Case story

  • United Kingdom

OECD NCP UK - FoE France vs. TotalFinaElf

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Story

On 29 April 2003 Amis de la Terre filed a complaint against TotalFinaElf for its involvement in the construction of a 1,760 kilometre pipeline through Azerbaijan, Georgia and Turkey. The lead company in this consortium is BP.

Specifically, the Complainants argued that the consortium had:

  1. Exerted undue influence on the regulatory framework for the project;

  2. Sought or accepted exemptions related to social, labour, tax and environmental laws;

  3. Failed to operate in a manner contributing to the wider goals of sustainable development;

  4. Failed to adequately consult with project-affected communities on pertinent matters; and,

  5. Undermined the host government’s ability to mitigate serious threats to the environment, human health and safety by, among other actions, negotiating agreements that free the pipeline project from any environmental, public health or other laws that the three host countries might adopt in the future.

The complaint also raised concerns about the consortium’s failure to adequately consult with project-affected communities and failure to operate in a manner contributing to goals of sustainable development.


Outcome

Because the lead company in the BTC consortium, BP, was British, the NCPs in those countries where the Specific Instance was submitted collectively decided in 2004 that the UK would “take the lead” in handling the case. However, despite this understanding, the UK NCP decided unilaterally in 2005 that it would only deal with the UK Complainants. Non-UK Complainants were thus excluded from participating in the UK process except as observers. This decision was apparently not communicated by the UK to the other NCPs until January 2006.

The UK NCP issued a Final Statement on 15 August 2007, some 5 ½ years after the complaint was filed. The result was to dismiss all alleged breaches of the Guidelines.

In July 2007 the UK NCP Steering Board Review Committee published a Review of the UK NCP Final Statement on the BTC pipeline case [1]. In its Review, the Steering Board found, inter alia, that the UK NCP had breached procedural requirements by failing to provide an analysis for its decision that there had been no breaches of the Guidelines.

The Steering Board also urged future caution in dealing with officials that may have been subject to lobbying so as to jeopardise the complaint procedure.

The Review Committee recommended and the Steering Board instructed that:

  • The Final Statement be withdrawn and re-considered in the light of the review;

  • BP be asked to re-consider consent to share the report with the Complainants;

  • In the absence of such consent, the NCP considers to what extent it can rely on the report in reaching its decision;

  • The new Final Statement set out in balanced terms the positions of the two parties, and set out the reasons for the NCP's conclusions on the points it considers are relevant for its decision;

  • Throughout this process, the parties be kept informed of what the NCP expects to achieve;

  • The NCP make clear whether it decides to seek information or comments from the parties, and if so, on what topic and when.

  • The NCP set a realistic but tight timetable for finally concluding this specific instance under the Guidelines, which provide for a way of resolving differences.

The Review Committee reminded the parties that this review process (which it stresses is not an appeal) addresses only procedural aspects of the handling of the Complaint; and not at all its substance. That remains the exclusive function of the NCP. Whether the directions recommended by this review will result in substantive re-appraisal is also for the NCP alone to determine. This is not an invitation to re-open the Complaint generally.


References

OECD Watch case story page: http://oecdwatch.org/cases/Case_162

Contributor(s): This article was modified by Kyle (4), Nicolaclayre (3), and Ejfturnbull (2).