From Conciliation to Quasi-Adjudication : Quantifying the Judicialization of OECD Dispute Resolution between Global Businesses and Local Stakeholders

In recent years, the National Contact Points (NCP's) of several member states to the Organization for Economic Co-operation and Development (OECD) have taken an increasingly quasi-judicial approach to its facilitation of cross-border disputes between global companies and their stakeholders. These NCP's move gradually towards depicting the OECD Guidelines for Multinational Enterprises not as voluntary recommendations but as duties and obligations; portray their own role not as a mere facilitator of constructive conversations but rather a referee on the merits of the claim; and present their conclusions not as an account as a court order of sorts. This paper analyzes quantitatively the language of NCP-statements worldwide between 2000 and 2019, and, first, map the degree and the pace in which the aforementioned judicialization is taking place and, second, assess which factors may explain the divergent approaches by NCP's from different jurisdictions. It focuses on the 262 English-language statements of NCPs from 26 member states. This study will test the significance of a variety of invariable datapoints such as the industry sector, type of dispute, and kind of stakeholder who filed the complaint. The paper finds that the different decision-making structures of NCP's plays a significant role in the judicialization of NCP dispute resolution, indicating that the NCP takes a more judicial approach when the members of the NCP panel consists of outside experts rather than government officials, possibly because the latter are more cautious to suggest a government regulatory function than outside experts who may deem soft law principles as norms that constrain business activities. Moreover, NCP's in different countries appear to have a different understanding of the the nature and function depending on the local political philosophy or legal culture as to the desired degree and kind of state regulation of the private sector