guiding Principles on Business and Human Rights (UNGP), in OHCHR, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, 2011, UN Doc. HR/PUB/11/04, available at: https://digitallibrary.un.org/record/720245.

⁶ C. Mackie, ‘Due Diligence in Global Value Chains: Conceptualizing “Adverse Environmental Impact”’ (2021) 30(3) Review of European, Comparative & International Environmental Law, pp. 297–312, at 298.

⁷ Law No. 2017-399 of 27 Mar. 2017 relating to the Vigilance Duty of Parent and Lead Enterprises (Loi n° 2017–399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre), unofficial translation available at: https://www.business-humanrights.org/en/latest-news/french-duty-of-vigilance-law-english-translation.

⁸ Act on Corporate Due Diligence Obligations in Supply Chains of 16 July 2021 (Lieferkettensorgfaltspflichtengesetz), official translation of the German Federal Ministry of Labour and Social Affairs (2021), available at: https://www.bmas.de/SharedDocs/Downloads/DE/Internationales/act-corporate-due-diligence-obligations-supply-chains.pdf?__blob=publicationFile&v=4.

⁹ Directive (EU) 2024/1760 on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859 [2024] OJ L 2024/1760 (CSDDD).

¹⁰ It is beyond the scope of this article to provide an overview of the system and its historical evolution. Such work has already been performed in academic literature; see, in particular, S. van’t Foort, ‘The History of National Contact Points and the OECD Guidelines for Multinational Enterprises’ (2017) 25 Rechtsgeschichte-Legal History, pp. 195–214; O. Svoboda, ‘Coming of Age: The System of OECD National Contact Points for Responsible Business Conduct in its 20 Years’, in M. Bungenberg et al. (eds), European Yearbook of International Economic Law 2020 (Springer, 2022), pp. 31–54.

¹¹ OECD, ‘OECD Guidelines for Multinational Enterprises, 2011 Edition’, 25 Sept. 2011, available at: https://www.oecd-ilibrary.org/governance/oecd-guidelines-for-multinational-enterprises_9789264115415-en (OECD Guidelines).

¹² While some overlaps are bound to exist between this and other normative commands contained under VCDD norms (and while acknowledging that claims relating to other normative commands are also argued by claimants and/or analyzed by NCPs in the specific instances selected in this article), these overlaps do not seem to compromise the ability to identify and individualize in NCP decisions the corresponding expectations that those bodies deem to be placed on corporations by norms concerning the I&A of AEI. Moreover, this article argues that providing an analysis of VCDD by focusing on specific substantive elements of the norms ensures the granularity and exhaustiveness of the analysis presented.

¹³ Giving an overview of the development of EIA legal obligations is beyond the scope of this article, but relevant literature will be cited to distinguish this process from the I&A of AEI. In general, information on this topic can be found, e.g., in J. Glasson & R. Therivel, Introduction to Environmental Impact Assessment (Routledge, 2019); B. Carroll et al., ‘EIA in Context’, in B. Carroll et al. (eds), Environmental Impact Assessment Handbook: A Practical Guide for Planners, Developers and Communities (ICE Publishing, 2019), pp. 1–12; T. Hundloe, Environmental Impact Assessment: Incorporating Sustainability Principles (Springer, 2021); K. Hanna & L. Arnold, ‘An Introduction to Environmental Impact Assessment’, in K. Hanna (ed.), Routledge Handbook of Environmental Impact Assessment (Routledge, 2022), pp. 3–21; A. Fonseca, ‘Introduction to the Handbook of Environmental Impact Assessment’, in A. Fonseca (ed.), Handbook of Environmental Impact Assessment (Edward Elgar, 2022), pp. 2–27.

¹⁴ Describing the potential of NCP statements as guidance for VCDD, see K. Buhmann, ‘Analysing OECD National Contact Point Statements for Guidance on Human Rights Due Diligence: Method, Findings and Outlook’ (2018) 36(4) Nordic Journal of Human Rights, pp. 390–410, at 390–3; R. McCorquodale, Business and Human Rights (Oxford University Press, 2024), p. 89.

¹⁵ S. van’t Foort, ‘Due Diligence and Supply Chain Responsibilities in Specific Instances: The Compatibility of the Dutch National Contact Point’s Decisions with the OECD Guidelines for Multinational Enterprises in the Light of Decisions Made by the UK, German, Danish and Norwegian National Contact Points’ (2019) 12(4) Erasmus Law Review, pp. 61–79, at 69.

¹⁶ P. Perillo, ‘The Role of the OECD Guidelines for Multinational Enterprises and the National Contact Points in Shaping the Future of Corporate Accountability’ (2022) 24(1–2) International Community Law Review, pp. 36–56, at 39; O. Svoboda, ‘The OECD Guidelines for Multinational Enterprises and the Increasing Relevance of the System of National Contact Points’, in P. Šturma & V.A. Mozetic (eds), Business and Human Rights (rw&w Science & New Media, 2018), pp. 52–63, at 56–7.

¹⁷ Arguing for a harmonization of procedural practices of all NCPs, see J.L. Černič, ‘The Future of Supervision Mechanisms under the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct’, in O. Davaanyam & M. Krajewski (eds), Exploring Corporate Human Rights Responsibilities in OECD Case Law (Springer, 2025), pp. 85–102, at 97. In the same sense, highlighting these divergent practices are a well-documented challenge; see Svoboda, n. 10 above, pp. 35–6.

¹⁸ Arguing that NCPs do not count with sufficient human resources to comply fully with their task of promoting the Guidelines and handling complaints, see L.I. Álvarez, ‘Improving the Effectiveness of Non-Judicial Mechanisms under the OECD National Contact Points: Issues of Legitimacy and Accessibility’, in Davaanyam & Krajewski (eds), n. 17 above, pp. 135–53, at 144; Černič, n. 17 above, p. 91; K. Bhatt & G.E. Türkelli, ‘OECD National Contact Points as Sites of Effective Remedy: New Expressions of the Role and Rule of Law within Market Globalization?’ (2021) 6(3) Business and Human Rights Journal, pp. 423–48, at 443.

¹⁹ For recent analysis raising questions around the consequences of the flexibility awarded to NCPs in relation to their institutional design on the level of their independence and impartiality see Álvarez, n. 18 above, pp. 141–4. In the same sense, see Černič, n. 17 above, pp. 91–3; Bhatt & Türkelli, n. 18 above, p. 431.

²⁰ Finding that NCPs have fundamentally different conceptions of their roles and powers regarding the handling of complaints, see J.C.O. Sanchez, ‘The Roles and Powers of the OECD National Contact Points regarding Complaints on an Alleged Breach of the OECD Guidelines for Multinational Enterprises by a Transnational Corporation’ (2015) 84(1) Nordic Journal of International Law, pp. 89–126, at 90–107. In the same sense, see Van’t Foort, n. 15 above, ss. 1.6, 5.

²¹ Černič, n. 17 above, pp. 86, 93, 99.

²² See discussion of NCPs and the rule of law in Bhatt & Türkelli, n. 18 above, pp. 429–34, 439–41.

²³ A. Marx, J. Wouters & W. van Doren, ‘International Informal Law-Making and Multi-Level Governance Intermediaries: The Case of National Contact Points under the OECD Guidelines for Multinational Enterprises and Dispute Settlement’, Leuven Centre for Global Governance Studies, Paper No. 22, Dec. 2014, available at: https://ghum.kuleuven.be/ggs/research/policy-research-centre/documents-1/22-national-informal-law-making-and-multi-level.pdf; M.C. Malaguti, ‘From Soft to Hard Law and Interpretation: The Case of the OECD Guidelines for Multinational Enterprises and the Role of the National Contact Points’ (2024) 10(2) Oslo Law Review, pp. 1–17; Van’t Foort, n. 15 above.

²⁴ Sanchez, n. 20 above.

²⁵ L. Achtouk-Spivak & R. Garden, ‘OECD National Contact Point Specific Instances: When “Soft Law” Bites?’ (2022) 13(4) Journal of International Dispute Settlement, pp. 608–42, at 634.

²⁶ Svoboda, n. 10 above, p. 41.

²⁷ Achtouk-Spivak & Garden, n. 25 above, p. 641.

²⁸ See, e.g., Davaanyam & Krajewski, n. 17 above; Buhmann, n. 14 above; B. Bağlayan, ‘Searching for Human Rights Norms for Corporate Conduct in Domestic Jurisprudence: A Bottom-Up Approach to International Law’ (2018) 36(4) Nordic Journal of Human Rights, pp. 371–89.

²⁹ K. Buriakovska & O. Davaanyam, ‘Analyzing Heightened Corporate Human Rights Responsibilities in the Context of OECD Case Law’, in Davaanyam & Krajewski, n. 17 above, pp. 27–49.

³⁰ K. Otteburn, ‘Degrees of Remedy: Understanding Remedy Outcomes at the OECD National Contact Points’, in Davaanyam & Krajewski, n. 17 above, pp. 103–33; K. Otteburn, ‘Reaching the Limit: Access to Remedy through Nonjudicial Mechanisms for Victims of Business-related Human Rights Abuses’ (2024) 28(2) The International Journal of Human Rights, pp. 220–44; C. Macchi, ‘The Role of the OECD National Contact Points in Improving Access to Justice for Victims of Human Rights Violations in the EU Member States’, in C.M. Carrasco & I.V. Téson (eds), La implementación de los Principios Rectores de las Naciones Unidas sobre empresas y los derechos humanos por la Unión Europea y sus Estados Miembros (Thomson Reuters-Aranzadi, 2017), pp. 145–65; S. Khoury & D. Whyte, ‘Sidelining Corporate Human Rights Violations: The Failure of the OECD’s Regulatory Consensus’ (2019) 18(4) Journal of Human Rights, pp. 363–81.

³¹ K.I. Otteburn, ‘No Guidance at the Belgian OECD National Contact Point: Can Mediation Alone “Further the Effectiveness of the Guidelines”?’ (2021) 7(1) International Labor Rights Case Law, pp. 33–8; C. Hackett, C. O’Kelly & C. Patton, ‘The Case of the Irish National Contact Point for the OECD Guidelines for Multi National Enterprises: Challenges and Opportunities for the Business and Human Rights Landscape in Ireland’ (2019) 61 The Irish Jurist, pp. 99–121; S. van‘t Foort, T. Lambooy & A. Argyrou, ‘The Effectiveness of the Dutch National Contact Point’s Specific Instance Procedure in the Context of the OECD Guidelines for Multinational Enterprises’ (2020) 16(2) McGill Journal of Sustainable Development Law, pp. 191–228; Van’t Foort, n. 15 above; C.N. Franciose, ‘A Critical Assessment of the United States Implementation of the OECD Guidelines for Multinational Enterprises’ (2007) 30(1) Boston College International and Comparative Law Review, pp. 223–36.

³² O. Davaanyam, ‘Articulating Responsibility for Human Rights and the Environment in the Financial Sector: Outlook on the Concrete Cases of the OECD National Contact Points’, in Davaanyam & Krajewski, n. 17 above, pp. 51–82; D. Branchini, ‘The National Contact Points for the OECD Guidelines for Multinational Enterprises: A Global “Network” for a Responsible Agri-Food Supply Chain’ (2019) 21(2) Economia Agro-Alimentare/Food Economy, pp. 523–38; E. Oshionebo, ‘The OECD Guidelines for Multinational Enterprises as Mechanisms for Sustainable Development of Natural Resources: Real Solutions or Window Dressing?’ (2013) 17(2) Lewis & Clark Law Review, pp. 545–89.

³³ F. Mussi, ‘A Climate Change Outlook on the 2023 OECD Guidelines for Multinational Enterprises on Responsible Business Conduct: Which Contribution from the Practice of the NCPs?’, in Davaanyam & Krajewski, n. 17 above, pp. 9–25.

³⁴ See, e.g., N. Bugalski & D. Pred, ‘Lessons from the ANZ-Phnom Penh Sugar Case for the OECD National Contact Point System of Corporate Accountability’ (2023) 8(3) Business and Human Rights Journal, pp. 448–53; D. Ziebarth, ‘Industry, Climate Change, and Human Rights: Assessing Two Cases Before National Points of Contact for the OECD Guidelines’ (2023) 56(1) NYU Journal of International Law & Politics, pp. 1–10.

³⁵ OECD, OECD Due Diligence Guidance for Responsible Business Conduct (OECD Publishing, 2018), p. 21, available at: https://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance-for-Responsible-Business-Conduct.pdf (OECD Guidance). This is likewise identified as one of the main steps of the VCDD process in academia; see, e.g., McCorquodale, n. 14 above, pp. 108ff; P. Muchlinski, Advanced Introduction to Business and Human Rights (Edward Elgar, 2022), pp. 100ff. This step of the VCDD process is also specifically regulated and singled out in Art. 8 of the new EU CSDDD Directive, n. 9 above.

³⁶ OECD Guidelines, n. 11 above, Ch. II, s. A, paras 10–12.

³⁷ Ibid., Ch. VI, para. 1(a).

³⁸ Ibid., Ch. VI, para. 3.

³⁹ Ibid., Ch. VI, para. 3.

⁴⁰ Ibid., Ch. VI, para. 2(a).

⁴¹ Ibid., Ch. III, para. 2(f). These are communication and disclosure activities that, arguably, presuppose a prior assessment of environmental impacts.

⁴² OECD Guidance, n. 35 above, p. 65.

⁴³ Ibid., pp. 25, 62.

⁴⁴ Ibid., p. 62.

⁴⁵ Ibid., p. 66.

⁴⁶ Ibid., p. 27.

⁴⁷ Ibid., p. 28. See also, for an in-depth development and reflection in the literature, J. Teixeira de Freitas, ‘Prioritisation under Value Chain Due Diligence’ (2024) 15(4) European Journal of Risk Regulation, pp. 985–98.

⁴⁸ The OECD Guidance (n. 35 above, pp. 25, 27–8) makes clear that stakeholder engagement should take place during the various stages of this assessment process, complementing the mandate of meaningful stakeholder engagement established by the Guidelines (n. 11 above, Ch. II, s. A, para. 14; and Ch. VI, para. 2b). This is the case even if the Guidelines are silent on the process and outcome of such stakeholder consultations, and do not specifically urge corporations to seek prior approval or consent from host communities for projects that are acknowledged to pose significant environmental risks, as argued in Oshionebo, n. 32 above, pp. 545, 550.

⁴⁹ OECD Guidance, n. 35 above, p. 65.

⁵⁰ Ibid.

⁵¹ Ibid., p. 26, para. (d).

⁵² Ibid.

⁵³ OECD, Handbook on Environmental Due Diligence in Mineral Supply Chains (OECD Publishing, 2023), p. 34, available at: https://www.oecd-ilibrary.org/finance-and-investment/handbook-on-environmental-due-diligence-in-mineral-supply-chains_cef843bf-en (OECD Handbook).

⁵⁴ This last point is further confirmed and supported with an emphasis on upstream environmental VCDD by sectoral guidance issued by the OECD: ibid., pp. 31–2.

⁵⁵ For an empirical approach stemming from VCDD literature see R. McCorquodale et al., ‘Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises’ (2017) 2(2) Business and Human Rights Journal, pp. 195–224, at 205–12. For a human rights-based approach stemming from impact assessment literature see N. Götzmann, ‘Chapter 1: Introduction to the Handbook on Human Rights Impact Assessment: Principles, Methods and Approaches’, in N. Götzmann (ed.), Handbook on Human Rights Impact Assessment (Edward Elgar, 2019), pp. 2–30.

⁵⁶ For a detailed analysis of the concepts of home and host state in the context of environmental VCDD see Krebs, n. 2 above, pp. 250, 291.

⁵⁷ Eller, n. 2 above, p. 146; UN Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Human Rights Impact Assessments – Resolving Key Methodological Questions’, 5 Feb. 2007, UN Doc. A/HRC/4/74, pp. 4–6, available at: https://documents.un.org/doc/undoc/gen/g07/106/14/pdf/g0710614.pdf.

⁵⁸ E. Morgera, Corporate Environmental Accountability in International Law (Oxford University Press, 2020), pp. 148–55. Morgera also highlights in her research that the international corporate accountability standard in relation to the (self-)assessment of environmental impacts has been integrated in several international normative frameworks on corporate accountability, e.g., the OECD Guidelines (n. 11 above), the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (26 Aug. 2003, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, available at: https://digitallibrary.un.org/record/501576?v=pdf), and the International Finance Corporation (IFC) Performance Standards on Environmental and Social Sustainability, 1 Jan. 2012 (available at: https://www.ifc.org/en/insights-reports/2012/ifc-performance-standards).

⁵⁹ Morgera, n. 58 above, p. 149.

⁶⁰ Ibid.

⁶¹ Ibid., p. 150. See also B. Mazijn & J.P. Revéret, ‘Life Cycle Sustainability Assessment: A Tool for Exercising Due Diligence in Life Cycle Management’, in G. Sonnemann & M. Margni (eds), Life Cycle Management (Springer, 2015), pp. 51–63.

⁶² See, e.g., Hanna & Arnold, n. 13 above, p. 3; Carroll et al., n. 13 above, p. 1.

⁶³ For a detailed enumeration of the different moments where I&A should take place see, in particular, OECD Guidance, n. 35 above, p. 25, paras (f), (g); p. 26, paras (f), (g).

⁶⁴ See, e.g., Hanna & Arnold, n. 13 above, p. 11; Fonseca, n. 13 above, pp. 9, 11. This generally involves the use of methods such as ‘economic impact evaluation’ or ‘cost–benefit analysis’, which are not able to assess impacts on non-utilitarian values; see C. Joseph et al., ‘The Role of Cost-Benefit Analysis and Economic Impact Analysis in Environmental Assessment: The Case for Reform’ (2020) 38(6) Impact Assessment and Project Appraisal, pp. 491–501.

⁶⁵ While the Guidelines do make clear that corporations should ‘contribute to economic, environmental and social progress with a view to achieving sustainable development’ (OECD Guidelines, n. 11 above, Ch. II, s. A, para. 1, Ch. VI, chapeau), they do not contain any normative command that specifically requires corporations to I&A the beneficial or positive impacts that their activities may have on the environment (or any other policy issue).

⁶⁶ See Glasson & Therivel, n. 13 above, Ch. 6.

⁶⁷ Mackie, n. 6 above, p. 298. Examples of environmental impacts are provided in the OECD Guidance, n. 35 above, p. 39.

⁶⁸ Morgera, n. 58 above, p. 151.

⁶⁹ Ibid., p. 153.

⁷⁰ Teixeira de Freitas, n. 47 above, p. 989.

⁷¹ OECD, ‘National Contact Points for Responsible Business Conduct Database’, available at: https://mneguidelines.oecd.org/database.

⁷² OECD Guidelines, n. 11 above.

⁷³ Korea NCP, ‘Initial Assessment: Lok Shakti Abhiyan (India) v. Posco’ (2014), available at: https://www.oecdwatch.org/download/29167/?tmstv=1741805562.

⁷⁴ Korea NCP, ‘Initial Assessment: Aminigboko Community v. Daewoo’ (2021), available at: https://www.oecdwatch.org/download/29169/?tmstv=1741805678.

⁷⁵ Slovenia NCP, ‘Initial Assessment: Slovenian NGOs v. Ascent Resources’ (2020), available at: https://www.gov.si/assets/ministrstva/MGRT/Dokumenti/DIPT/NKT/Initial-Assessment-Fracking_NCP-Slovenia.doc.

⁷⁶ Canada NCP, ‘Final Statement: Southeast Alaska Conservation Council v. Seabridge Gold’ (2017), available at: =https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/final_stat-seabridge-comm_finale.aspx?lang=eng.

⁷⁷ Canada NCP, ‘Final Statement: Southeast Alaska Conservation Council v. Imperial Metals Corporation’ (2020), available at: =https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/2020-05-07-ncp-pcn.aspx?lang=eng.

⁷⁸ See Korea NCP, n. 73 above, p. 6; Korea NCP, n. 74 above, pp. 6–7; Slovenia NCP, n. 75 above, p. 11.

⁷⁹ Korea NCP, n. 73 above, pp. 6, 8.

⁸⁰ Korea NCP, n. 73 above, p. 8; Canada NCP, n. 76 above, para. 28; Canada NCP, n. 77 above, para. 25.

⁸¹ Korea NCP, n. 73 above, p. 8.

⁸² Korea NCP, n. 74 above, p. 6.

⁸³ The Netherlands NCP, ‘Both ENDS et al. v. Atradius’ (2016), available at: https://www.oecdguidelines.nl/documents/publication/2016/11/30/final-statement-notification-both-ends--forum-suape-vs-atradius-dsb.

⁸⁴ Brazil NCP, ‘Final Statement: Association Forum Suape Environmental Space et al. v. Van Oord Marine Ingenuity et al.’ (2020), available at: https://www.gov.br/mdic/pt-br/assuntos/camex/pcn/produtos/relatorios-finais/20200605_final-declaration-van-oord.pdf.

⁸⁵ The NCP notes that the enterprise had conducted EIAs as required by Tunisian law and submitted them to the relevant authorities. However, it declared the company non-compliant stating that it ‘did not get details on the frequency of impact assessments and water analyses’ (emphasis added): France NCP, ‘Final Statement: “Perenco in Tunisia”’ (2022), pp. 8–10, available at: https://www.tresor.economie.gouv.fr/Institutionnel/Niveau3/Pages/3c98c1c4-0d82-4fd2-9f7e-94b924152f2c/files/abb8db3e-2ff1-4986-b84c-ed4afeb2666c.

⁸⁶ The NCP noted the realization of EIA studies by the company to comply with local Cameroonian planning law; however, it determined that ‘[g]iven the actual and potential impacts of agro-industrial activity and climate change, the assessment of environmental and health risks and the quality of surface and groundwater should be more frequent’ (emphasis added): France NCP, ‘Final Statement: 14 Local Watch Committees and Centre of Actions for Life and Earth v. COPAGEF, SOMDIAA and SOSUCAM in Cameroon’ (2022), p. 12, available at: https://www.tresor.economie.gouv.fr/Institutionnel/Niveau3/Pages/902fd2b1-7b77-4429-b4a9-feca3c7dbe23/files/657362b2-dd3c-4a00-a8c4-894b83cd1a7c.

⁸⁷ The NCP recognized that the company had complied with local EIA requirements by conducting necessary studies and obtaining required permits; however, it noted that several environmental impacts had not been analyzed ‘adequately’ in this process and declared the company non-compliant: France NCP, ‘Final Statement: Michelin Group in India’ (2013), paras 19–25, available at: https://www.tresor.economie.gouv.fr/Institutionnel/Niveau3/Pages/8ef77cd0-f703-40c3-b02f-deb7a6d01cb6/files/a1f585e5-27f4-4401-84cc-8440325c65fe.

⁸⁸ Despite acknowledging that the enterprise’s risk assessments and permits had been approved by the federal United States and West Virginia authorities, the NCP held that the company failed to identify certain adverse impacts, highlighting the lack of meaningful stakeholder engagement during the EIA process, stating that the company had not ‘documented an attempt to engage with the local community residing around the facility site, NGOs, interest groups, or other potentially relevant stakeholders, who may have informed Rockwool’s impact assessments’: Denmark NCP, ‘Final Statement: West Virginians for Sustainable Development v. Rockwool’ (2021), pp. 7–9, available at: https://www.oecdwatch.org/download/31764/?tmstv=1689258244.

⁸⁹ While taking into consideration the local EIA conducted for the project, the NCP declared the company non-compliant with the Guidelines I&A expectations for its lack of definition of contingency plans for the release of wastewater: United Kingdom (UK) NCP, ‘Final Statement: AJTZP et al. v. Glencore’ (2024), pp. 11–14, available at: https://www.gov.uk/government/publications/ajtzp-raid-pilc-complaint-to-the-uk-ncp-about-glencore-uk-ltd/final-statement-ajtzp-raid-pilc-complaint-to-the-uk-ncp-about-glencore-uk-ltd.

⁹⁰ While considering the local EIA conducted for the project, the NCP declared the company non-compliant with the Guidelines because it considered it had not provided evidence of the definition of an explicit contingency plan to manage the risks of possible accidents or emergencies: UK NCP, ‘Final Statement: AHN and CBVL v. Victoria Oil & Gas Plc (VOG)’ (2022), pp. 27–31, available at: https://www.gov.uk/government/publications/ahn-and-cbvl-complaint-to-uk-ncp-about-victoria-oil-gas-plc-vog/final-statement-ahn-and-cbvl-complaint-to-the-uk-ncp-about-victoria-oil-gas-plc-vog.

⁹¹ Norway & Sweden NCP, ‘Final Statement: Jijnjevaerie Saami Village v. Statkraft’ (2016), available at: https://www.government.se/contentassets/b08309e008a84c39aa491b0451cea50d/final-statement-jijnjevaerie-saami-village--statkraft-sca-vind-ab-ssvab-norway-and-sweden-oecd-ncp.pdf.

⁹² The NCP determined that enterprises were expected to carry out consultations with a view to obtaining the affected (Indigenous) parties’ free, prior and informed consent, even though this was not strictly required under Swedish law, and accepted that the conduct adopted by Statkraft during the EIA for the project had been compliant with the Guidelines: Norway & Sweden NCPs, ibid., pp. 15–6.

⁹³ This was the case in France NCP, n. 87 above, pp. 9–10, and in UK NCP, n. 89 above, p. 5.

⁹⁴ The NCP noted that the unavailability of certain documents related to the EIA process in local languages led to inadequacies in the company’s communication of its plans to local communities, and that in any case written information provided by the company would need to be supplemented because a significant percentage of the people affected by the mine were illiterate. This led the NCP to declare the company to be in non-compliance with the Guidelines: UK NCP, ‘Final Statement: International Accountability Project and World Development Movement v. GCM Resources’ (2014), paras 40–1, 48–50, available at: https://assets.publishing.service.gov.uk/media/5d8a0062ed915d522df7ae24/bis-14-1217-uk-ncp-final-statement-international-accountability-project-world-development-movement-and-gcm-resources-findings-and-recommendation.pdf.

⁹⁵ The NCP stated that it was apparent that the local population did not feel they were ‘made aware of environmental assessments … made on the site’, because materials had not been ‘provided in an accessible language’ (English instead of French), and because of issues with the consultation with local populations: UK NCP, n. 90 above.

⁹⁶ The NCP noted that the EIA had been submitted to the government of Nigeria, ‘but it did not find information showing that it was disclosed publicly in a timely fashion, or when it was published on the website’. Moreover, the NCP noted the ‘lack of a meaningful response by the enterprise …, which could have included sharing the EIA’: The Netherlands NCP, ‘Final Statement: Aminigboko Community v. Shell Petroleum Development Company of Nigeria Limited and Shell Headquarters’ (2023), p. 12, available at: https://www.oecdguidelines.nl/documents/publication/2023/02/10/final-statement-aminigboko-community-vs.-the-shell-petroleum-development-company-nigeria-of-nigeria-limited-and-shell-headquarters.

⁹⁷ In GCM, the NCP considered the extensive EIAs conducted for the project by the company: UK NCP, n. 94 above, paras 31–3. In VOG, the NCP considered the environmental and social impact assessment (ESIA) reports made by VOG to comply with local Cameroonian law: UK NCP, n. 90 above. In Shell, the NCP highlighted the EIA that had been submitted to the government of Nigeria in Dec. 2018: The Netherlands NCP, n. 96 above, p. 12.

⁹⁸ The NCP highlighted that the conduct and results of new ESIA studies recommended to the company ‘shall be transparent to stakeholders impacted in their living conditions and activities. Health authorities shall also be consulted and informed’: France NCP, n. 86 above, p. 14, Recommendation 2.

⁹⁹ One of the questions that surfaced in this case concerned the disclosure of the EIA studies originally performed by the Perenco group. The company had stated during mediation that ‘they were not in a position to share these impact assessments neither to the NCP nor to the complainants because they would be confidential and would be subjected to the Tunisian Environment Protection Agency under Tunisian law’. The NCP went on to recommend that the company should share information on the results of impact assessment processes with stakeholders (e.g., local and health authorities, surrounding populations): France NCP, n. 85 above, pp. 5, 9, Recommendation 4.

¹⁰⁰ The NCP suggested that the respondent should consider making the ESIA regarding the project available to complainants: Germany NCP, ‘Final Statement: Community Network Concerned for the Kendeng Mountains v. HeidelbergCement’ (2024), p. 9, available at: https://www.bundeswirtschaftsministerium.de/Redaktion/EN/Beschwerdefaelle-NKS/Abschschlussbericht/kendeng-gebirge-gegen-heidelberg-cement-ag-en.pdf?__blob=publicationFile&v=4.

¹⁰¹ Australia NCP, ‘Final Statement: Equitable Cambodia and Inclusive Development International on behalf of 681 Cambodian Families’ (Australia NCP, ANZ (Sugar)) (2018), available at: https://ausncp.gov.au/sites/default/files/2023-01/11_AusNCP_Final_Statement.pdf.

¹⁰² Norway NCP, ‘Final Statement: Lok Shakti Abhiyan et al. v. NBIM’ (2013), available at: https://files.nettsteder.regjeringen.no/wpuploads01/blogs.dir/263/files/2013/12/nbim_final.pdf.

¹⁰³ Germany NCP, ‘Final Statement: Individual v. Nordex’ (2016), available at: https://www.bmwk.de/Redaktion/EN/Beschwerdefaelle-NKS/Abschliessende-Erklaerung/dominic-whiting-against-nordex-se.pdf?__blob=publicationFile&v=1.

¹⁰⁴ The Netherlands NCP, n. 83 above.

¹⁰⁵ Brazil NCP, n. 84 above.

¹⁰⁶ Denmark NCP, ‘Final Statement: Save Teghut Civic Initiative et al. v. EKF’ (2018), available at: https://www.oecdwatch.org/download/29019/?tmstv=1707724881.

¹⁰⁷ See Australia NCP, ANZ (Sugar), n. 101 above, paras 10, 30–1; Norway NCP, n. 102 above, p. 22; Germany NCP, n. 103 above, pp. 2–3; Brazil NCP, n. 84 above, p. 41; The Netherlands NCP, n. 83 above, p. 7; Denmark NCP, n. 106 above, p. 3.

¹⁰⁸ For a detailed discussion of the subject see the debate in J. Ruggie & J. Sherman, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale’ (2017) 28(3) European Journal of International Law, pp. 921–8.

¹⁰⁹ The NCP highlights the I&A of impacts as a central component in the due diligence process, noting that it should take place prior to making an investment, and declared non-compliance with the Guidelines in that it was not clear whether NBIM’s system to assess risk included screening tools to assess the risks of prospective investments: Norway NCP, n. 102 above, pp. 29–36.

¹¹⁰ The NCP declared non-compliance with the Guidelines in noting that, according to its internal policies, the company should have assessed, prior to establishing the relationship with the prospective client, the extent to which the client ‘adopted “internationally accepted industry management practices to manage social, environmental and economic impacts (including effects on human rights, biodiversity, cultural heritage, indigenous rights, health and safety, and governance)”’: Australia NCP, ANZ (Sugar), n. 101 above, pp. 11–2.

¹¹¹ The NCP recommended that the company ‘reviews its protocols for assessing environmental impact studies that guide the competent authorities in granting licensing’: Brazil NCP, n. 84 above, p. 47.

¹¹² The NCP recommended the improvement of the use of leverage, questioning, with the benefit of hindsight, ‘whether sufficient checks were made of the availability of information on environmental and social plans, consultations held and issued licenses’: The Netherlands NCP, n. 83 above, pp. 7–8.

¹¹³ The mediated agreement specifically commits the corporation to review ‘relevant permits and agreements on land-rights’, as well as the ‘assessment of environmental and social impacts’ of projects to which it supplies products. This review would include documents such as the ESIA, EIA, or social impact assessment (SIA) conducted: Germany NCP, n. 103 above, p. 4.

¹¹⁴ Norway NCP, n. 102 above, p. 36.

¹¹⁵ The NCP highlighted that prior to the provision of a financial guarantee, the Danish Export Credit Agency (EKF) had directly contracted with the actor operating the mine to ensure that high standards in relation to impact assessment were adopted in the project, including conditions related to the deployment of an Environmental & Social Action Plan Implementation Plan to be made in accordance with IFC Performance Standards (n. 58 above), the implementation of which was subsequently monitored by EKF in Denmark NCP, n. 106 above, pp. 3–4.

¹¹⁶ Norway NCP, n. 102 above, p. 42.

¹¹⁷ See in-depth discussion and development in Teixeira de Freitas, n. 47 above.

¹¹⁸ Norway NCP, n. 102 above, pp. 30–1.

¹¹⁹ Australia NCP, ‘Final Statement: Complaint by Friends of the Earth, Egan, Dodds and Simons regarding ANZ Group’ (2021), paras 51.2, 70, available at: https://ausncp.gov.au/sites/default/files/2021-12/AusNCP_Final_Statement_Friends_of_Earth_0.pdf.

¹²⁰ The Netherlands NCP, ‘Final Statement: Oxfam Novib et al. v. ING’ (2019), p. 4, available at: https://www.oecdguidelines.nl/documents/2019/04/19/ncp-final-statement-4-ngos-vs-ing.

¹²¹ Teixeira de Freitas, n. 47 above, pp. 990–1.

¹²² For a recent compilation by the OECD of a non-exhaustive list of these international standards see OECD Handbook, n. 53 above, pp. 57–8, Annex B: Non-exhaustive list of tools to identify, assess and manage environmental risks and impacts.

¹²³ N. 58 above.

¹²⁴ See, respectively, UK NCP, n. 94 above, paras 21, 34, 55, 64; Denmark NCP, n. 106 above, pp. 3–6; The Netherlands NCP, n. 83 above, pp. 5–6; UK NCP, n. 89 above.

¹²⁵ See, respectively, UK NCP, n. 90 above; Australia NCP, n. 119 above, paras 21–4.

¹²⁶ See, respectively, Australia NCP, n. 119 above, paras 21–4; The Netherlands NCP, n. 120 above, p. 4.

¹²⁷ However, arguing that there may still be some difficulties for corporations to access information from subsidiaries (considering that such information would be required both for identifying and monitoring adverse impacts), see K.E. Sørensen, ‘Corporate Sustainability Due Diligence in Groups of Companies’ (2022) 19(5) European Company Law, pp. 123–30.

¹²⁸ D. Bertram, ‘Judicializing Environmental Governance? The Case of Transnational Corporate Accountability’ (2022) 22(2) Global Environmental Politics, pp. 117–35.

¹²⁹ Ibid.

¹³⁰ Ibid.

¹³¹ Eller, n. 2 above, p. 152.

¹³² Ibid., p. 144.

¹³³ See in-depth discussion in Krebs, n. 2 above, pp. 289, 302, 320–30.

¹³⁴ See n. 99 above.

¹³⁵ The NCP still took into consideration that the licences had been granted by Swedish authorities because of a national interest in renewable energy production in Norway & Sweden NCP, n. 91 above, p. 10.

¹³⁶ Van’t Foort, n. 15 above, ss. 1.6, 5.

¹³⁷ Svoboda, n. 10 above, pp. 39–40.

¹³⁸ N. 9 above. See Černič, n. 17 above, p. 93.

¹³⁹ These include changes in the Environmental Chapter, such as a clearer enumeration of environmental issues that concern VCDD, as well as procedural changes aimed at promoting functional equivalence between NCPs. For analysis see K.H. Ahn, ‘Main Contents and Implications of the 2023 Revision of the OECD Guidelines for Multinational Enterprises’ (2024) 22(2) Journal of International Logistics and Trade, pp. 80–92.

¹⁴⁰ Černič, n. 17 above, p. 96.

Teixeira de Freitas supplementary material

DOI: https://doi.org/10.1017/S2047102526100302.sm001

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Article contents

Value Chain Due Diligence and the Identification and Assessment of Adverse Environmental Impacts in the Practice of National Contact Points of the OECD

Abstract

Keywords

Information

1. Introduction

2. Context and Background

2.1. The Context of NCPs as Sources of Interpretative Power on VCDD

2.2. The I&A of AEI under the OECD Guidelines and its Relation with EIA

3. Case Selection and Methodology

4. NCP (Soft) Case Law Analysis

4.1. The Rejection of Analysis of I&A Claims

4.2. Mediation and Analysis of I&A Claims

5. Reflection and Avenues for Further Research

6. Conclusion

Supplementary material

Acknowledgements

Funding statement

Competing interests

References

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