- The purpose of this paper is to provide guidance to complainants and companies on how the Australian National Contact Point (AusNCP) intends to handle the issue of parallel legal proceedings within the OECD Guidelines complaints process.
- The AusNCP considers parallel proceedings to be court or similar proceedings in progress at the same time as a Specific Instance, which addresses the same or closely related allegations. Such proceedings can be either criminal or civil in nature and can take place under the jurisdiction of the host country, another country or an international court or tribunal.
- The AusNCP adopts the following principles in respect of the impact of parallel proceedings:
3.1. The fact that parallel proceedings exist will not of itself cause a suspension of its process and/or its determination of any dispute;
3.2. The AusNCP will suspend a complaint only where it is satisfied that it is necessary in order to avoid serious prejudice to a party to parallel proceedings and is appropriate in all the circumstances.
- Before suspending a complaint, the AusNCP will expect the parties to give serious consideration to the benefits of conciliation/mediation which can lead to a quicker and more cost effective solution to the issues raised.
What this means to the published complaints procedure
- The AusNCP may accept a complaint under its published procedures, when appropriate, even if it has notice that parallel legal proceedings are underway. The initial assessment will include reference to any parallel proceedings of which the AusNCP is aware.
- A party to a complaint may request a suspension at any stage of the complaints process on the grounds that continuation of the process may cause serious prejudice to a party to parallel proceedings.
- Before considering a request the AusNCP will ask the party making the request to provide evidence of the parallel proceedings. This should include court or other documentation wherever possible. The party requesting the suspension will also need to show that continuation of the AusNCP process will seriously prejudice one of the parties to the parallel proceedings. The information provided will be copied to the other party save in exceptional circumstances and upon a request by the applicant that the information should not be shared.
- On receipt of the information, the AusNCP may form a view on the following:
8.1. Would continuation of the complaints process be likely to cause serious prejudice to one of the parties to the parallel proceedings?
8.2. If so, it is appropriate in all the circumstances that the process be suspended in part or in its entirety
- The AusNCP will consider whether there is a likelihood of serious prejudice on a case-by-case basis. The following are examples of situations in which serious prejudice could arise:
9.1. A finding by the AusNCP on a specific instance may be accepted by a foreign court as a deciding factor in an important issue before it.
9.2. A company director is subject to criminal legal proceedings in a country, the judicial system of which includes a right to silence. The same company is also the subject of a complaint to the AusNCP covering closely related issues. The company is asked by the AusNCP to provide information which is material to the complaint under the Guidelines but which could result in prejudice against the individual in the court case if made public, for example in the Final Statement.
- If the AusNCP assesses that serious prejudice may occur by continuing with the Specific Instance process it may suspend the AusNCP action and inform the parties of this decision.
- Once the parallel proceedings have concluded, the AusNCP will decide whether there is any merit in continuing with an examination of the complaint. By way of example, there may be merit in doing so in circumstances where the Guidelines set a higher standard than the laws applied by the court or tribunal.
- Where a complaint has been suspended, the AusNCP will ask parties to the complaint to provide an update on the status of the parallel proceedings at least every 6 months.
- The AusNCP will apply this guidance to all current Specific Instances and to all future complaints which it receives.