Manual de Procedimiento del Punto Nacional de Contacto Argentino

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Procedures Manual for the Argentine National Contact Point
Title I – National Contact Point
Article 1: THE ARGENTINE NATIONAL CONTACT POINT, hereinafter ANCP,
will act in compliance with this Procedures Manual with respect to any complaint
submitted to it in relation to the OECD Guidelines for Multinational Enterprises
(2011 Update).
The ANCP was created by Ministerial Resolution No. 1567 of 31 July 2006,
within the framework of the OECD Coordination Unit, which reports to the
National Directorate of International Economic Negotiations, which in turn
reports to the Secretariat of Trade and International Economic Relations of the
Argentine Ministry of Foreign Affairs and Worship.
Ministerial Resolution No. 17 of 25 January 2013 abrogated Resolution No.
1567 and established that the ANCP will act within the framework of the
Directorate of Multilateral Economic Affairs and G20, which reports to the
National Directorate of Multilateral Economic Negotiations, which in turn reports
to the Undersecretariat of International Economic Negotiations of the Argentine
Ministry of Foreign Affairs and Worship, in line with the accesion by the
Argentine Republic to the Declaration on International Investment and
Multilateral Enterprises of the Organization for Economic Co-operation and
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Development (OECD) which includes the Guidelines for Multinational
Enterprises.
Pursuant to the provisions of Resolution No. 17, the functions of the National
Contact Point are “to promote the application of the Guidelines for Multinational
Enterprises of the Organization for Economic Co-operation and Development
(OECD) and to contribute to the resolution of issues related to their
implementation ".
Article 2: The ANCP may consult with agencies of the Federal State as needed
in relation to issues discussed at the “Specific Instance”. In that respect,
consultations will be held taking into account the competence and technical
contributions of the public agencies and will be aimed at obtaining advice from
the competent authorities in relation to the matters discussed at the specific
instance. Through the relevant notice, the ANCP will request the competent
agency to keep all information submitted confidential.
Article 3: The ANCP may also contact the various areas, agencies or entities of
the Federal State within the framework of its activities to promote and
disseminate the Guidelines pursuant to the annual Work Plan prepared by the
ANCP.
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Title II – Initiation of the specific instance proceedings in relation to
complaints for non-compliance with the Guidelines.
Section I
Submission of Complaints for Non-Compliance
Article 4: The ANCP will be the authority in charge of receiving complaints
concerning failure to comply with the OECD Guidelines for Multinational
Enterprises.
Article 5: Any natural or artificial person who deems that the actions or
omissions of a Multinational Enterprise could constitute a violation of the OECD
Guidelines for Multinational Enterprises (2011 Update) may submit a claim for
non-compliance or “complaint” to the ANCP, for which purpose it will have to
meet the following requirements:
a) Complaints will be submitted in writing, in the Spanish language, and all
pages must be signed. In the case of artificial persons, the legal
personality and representation of the complainant must be duly certified
by a civil law notary. Complaints will include, for the purpose of the
proceedings, a legal domicile (notwithstanding any reference to the place
of residence), an identity document number, a landline telephone
number, a cell phone number and an e-mail, for the purpose of properly
identifying the complainant and giving any relevant formal or informal
notice. Complaints will also specify a name, domicile in Argentina, name
of representative in Argentina, phone and fax number and e-mail.
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b) Complaints will contain a detailed description of the conduct violating the
OECD Guidelines for Multinational Enterprises (2011 Update). Should
there be any documents supporting the complaint filed, they will be
included as annexes. All the pages making up the complaint for noncompliance must be numbered and signed by the natural person or by
the owner or representative of the artificial person filing the complaint,
who must present a special power of attorney.
c) Complaints will indicate in what way the alleged non-compliance with the
Guidelines affects or may affect the complainant or the person(s)
represented by the complainant.
d) Complaints will specify in as much detail as possible the provisions of the
OECD Guidelines for Multinational Enterprises (2011 Update) that have
been or are being violated by the action or omission of a multinational
enterprise based in Argentina.
e) Complaints will describe in detail the remedy sought from the ANCP as a
result of the alleged violations, taking into account the fact that
participation by the Enterprise in the proceedings is voluntary, as well as
the role as facilitator of mutually satisfactory solutions characteristic of
the “Good Offices” of the ANCP.
f) Complaints will contain sufficient evidence of the negotiations previously
held with the Multinational Enterprise in order to reach an agreement and
the outcome of such negotiations that justify the attempt to seek an
understanding within the framework of the ANCP, which provides
international exposure.
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g) Complaints will specify which materials must be considered confidential,
in accordance with Article 11.
h) Complaints for non-compliance must be addressed to the Argentine
National Contact Point (ANCP) of the OECD Guidelines for Multinational
Enterprises of the Ministry of Foreign Affairs and Worship and must be
delivered at the Front Desk of that Ministry, located at Esmeralda 1212,
Ground Floor, (1007) Autonomous City of Buenos Aires, Argentine
Republic
Article 6: Complaints for non-compliance will not be accepted in the following
cases:
a) If they fail to meet the requirements or provide the information specified
in Article 5 above.
b) If the information provided and the available elements do not show a
clear connection between the facts described and the principles and
provisions contained in the Guidelines.
c) If they refer to an issue on which the ANCP has already issued a
decision.
d) If the issue giving rise to the complaint has already been submitted to the
courts and a final decision has been rendered.
Article 7: Upon receipt of a complaint, the ANCP will conduct a preliminary
analysis of admissibility in order to verify whether such complaint meets the
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requirements set forth in Article 6 and will determine the scope and results of
the claims submitted by the complainants to the enterprise before filing their
complaint with the ANCP.
If the requirements established in this procedures manual are fulfilled, the
ANCP will open an administrative file that will be named after the content of the
complaint.
The ANCP may request clarifications or more information to the complainant in
order to determine whether the complaint is admissible or should be rejected in
full or in part.
Furthermore, the ANCP may call a meeting with one or both of the parties
concerned with a view to gathering more information on the nature and scope of
the complaint and, particularly, to better decide on its “Formal Admissibility”.
Section II
Dismissal and Admissibility of the Complaint
Article 8: No later than three (3) months after receipt by the ANCP of a
complaint for non-compliance and on the basis of the available information and
background data, the ANCP will either:
a) Dismiss the complaint, where it does no meet the requirements set in
Article 5 or where any of the situations provided for in Article 6 applies. In
this case, the ANCP will formally notify the complainants and, at its
discretion, the Enterprise, of its decision not to commence the Good
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Offices Proceedings, specifying the formal reasons for such decision.
The decision to dismiss the complaint does not exclude the possibility
that a new complaint for non-compliance may be submitted by the same
complainant against the same multinational enterprise if the complainant
provides new information or new documents or if the new complaint has
different content than the previous complaint.
b) Declare the Formal Admissibility of the complaint. Where the facts
described and the information provided by the complainant show the
purported or possible breach of the OECD Guidelines, the ANCP will
declare the complaint formally admissible. This Decision will be
sufficiently notified by the ANCP to the complainants and respondents
within ninety (90) days counted as from the date on which the ANCP
issued the decision.
The file relating to the specific instance will be “confidential” and the
parties may request, in writing and stating the reasons for such request,
a copy of any part they may wish to consult.
Article 9: Once the Formal Admissibility of the complaint has been declared,
the ANCP may notify so to the Federal State agency or agencies, depending on
the matters involved in the “Specific Instance”. In such case, it may briefly refer
to the main aspects of the complaint, specifying the parties involved, the
complainant and the respondent. In the relevant notice, the ANCP will request
the competent authority to keep the information provided confidential.
Title III. Procedures of the Specific Instance
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Article 10: Once the Formal Admissibility of the complaint is declared, the NCP
will notify this to the enterprise against which the complaint was brought, in
accordance with Article 8 (b). No amendments to the complaint filed will be
admitted after its “Formal Admissibility” has been declared.
Article 11: Once the Formal Admissibility of the complaint is declared, the
ANCP will be responsible for:
a) Guaranteeing the independence and neutrality of the process.
b) Ensuring that the parties concerned have access to the information relating
to the complaint and the procedure to be followed at the Specific Instances that
are part of the Procedures Manual.
c) Respecting the individuality of the cases.
d) Taking any measures necessary to protect any sensitive trade information
provided as a result of the proceedings.
e) Ensuring, to the extent possible, that the parties communicate with each
other on good terms.
f) Meeting and enforcing the deadlines set.
g)
Observing
and
enforcing
the
Confidentiality
principle
from
the
commencement of the specific instance to the conclusion of the case.
Throughout the proceedings, all information, the identity of the parties and the
opinions expressed by them during the procedures will be kept confidential,
unless both parties consent to their disclosure, notwithstanding the powers of
the ANCP in submitting its report to the OECD Investment Committee.
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Article 12: Once “Formal Admissibility” of the complaint is declared, the ANCP
will call the enterprise to a meeting at the offices of the Ministry of Foreign
Affairs to introduce the complaint and notify the commencement of the specific
instance. At the meeting, the enterprise will be given a copy of the “formal
admissibility” of the complaint and will be offered the “Good Offices” of the
ANCP in order to settle (if possible by mutual agreement) the issue or issues
referred to in the “complaint”.
The enterprise will have the opportunity to defend itself from the allegations of
non-compliance with the Guidelines contained in the compliant which were
admitted by the ANCP at the beginning of the proceedings.
In view of the non-binding nature of the specific instance, the enterprise will be
required to sufficiently notify in writing to the ANCP of its acceptance or
rejection, within the following three (3) months, in accordance with the
provisions of Article 17.
Article 13: Both the enterprise and the complainants may request one or more
meetings with the ANCP in order to provide further information on the conduct
of the specific instance. Likewise the parties may be summoned by the ANCP in
order to gather additional information without it changing the merits of the
complaint already admitted by the ANCP.
Article 14: The ANCP will declare the instance finished if, during the course of
the proceedings, either party and/or a third party resorts to a court in order to
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obtain a judgment on the same facts that gave rise to the proceedings before
the ANCP.
Article 15: The ANCP will provide the complainant with a copy of all the
information submitted by the enterprise and vice versa, and the parties will
always be allowed to answer to any submissions, provided that this does not
entail an excessive delay in the conduct of the specific instance.
In the event that new events take place during the course of the specific
instance, the ANCP will ask the parties whether they substantially change the
initial complaint. If that were the case, the ANCP, upon notifying the parties,
may terminate the proceedings or continue to conduct them after increasing
their scope.
Article 16: The ANCP will attempt to conclude the proceedings within the
twelve-(12)-month period after the specific instance has been referred to it.
However, in the event that there are circumstances that escape the control of
the ANCP or that are not provided for, the term may be extended for a
reasonable period, which may not exceed twenty-four (24) months, as the
maximum term for the specific instance, counted as from the moment when the
specific instance is referred.
Any subsequent extension —jointly requested by the parties— must be
consented to by the ANCP.
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Article 17: The ANCP will take any steps deemed necessary in order to have
the enterprise accept its Good Offices offer and agree to engage in dialogue
with the complainant, either before the ANCP or not. If, in spite of the steps
taken by the ANCP and after three (3) months have elapsed since the “Formal
Admission” of the complaint, the Enterprise does not accept the Good Offices
offered by the ANCP, such body will conclude the specific instance and issue a
communiqué, which will be signed by the ANCP and notified, if appropriate, to
the competent national agency.
Article 18: In order to meet the deadlines established for the conduct of the
specific instance, the ANCP will attempt to take all the steps incumbent upon it
as soon as possible. The parties will be required to duly provide the necessary
information to meet the deadlines for the resolution of the specific instance.
Failure by the parties involved to comply with or respond to the requests made
by the ANCP will not prevent the latter from issuing a decision on the basis of
the information available.
Article 19: The ANCP will explain to the parties that compliance with the
agreements reached by them within the context of the ANCP’s Good Offices will
depend upon them as the ANCP will not monitor such agreements or guarantee
fulfilment of the obligations arising therefrom.
Article 20: Any final agreement between the parties must be duly informed to
the ANCP.
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Furthermore, provided that there is full agreement between the parties and the
ANCP gives its consent, the parties may disclose issues relating to the
proceedings concluded.
Article 21: The ANCP will disclose the final outcome of the specific instance —
taking into account the need to protect information deemed sensitive— through
a Communiqué or a Report, as the case may be, which will meet the following
requirements:
1) Communiqué: where the specific instance is closed pursuant to
Article 17. The Communiqué may specify the parties involved
(complainant and enterprise against which the complaint was
filed), a description of the issues raised in the complaint and a list
of the procedures followed by the ANCP and the reasons why the
case was closed, taking into consideration the need to protect the
confidentiality of sensitive information.
2) Report: where the parties reach an agreement. The Report may
specify the parties involved (complainant and enterprise against
which the complaint was filed), a description of the issues raised
in the complaint and a list of the procedures followed by the ANCP
in the Good Offices proceedings in order to help the parties reach
an agreement. The Report may include the text of the Agreement
arrived at by the Parties provided that it has been sufficiently
notified to the ANCP.
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The ANCP will be required to issue its Communiqué or Report within three (3)
months after the end of the proceedings.
In its Communiqué, the ANCP may make recommendations in order to preserve
the good practices established by the Guidelines, as well as any observations
deemed appropriate with a view to perfecting the system.
The Communiqué and the Report will be available to the public, except as
regards any confidential information, and will be included in the annual report
submitted by the ANCP to the OECD Investment Committee.