Confronting challenges to substantive remedy for victims : Opportunities for OECD NCPs under a due diligence regime involving civil liability

This article examines the under-researched, inter-connected issues of substantive remedy and a role for OECD National Contact Points (NCPs), arguing that NCPs have important potential to complement judicial remedy institutions or administrative supervision. The EU’s corporate sustainability due diligence directive (CSDDD) proposal serves as a cue for the analysis. The CSDDD's silence on NCPs calls for considering what role NCPs can play under a regime involving civil liability for companies in home-state jurisdictions. However, the issue is relevant for any OECD member or Guidelines adherent considering national legislation to advance remedy for host-state victims in the face of inadequate due diligence by companies domiciled in the legislating state. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared to UNGP listings. The article shows that combining access to NCPs and judicial remedy may offer important opportunities to address such challenges for victims’ access to substantive remedy. It argues that NCPs can also perform certain administrative supervision tasks and in that role may also support victims who chose a judicial remedy avenue. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. Presenting proposals for NCP tasks to assist victims obtain substantive remedy, the article observes that strong NCPs are particularly well suited to help victims obtain substantive remedy, and that national implementation may prompt states to award NCPs statutory basis, which could help address recognized NCP weaknesses with less strong NCPs