Claimants relying on soft law frameworks to air climate-related complaints

Beyond the court setting, a notable development has been the increasing use of the OECD National Contact Point (NCP) complaints process.

NCPs are national institutions set up by individual countries pursuant to the OECD Guidelines for Multinational Enterprises, and which facilitate non-judicial dispute resolution processes.

Although NCPs are not new — the Australian National Contact Point (ANCP) received its first complaint in 2005 — the use of NCPs as an avenue to voice climate-related complaints is novel and significant.

NCPs represent a low-cost avenue for agitating complaints, and their increasing use demonstrates the creativity of complainants in finding suitable forums for climate-related cases. A case in point is the complaint that was lodged against a national bank in the ANCP. Environmental group Friends of the Earth Australia, along with a group of bushfire survivors, claims that the bank breached the OECD Guidelines by failing to prevent or mitigate the adverse environmental impacts of its investments in coal and fossil fuel projects. The complaint also alleged that the bank was failing to adhere to the Paris Agreement reduction targets across its lending portfolio.

This sits within a wider global context, including a complaint brought by Friends of the Earth Netherlands against ING bank before the Dutch NCP. That complaint led to ING committing to measuring and disclosing its indirect carbon emissions and to move its lending portfolio towards one that supports the Paris Agreement’s ‘well-below’ two degrees goal. ING also committed to reduce its thermal coal exposure to close-to-zero by 2025, and to not finance any new coal-fired power plants. The outcomes in these cases illustrate the practical potential of the NCP process.