SWITZERLAND Trends and Developments Contributed by: Liburn Mehmetaj, Roxane Allot and Andreas Hösli, Walder Wyss Ltd
Special nature of proceedings before NCPs In many respects, NCP proceedings are sub - stantially different from traditional proceed - ings before state courts or arbitral tribunals. Therefore, navigating safely through a Specific Instance requires special expertise: • Publicity: Participation in NCP procedures is entirely voluntary for the MNE(s) involved. NCPs do not have the authority to impose remedies. Nevertheless, the publicity of NCP procedures can have a significant impact. While sensitive information must be kept confidential by the NCP, the identity of the parties and a summary of the case, includ - ing a summary of the parties’ arguments, are published on the website of the Swiss NCP. Moreover, irrespective of the outcome of a Specific Instance, NCPs may publish recom - mendations to a company involved concern - ing the observance of the Guidelines. • Differences Between NCPs: In the absence of an appeals body, NCPs have developed dif - ferent interpretations of several points in the Guidelines. For example, the answer to the key question of what constitutes a relevant business relationship can differ from one NCP to another. • Resources and Timeline: Specific Instances are commonly resource-intensive and time- critical. NCPs do not have the capacity (nor the authority) to conduct their own fact- finding investigations. For the MNE involved, this usually requires an extensive fact-finding exercise, which may entail liaising with sever - al internal stakeholders across business units. As a rule, NCPs are expected to conclude their procedure within 12 months of receiving of a submission. However, this period may be extended if warranted by the circumstances. • Special Know-How: Situated at the intersec - tion of public international law and corporate
responsibility, advising on NCP proceed - ings requires in-depth knowledge of the Guidelines and a deep understanding of how international responsible business conduct standards function. It also requires familiarity with current transnational regulatory develop - ments (for instance, emerging due diligence regimes). • Strategy: NCP procedures call for a tailored strategic approach, which is generally more collaborative than in a court setting and based on a thorough understanding of the Guidelines. Key cases in Switzerland The Swiss NCP handled its first case in 2007. Since then, the Swiss NCP has registered over 30 cases. Commonly, Specific Instances against Swiss-based MNEs are filed by NGOs. Three key cases are summarised below for illustrative pur - poses. Society for Threatened People Switzerland / BKW Group (2020) • At issue: The submitting party alleged that the company conducted insufficient human rights due diligence in a large onshore wind power project in Norway, while disregarding the possible adverse impacts on local indigenous people. • Outcome: Agreement between the parties. The company agreed to undertake cer - tain due diligence measures by revising its code of conduct, taking the Guidelines into account and specifically by integrating its commitment to respect human rights and vulnerable groups in its business operations. Global Legal Action Network / Glencore (2021) • At issue: The submitting parties alleged that three multinational enterprises, including the Swiss commodity company, violated the
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