final declaration - gov.br

National Contact Point for the OECD Guidelines

for Multinational Enterprises

FINAL DECLARATION

Complainants:

• Association Forum Suape Environmental Space

• Conectas Human Rights

• Fishermen’s Colony Z8 – Gaibu

• Both ENDS

Respondents:

• Van Oord Marine Ingenuity

• Atradius Dutch State Business

• Industrial Port Complex Eraldo Gueiros – Suape Enterprise, Pernambuco

June 5, 2020

PONTO DE CONTATO NACIONAL

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1. EXECUTIVE SUMMARY ...........................................................................................................................4

2. STAKEHOLDERS ......................................................................................................................................6

3. PROCEDURE BACKGROUND ..................................................................................................................6

4. INITIAL ASSESSMENT .............................................................................................................................9

4.1. General description of the situation .............................................................................................9

4.2. Relevant Guidelines .................................................................................................................... 11

4.2.1. Chapter II – General Policies .............................................................................................. 11

4.2.2. Chapter III – Disclosure ....................................................................................................... 12

4.2.3. Chapter IV – Human Rights ................................................................................................ 13

4.2.4. Chapter VI – Environment .................................................................................................. 14

4.3. Compensation ............................................................................................................................ 15

5. COUNTER-CLAIMS .............................................................................................................................. 17

5.1. Context ....................................................................................................................................... 17

5.2. General Notification Shortcomings ............................................................................................ 17

5.3. Specific responses to the alleged violated guidelines ................................................................ 18

5.3.1. Chapter II – General Policies .............................................................................................. 18

5.3.2. Chapter III – Disclosure ....................................................................................................... 20

5.3.3. Chapter IV – Human Rights ................................................................................................ 20

5.3.4. Chapter VI – Environment .................................................................................................. 21

6. RESPONSE TO THE COUNTER-CLAIMS ................................................................................................ 22

7. COMMENTS ON THE PRELIMINARY VERSION .................................................................................... 23

8. REJOINDER OF THE RESPONDENT TO THE COMPLAINANT’S COMMENTS ........................................ 26

9. MEDIATION ......................................................................................................................................... 28

9.1. First Session - NCP ...................................................................................................................... 28

9.2. Second Session – NCP ................................................................................................................. 29

9.3. First Private Mediation Session .................................................................................................. 29

9.4. Second Private Mediation Session ............................................................................................. 30

9.5. Third Private Mediation Session ................................................................................................. 31

10. CONCLUSION .................................................................................................................................. 31

10.1. Limits of the Mandate of the National Contact Point ............................................................ 32

10.2. Admissibility of new documents ............................................................................................ 35

10.3. Probative effectiveness of new documents ........................................................................... 38


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10.4. Due diligence and power to influence the results ................................................................. 41

10.5. Results of Public Civil Action nº 0005552-13.2011.4.05.8300 ............................................... 42

10.6. Final Remarks ......................................................................................................................... 45

11. RECOMMENDATIONS ..................................................................................................................... 46

ANNEX I - Timetable of the case with the NCP Brazil: ................................................................................ 49

ANNEX II - Information on the Stakeholders .............................................................................................. 50


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1. EXECUTIVE SUMMARY

1. The Final Statement sets forth the conclusions of the analyses by the National Contact

Point of Brazil (NCP) of the OCDE Guidelines for Multinational Enterprises (Guidelines) in relation

to the allegations presented on June 8, 2015 by the Association Suape Environmental Space

(Suape Forum), Conectas Human Rights, Fishermen’s Colony Z8 – Gaibu and Both ENDS, to the

detriment of Van Oord Maritime Operations Services Ltda (Van Oord), Atradius Dutch State

Business (Atradius DSB) and Industrial Port Complex Eraldo Gueiros – Suape Enterprise,

Pernambuco (Port of Suape).

2. The complaint addresses the conduct of the alleged parties that supposedly violated the

OECD Guidelines concerning Chapter II (General Policies), Chapter III (Disclosure), Chapter IV

(Human Rights) and Chapter VI (Environment). In general, the complainants add that the

dredging works to deepen the port channel and the installation of a new shipyard in 2012 ended

up harming traditional fishing communities in view of the environmental degradation and

procedures for relocating the inhabitants of the region.

3. Initially, the coordination of the NCP- Brazil was inclined towards the understanding that

the allegation had no specific focus, failing to determine the participation of each of those alleged

in the damages caused to the community. Another difficulty pointed out in the preliminary

admissibility report was the failure to meet the requirement of a multinational company in

relation to the Port of Suape, which prevented the action of the NCP-Brazil. Additionally, the

coordination considered that the allegation referred to facts that occurred more than twelve

months ago, which violated Art. 3rd, I, of NCP Resolution nº 1/2016. Even in the face of these

impediments, the case was admitted due to the interest expressed by the Van Oord company in

the benefits of the good offices to be rendered by NCP-Brazil. The company’s intention would be

to reverse the negative perception of the alleging parties and the communities located in the

Suape region. Although it agreed with the continuity of the procedure, the alleged party pointed

out that the act did not amount to the recognition that its activity in the port had violated any of

the OECD Guidelines.

4. During 2015, two mediation sessions were held by the NCP-Brazil, but without practical

results. In view of the difficulty of bringing the affected parties and the Port of Suape to dialogue

in Brasilia, it was decided that new sessions would be held in Gaibu, State of Pernambuco. This

would be the place where fishermen affected by the changes caused by the operation of the port

are concentrated. Between 2017 and 2019, three meetings were held by a private mediator,

resulting in some agreements, the execution of which still depends on the collaborative action of

the parties. In none of the sessions was it possible for the Port of Suape to sit at the table to

discuss the implementation of any action agreed between the parties.

5. In the second half of 2019, it was signalled to the NCP that the right moment for the

closing of the case had arrived. Shortly thereafter, the Van Oord company submitted its counter-


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allegations to the complaint filed in June 2015. About two months later, the complainants

submitted their reply.

6. After careful consideration of the documents brought by all parties and the participation,

as an observer, of a representative of the Executive Secretariat of NCP-Brazil in the third private

mediation session held in Gaibu, it is clear there are still conflicts not overcome by the parties.

Regarding those disputes the NCP-Brazil has not competence to arbitrate. However, there were

some positive results of the negotiation effort based on actions agreed between the parties and

which are under development. The recommendations issued in this final declaration are based

on the expectation that Van Oord will use its power of influence to raise awareness of the Port

of Suape on issues that only the port authority can act on.

7. All the documentation that supports the analysis of this case was added to the Electronic

Information System of the Ministry of Economy, Procedure SEI nº 19971.100417/2019-31.

8. This Declaration follows the NCP Resolution nº 1/2016, of November 16, 2016, which

provides on the procedures of the National Contact Point and the Guiding Principles on Specific

Instances, Part II of the text of the Guidelines.

9. This Declaration has two annexes. Annex I contains a chronological summary of the

progress of the case with NCP Brazil. Annex II contains information on the contacts of the parties

involved.

10. Finally, the NCP Brazil submitted a preliminary version of the Final Statement to the

Parties so that, between December 22, 2019 and January 13, 2020, we would receive comments

on its content. Subsequently, at the request of the complainant, this period was extended until

January 24, 2020. There were contributions from both parties, and new documents were

submitted by the plaintiffs.

11. Given the new set of documents, the NCP provided a new deadline for the alleged present

their considerations, which was done on April 15, 2020.

12. On May 18, 2020, the text of the final declaration was submitted to the Interministerial

Working Group of the National Contact Point. No dissent was registered by any of the members

which lead to the approval of the document.

13. This Final Statement is available on the NCP Brazil website at www.pcn.economia.gov.br.

http://www.pcn.economia.gov.br/


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2. STAKEHOLDERS

The Complainants

Forum Suape is a non-profit non-governmental organization (NGO) operating in the municipality

of Cabo de Santo Agostinho, Pernambuco (PE). Conectas Human Rights is an international, non

profit NGO that aims to promote the realization of human rights and the democratic rule of law

in the Global South (Africa, Asia and Latin America). Fishermen’s Colony Z8 is a non-profit civil

association representing professional and artisanal fishermen in the municipality of Cabo de

Santo Agostinho-PE. Both ENDS is a Dutch independent and non-governmental organization that

works towards a sustainable future for our planet, identifying and strengthening civil society

organizations, particularly in the countries of the Global South.

The Respondents

Van Oord Company is a private transnational corporation, headquartered in Rotterdam, the

Netherlands. Atradius DSB is the official export credit agency of the Dutch Government,

responsible for offering credit insurance for exportation of goods and services provided by Dutch

companies. Suape is a state enterprise owned partially by the State of Pernambuco, which

manages the Eraldo Gueiros Industrial Port Complex.

3. PROCEDURE BACKGROUND

On June 8, 2015, NCP Brazil received a Specific Instance based on the OECD Guidelines

for Multinational Enterprises, presented by Forum Suape, Conectas Human Rights, Fishermen’s

Colony Z8 and Both ENDS, hereinafter referred to as Complainants, to the detriment of Van Oord

Maritime Operations Services Ltda. (Van Oord), Atradius Dutch State Business (Atradius DSB) and

Eraldo Gueiros Port Industrial Complex – Suape, Pernambuco (Suape Port). The content of the

complaint was recorded in two instruments (SEI nº 4346128 and nº 4346598). In order to

properly structure this statement, the content of the initial complaint is reported in topic 4 of

this report.

In July 2015, two previous versions of what would be an admissibility report (SEI nº

4347964 and nº 4348036) were produced. In its content, it was considered that only Van Oord

was categorized as a multinational enterprise, excluding both Atradius DSB and the Port of Suape

(p.1). It should be noted, however, that the Dutch NCP considered Atradius DSB as a

multinational, delivering a final statement in relation to that enterprise (Process SEI nº 4839513).

The analysis carried out at the time by NCP Brazil also found that the complaint “does not contain

a sufficiently defined focus and does not present a list of support documents that can be verified

by objective criteria by the NCP” (p.2). Bearing in mind that the only company admitted in the

admissibility report was only part of the construction process of the port complex, it should be


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defined precisely “the role of the Respondent and in which period its participation was conducted

to an extent contrary to the Guidelines”. It was observed that Van Oord had a limited insertion

in the project implementation, not participating, meanwhile, in the environmental licensing

process and in the consultations under the responsibility of Suape.

In terms of statutes of limitation, the report found that the allegation was based on facts

that had occurred and were known more than twelve months before the filing of the petition,

which should prevent the continuity of the procedure, due to the provisions of NCP Resolution

nº 1/2016. At the time, the NCP also considered that other bodies such as the State Public

Prosecutor’s Office (MPE), the state environmental agency and the local police acted in 2013 to

seek the responsibility of Suape, being instances with “fact-finding capacity far superior to the

NCP”(SEI nº 4347964 and nº 4348036).

In view of the reasons explained above, the NCP expressed its intention to reject the

allegation. In addition, the NCP also notified the Federal Comptroller General (Process SEI nº

4348126) and the National Human Rights Commission of the Chamber of Representatives (SEI nº

4348952) to promote further investigation on the suspected irregularities listed by the

complainants.

Still in July 2015, additional information (SEI nº 4348602) was sent by e-mail to the

coordination of the NCP by Forum Suape, one of the petitioners. In the document, the guidelines

considered violated were replicated. In addition, it expressed concern with the interpretation

that the initial milestone for counting the twelve months period provided for in NCP Resolution

nº 1/2016 could be counted from the complaints made to the local authorities throughout 2013.

In its view, the “triggering event” that identifies the violation of the guidelines could not be

compartmentalized in a specific and isolated action, since the effects of the activity are felt in

extended periods, mainly with regard to negative impacts on the ecosystem and on the set of

affected human rights. The continuity of the effects that are harming the local population and

the environment should be considered in order to adequate the counting of the deadline set in

regulation.

Be that as it may, a dialogue with the Dutch NCP (SEI nº 4349037 and nº 4815776)

revealed the Van Oord’s will to participate in the mediation procedure to be conducted by this

NCP. Bearing in mind that the content of the allegation presented a very negative context, the

company hoped that the good offices of the Brazilian authority would be beneficial for adjusting

the perspective and possible implementation of solutions that would remedy the situation

described by the complainants. In view of this information, the draft admissibility report was

modified to exceptionally accept the specific instance (SEI nº 4348724, nº 4817605 and nº

4817639) in August 2015.

Soon after the specific instance was accepted, Van Oord submitted a document (SEI nº

4818044) to the NCP for consideration in which it clarified its participation in the works related

to the Suape Port Complex. According to the text, the company’s regular procedure requires the


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presentation of installation licenses by the project owner before the dredging activities begin.

When examining the licensing, it realized that the studies that supported it had high technical

quality, with nothing to repair. During the project implementation, the company would have

followed all the requirements stipulated in the license and the complainants would not have

pointed out flaws in its compliance. Furthermore, according to Van Oord, its intervention would

have met more demanding requirements than those provided for in the license, by using

additional measures to mitigate environmental impacts and participation in informative events

aimed at explaining the methods adopted.

After receiving Van Oord response, the NCP organized two mediation sessions during

the second half of 2015. Both are reported in topic 9 of this report. At the end of these activities,

it was decided to close the case. According with the two drafts of final statement produced (SEI

nº 4836097 and nº 4836730), the role of the NCP would be exhausted as a dialogue channel was

open between the parties to deal with issues of repair or remediation. In addition, there was a

prevailing understanding among the parties that the involvement of Suape was necessary for the

conclusion of an agreement. In this light, the NCP considered that it could not act either, since

the port is not a multinational enterprise since it has no subsidiaries abroad. Disagreeing with the

NCP’s decision to close the case, the complainants sent correspondence dated March 28, 2016

(SEI nº 4837064) requesting the continuity of the procedure. In the face of statements by the

parties, including Van Oord, the decision to close the case was reconsidered, in order to make

the dialogue reach the Port of Suape (SEI nº 4839147).

In view of this new stance, representatives of the port complex were approached to

attend a meeting in November 2016, but they offered only thirty minutes of their time, showing

low engagement with the possibility of mediation. Thus, the meeting was cancelled without any

rescheduling throughout 2017. In February 2018, another draft of the final statement was drawn

up, in order to close and file the case (SEI nº 4842067).

The alleging parties contributed to the report in December 2018 (SEI n° 4862640),

pointing out omissions that should be filled in by the NCP. The preliminary version did not address

the private mediation efforts already undertaken by the parties. Two sessions had already been

held in Gaibu, located in the Suape region, on the dates of November 12, 2017 (SEI nº 4841644)

and March 28, 2018 (SEI nº 4842378). This procedure conducted in parallel by the parties

motivated a request to suspend the processing of the specific instance. By following this path,

the parties would have time to seek results with the support of a consensually chosen mediator.

From this perspective, it was demanded that the final statement should contain “express

mention of private mediation” and an examination of the alleged conduct, in view of the OECD

Guidelines. As a basis for their request, the complainants pointed out the position of OECD Watch

on the effectiveness of NCP system, in addition to the observations of the Dutch NCP that “the

Brazilian NCP has the primary responsibility to ascertain the causality of the adverse impacts

referred to in the complaint1 (SEI nº 4839513). Specifically, they petitioned that:


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the Final Statement, in line with the best practices of the NCP system,

contemplates specific recommendations to Van Oord or to the complainants,

regarding to:

i. measures to remedy impacts, including restitution, rehabilitation,

compensation and reparation.

ii. preventive measures, so that the parties can, in line with the spirit of the

Guidelines, take individual and collective actions to prevent new impacts

in the future.

iii. measures concerning the third parties involved, although at this point the

NCP can only develop broader reflections.

After this demand from the complainants, a third mediation session was held, between

September 5 and 6, 2019, again in Gaibu, where a representative of the Brazilian NCP participated

as an observer. Shortly thereafter, Van Oord responded to the merits of the allegation (SEI nº

4864064) filed in June 2015. The justification for the submission after four years was based on

the feeling that the objection could contaminate the friendly environment of the mediation. This

position was reversed from the signal that the procedure was in its final stage. In December 2019,

the complainants submitted a response to the counterclaims (SEI nº5490371), showing

dissatisfaction with both the moment of filing and the content of the position submitted by Van

Oord. Counter-allegations will be addressed in topic 5 while the reaction of the complaining

parties will be addressed in topic 6.

Subsequently, a preliminary version of the final statement was submitted to the parties

to close the case. In January 2020, the parties offered their comments with suggested changes,

which are covered in topic 7. In view of the content and extent of the comments of the applicants,

a deadline has been set for Van Oord to submit a final opinion. Topic 8 addresses that response.

4. INITIAL ASSESSMENT

4.1. General description of the situation

The complainants attribute to Van Oord conduct that violates socio-environmental and

human rights guidelines, supposedly carried out by the dredging activities of the Port of Suape,

which aimed to open and deepen the external channel of the port, in addition to enabling the

basin of the Shipyard Promar S.A. The complainants also blame Atradius DSB for violating the due

diligence guideline. Based on the same category of violation, they identify the co-responsibility

of the Port of Suape “as a state company with shares in the market” as it failed to establish a

transparent and responsible governance mechanism.

By narrating the facts more specifically, the parties inform that Van Oord was hired by

the Port of Suape in 2011, an opportunity in which it received a credit from Atradius DSB to carry


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out the dredging that would form the port’s access channel and the basin for the Promar

Shipyard. The amount was initially secured at more than forty million euros. Subsequently, new

credit was disbursed to deepen the access channel, which raised the total amount to

approximately one hundred and ten million euros. Both projects were identified by Atradius DSB

as having an impact that would be irreversible. In their comments on the preliminary version of

this Final Statement, the complainants indicated the need to clarify that the present allegation

refers to “two commercial transactions by Van Oord, which also received two autonomous

export credit insurance from Atradius DSB, one referring to the channel navigation of the Vard

Promar shipyard and another referring to the external channel of access to the port” (SEI nº

6518402).

As clarified by the petition (Process SEI nº 4346598), Van Oord would have failed in the

due diligence processes, by not promoting consultations with the local population, nor by

disclosing more detailed information regarding the impact on the community and the

environment. In addition to not having assumed a transparent direction of its activities, the

company would have failed to plan and implement actions to prevent and mitigate the impacts

resulting from dredging, excavations, disposal of material and waste, rock removal and landfills.

In this way, the complainants asserts the artisanal fishermen were exposed to serious risk, not

only as a result of the activity itself (explosions, use of dredges, etc.), but also due to side effects

(soil contamination, suppression of vegetation, etc.) The lack of transparency would have

prevented the community from taking “appropriate measures to maintain food security, health

and well-being”.

In another part of the allegation, it is argued that Van Oord “donated significant

amounts” to political parties that influence the decision-making process in the Port of Suape,

which would decrease the effectiveness of mechanisms aimed at suppressing bribery and

corruption.

As for the conduct of Atradius DSB, the accusation indicates a failure to effective monitor

the impact of the projects carried out by Van Oord, giving room for violations of the OECD

Guidelines and its own social corporate policies. When demanded by the negative consequences

of dredging activities (loss of traditional ways of life, biodiversity and ecosystems), the credit

insurance company shifted the blame to its client.

In relation to the Port of Suape, it is alleged that the company failed to demand from

Van Oord: “high standards of transparency and conduct” in the face of dredging activities.

According to the petition there was a lack of measures directed to mitigate the socio-

environmental impact, including “consultation for adjustments and participatory solutions”. The

negligence is said to be in breach of Brazilian law, with the port being a state-owned company

with shares in the market.

Regarding the process of expropriation and installation of the port, the petition points

out problems such as negligible compensation, use of force to prohibit agricultural and fishing


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activities by the local community, in addition to the suppression and contamination of native

vegetation. The complainants inform that complaints in this regard were made through

notifications to the state public prosecutor, to the bar association and to the police. The

allegation indicates that the Port of Suape has implemented a security scheme like an armed

militia, exercising “a tight surveillance program disproportionate to the risks presented to the

Port property”. Still following the NGO’s report, videos, photos and testimonies of the

aggressions were passed on to the three companies, which did nothing. Van Oord claimed “not

to be responsible for community removal operations”.

The claim reported that the “explosion of the seabed” to form the external access

channel led to a “high mortality of marine-coastal species”, in addition to “serious and

irreversible transformations of ecosystems, affecting biodiversity and ways of life for local

communities”. All works would have been carried out based on license issued by the

environmental agency of the State of Pernambuco, when Complementary Law nº 140/2011,

would require a federal-level license. Also the complainants inform that the Port of Suape would

have been assessed on two occasions by the state environmental agency during 2013,

determining “a study containing measures for detailed diagnosis, mitigation and compensation

for the habitat of the jewfish and the gray boto”.

4.2. Relevant Guidelines

As for the OECD Guidelines allegedly violated, the complainants indicate provisions that

are part of Chapter II (General Policies), Chapter III (Disclosure), Chapter IV (Human Rights) and

Chapter VI (Environment). Below we report the specific points raised, with a brief highlight of

relevant points:

4.2.1. Chapter II – General Policies

In relation to item 1 of Chapter II (Contribute to economic, environmental and social

progress with a view to achieving sustainable development), it is argued that the fishermen’s

income dropped sharply after Van Oord’s interventions. According to a report by the state

environment agency, the deepening of the channel reached sandstone reefs, as well as corals,

degrading the marine habitats of several species. Thus, there was a reduction in the fishing area

and seafood collection. It resulted in a process of social marginalization without the creation of

consultation tools with the community in order to mitigate the adverse impacts of the activity.

As for item 2 of Chapter II (Respect the internationally recognised human rights of

those affected by their activities), it is noted that the human rights of traditional fishing-based

community, including those recognized by Resolution 169 of the International Labor

Organization, have been violated as its activity could not have been suppressed by any type of

economical intervention.

In view of item 4 of Chapter II (Encourage human capital formation, in particular by

creating employment opportunities and facilitating training opportunities for employees), the


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complaint highlights that only a portion of the community was “effectively absorbed as a

workforce” for temporary activities, of low qualification and of high risk.

About items 11 (Avoid causing or contributing to adverse impacts on matters covered

by the Guidelines, through their own activities, and address such impacts when they occur) and

12 (Seek to prevent or mitigate an adverse impact where they have not contributed to that

impact, when the impact is nevertheless directly linked to their operations, products or

services by a business relationship), the complaint points out that the landfill area on Tatuoca

Island affected at least 48 families (number probably underestimated), with five generations of

artisanal exploration of the local nature. The result of the activity ended up promoting the

“arbitrary expulsion of local residents” (...) “with serious losses to their ways of life and

fundamental rights”, such as food security, housing, health, income and leisure, among others.

In addition, the land that the Port of Suape claims to own is being “legally contested”. The alleging

parties note that neither Van Oord, nor Atradius DSB exercised their influence positively to avoid

the adverse impact. Likewise, the Port of Suape would not review the previous impact reports,

nor elaborated action plans to mitigate losses, nor structured a communication channel with the

community.

4.2.2. Chapter III – Disclosure

Although they do not indicate any specific guidelines in this chapter, the complainants

point to a violation of Chapter III, in view of the guidelines in the comment inserted in paragraph

33, contained in the OECD Guidelines. According to the comment:

“The Guidelines also encourage a (...) set of disclosure or communication practices in

areas where reporting standards are still evolving such as, for example, social,

environmental and risk reporting (...). In some cases, this second type of disclosure – or

communication with the public and with other parties directly affected by the

enterprise’s activities (...) it may also cover information on the activities of

subcontractors and suppliers or of joint venture partners. This is particularly appropriate

to monitor the transfer of environmentally harmful activities to partners”.

For the complainants, Van Oord would have violated the content of that comment

because it had mentioned “the existence of an Assessment on Environmental Impact (EIA)” (...)

“carried out by the Port of Suape after the elaboration and presentation of the Complementary

Report on Environmental Impact (RIMA)”. The document would contain more detailed studies

about environmental impacts, but the alleged company would have not provided accurate

information for the identification of the study with the environmental agency of the State of

Pernambuco. Likewise, Atradius only made available the RIMA, not providing other documents

to guide its decision making.

Still in Chapter III, a violation of paragraph 35 is argued, referenced as follows:


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“Enterprises are encouraged to provide easy and economical access to published

information (...) Information that is made available to users in home markets should also

be available to all interested users. Enterprises may take special steps to make

information available to communities that do not have access to printed media (for

example, poorer communities that are directly affected by the enterprise’s activities)”.

According to the complainants, the Van Oord company was unknown to the authorities

and the local community, despite its presence in the Suape region since 1995. In general, no

means of communication were provided to warn about the impacts of the activity. In this case,

there was a “lack of transparency in the process”. In addition, the mitigation offers made by Port

of Suape to local communities would have unfair bases, passing on the idea that members of the

community “had no rights over their homes and ways of life”. Furthermore, the dredging works

took place at a time of greater fishing productivity, without offering an opportunity for joint

planning. Although the companies denounced were sought by the complainants, there was no

opportunity for dialogue in order to face these problems.

4.2.3. Chapter IV – Human Rights

The petitioners point out there was also a violation of the item 1 of Chapter IV (Respect

human rights, which means they should avoid infringing on the human rights of others and

should address adverse human rights impacts with which they are involved). To support this

position, the complainants state that the excavation for the basin of the Promar shipyard

destroyed a large part of the island of Tatuoca. At the time the families that inhabited the place

have been deprived of their homes and means of subsistence, private militias were employed by

the Port of Suape to expel them, after offers of insufficient compensation for their restoration.

Within this framework, the inhabitants of the island were forced to carry an identification card,

which violates the constitutional right of free movement (art.5, XV, of the Federal Constitution).

In another aspect, there is also a violation of item 2 of the same chapter (Within the

context of their own activities, avoid causing or contributing to adverse human rights impacts

and address such impacts when they occur). In this regard, the complainants report that the

dredging activity impacted the supply of drinking water to the residents of Tatuoca Island, due

to the salinization and contamination of the water tanks used by families in the area. In addition,

much of the dredged material was dumped in sensitive region, contaminating fish and seafood

areas. As a result, there was a significant drop in production, accompanied by impacts on the

population’s health. They highlighted the situation of women who had infections in the

reproductive system, skin infections and severe allergies.

In relation to item 4 of Chapter IV (Have a policy commitment to respect human rights),

the complainants reiterated that “fundamental rights of housing, food security, the right and

access to drinking water, freedom of movement, the right to perpetuation of traditional lifestyles

and the right to a healthy environment were infringed”. The claimants criticize the behaviour of


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Van Oord for transferring responsibility for the damages caused to its contractor, the Port of

Suape.

Finally, the complaint points out a failure related to item 6 of Chapter IV (Provide for or

co-operate through legitimate processes in the remediation of adverse human rights impacts

where they identify that they have caused or contributed to these impacts). According to the

complainants, the effects of degradation resulting from dredging were predictable, and the

companies involved should have taken steps to protect the traditional communities affected. It

was observed that the inhabitants of the area had their fishing territories and mangroves

damaged, leading to a situation of poverty and dependence, when they previously had autonomy

through the artisanal activities of collecting seafood.

4.2.4. Chapter VI – Environment

In general, the complaint intends to demonstrate that the environmental license issued

by the state agency of Pernambuco did not achieve its legal objective, which would be “to

guarantee the control of the environmental impacts of potentially polluting or degrading

enterprises and the dignified life of traditional fishermen”. In sequence, it accuses the companies

Van Oord and Port of Suape of neglecting studies of the socioeconomic environment, in view of

the costs they represented for the enterprise. An accurate analysis of these studies would lead

to the conclusion that the disposal of sediments would have to be carried out in more distant

and adequate areas. In addition to that, the cost of compensation and indemnity would be

higher.

More specifically, the complainants point to a violation of the item 2a of Chapter VI

(Provide the public and workers with adequate, measureable and verifiable (where applicable)

and timely information on the potential environment, health and safety impacts of the

activities of the enterprise, which could include reporting on progress in improving

environmental performance). Among the conducts that indicate a failure to comply with these

guidelines, it is indicated that the official meetings with the local population only took place after

the start of dredging activities. Even so, the format of the meeting did not allow members of the

affected community to have a say in the project implementation. In addition to adopt the style

of mere presentation, the event would have been held without complying with reasonable

disclosure deadlines and in places far from the operational site.

Also within the scope of Chapter VI, the complainants claim that item 2b was also

violated (Engage in adequate and timely communication and consultation with the

communities directly affected by the environmental, health and safety policies of the

enterprise and by their implementation). According to the complaint, no means of

communication were available to allow an active consultation with the local population. At the

time of filing the claim, the affected community had not received information on monitoring

environmental impacts. At the same time, Van Oord and the Port of Suape would have failed to

clarify the roles of each company in carrying out the project, which made it difficult to address


15

demands by representatives of the region’s inhabitants.

Chapter VI, item 3 (Assess and take into account when making decisions the

foreseeable impact on the environment, health and safety that may result from the company’s

processes, goods and services throughout the life cycle, with in order to avoid them or, when

inevitable, mitigate them) was also the subject of the complaint. In more depth, the petitioners

listed more detailed actions which would fall into this violation category:

a) Overthrow of 4 million cubic meters of marine soil less than 500 meters from the

coastline, which affected fundamental organic substrates for the reproduction of

marine species causing turbidity and water contamination.

b) Misuse of explosives in habitat areas of varieties of marine fauna such as jewfish,

gray boto, sea turtle and starfish, causing death of species threatened with

extinction.

c) Water contamination and turbidity which caused itches in bathers, divers and

shellfish gathers. Affecting the community more strongly, however, the high

mortality of crustacean fish and other invertebrates is reported, in addition to the

impossibility of recolonization due to the burial of habitats.

d) d) The activity permanently impacts individuals of the marine fauna that have

resisted the set of works, depressing productivity.

Finally, violation of item 4 of Chapter VI is alleged (Consistent with the scientific and

technical understanding of the risks, where there are threats of serious damage to the

environment, taking also into account human health and safety, not use the lack of full

scientific certainty as a reason for postponing cost-effective measures to prevent or minimise

such damage). In relation to this guideline, the complainants point out that the role of mangroves

as a nursery for various forms of marine life has not been properly assessed. The landfill over it

would have jeopardized not only the main economic activity but the source of the local

population’s food. In addition, the impacts of dredging have repercussions over time, spreading

territorially by the effect of currents, reaching beach and estuarine areas. There was no

monitoring of the effects of the dredging activity, despite the previous knowledge about the

sensitivity of the region, in view of the information on marine life contained in the Nautical Chart

of the Brazilian Navy.

4.3. Compensation

In view of the allegations and the documents attached to the complaint, the

complainants divide their demands into substantial and procedural ones. The content of what

was required according to the specific instance is transcribed below:

“The substantial demands cover compensation, mitigation and reparations related to

the damages caused to the affected traditional communities and the environment, with

the restoration to the previous state and indemnities for the losses suffered, in addition


16

to the satisfaction of the claims of the communities in a way their human rights are

respected. As reported, the works in the port were mainly responsible serious

environmental changes, with losses of ecological interactions and transformation of the

landscape. The reflexes of these ecological and environmental changes had an intense

and negative impact on the human rights of people and communities in the region,

affecting their economic, social and cultural rights, such as income, food security, health,

culture and intangible heritage.

In view of the facts presented and argued in the petition, the allegers require:

a. The preservation of the remaining areas of mangroves, sandbanks, rocky bottoms

and Atlantic forest.

b. The recovery, revitalization and protection of degraded areas, for their natural states,

with priority to areas recognized by traditional populations in order to guarantee

their cultural and livelihood activities.

c. The delimitation of the anchoring area and the implementation of a marine

conservation unit containing an area for artisanal fishing and shellfish gathering.

d. The participatory design and consensual implantation (with the stakeholders) of a

system of artificial reefs to make fishing activity feasible, in the light of the

substantive and procedural normative parameters that govern consultations with

traditional peoples and affected communities, such as ILO Convention nº 169.

e. The opening of the Ipojuca river channel and access to the Merepe estuary, with

environmental recovery in that region.

f. Permanent and participatory monitoring of environmental indicators (water quality,

aquatic biota, fishing productivity, sediment quality).

g. The implementation of an alert and security system.

With regard to the procedural demands, it is required that Van Oord and Atradius DSB

company, within their attributions and facing the recommendations of the OECD Guidelines for

Corporate Social Responsibilities, seek to: mitigate and remedy the impacts directly linked to the

operations of the two projects mentioned in this document, with particular attention to the

impacts of dredging, rock removal, discharges and landfills; as well as the indirect impacts arising

from the affected social tissues of local communities and the weakening of ecological interactions

of existing ecosystems.

In view of the facts presented and argued in this document, it is required:

1. Implementation of a communication strategy between the companies involved,

communities and civil society entities. Monitoring process by external audit with a

quality monitoring system and observing the levels of satisfaction of those involved.

2. Professional qualification programs that enable the inclusion of those affected in


17

the labour market, in a dignified manner. Criteria to be defined in conjunction with

interested social actors.

3. Specific health programs for artisanal fishermen and shellfish gatherers.

4. Prevention program and care for the physical and mental health of those affected,

considering that the traumas caused by the loss of their ways of life are compared to

war traumas.”

5. COUNTER-CLAIMS

5.1. Context

In contesting the elements of the allegation, Van Oord recalled the starting point of the

procedure. It stressed that the continuity of the mediation was due to the company’s willingness

to debate the content of the allegations, but with a “look to the future”, since it did not recognize

any responsibility arising from a violation of the OECD Guidelines. It mentioned that, without the

company’s voluntarism, the NCP Brazil would have closed the case without analysing the merits

in June 2015. As a way of preparing the specific elements of its defense, the alleged party

described its activities within the scope of the Port of Suape. Initially, it associates the choice of

Suape by the Brazilian authorities as a decision for the least environmental impact, since the deep

waters located along the coast of that region would provide less human intervention, therefore

less environmental impact. He reports that the internal area of the port was completed in 1999,

but that there was an expansion of both the channel and the piers with the participation of other

construction companies.

In relation to the resettlement of residents, it attests that the Port of Suape would be

solely responsible, describing the efforts of the port authority in reallocating community

members by donating land and building housing estates. From an environmental point of view,

it reports that the complex also allocates 59% of its territory to an ecological preservation zone.

As for the development of the dredging project, Van Oord recognizes its duty to verify the

suitability of environmental licenses granted to the project owner, but that the analysis of the

respective environmental impact studies showed “an exceptional standard compared to what is

generally found inside and outside Brazil”. In addition, Van Oord would have “diligently followed

all licence directives and made sure that sufficient mitigation and remediation measures were

taken by the responsible parties”.

5.2. General Notification Shortcomings

Before proceeding to the assessment of the accusations based specifically on the

Guidelines, the alleged company presents an overview of the notification that would

demonstrate its ineptitude to continue with the procedure. This criticism of the initial piece is

structured in five points:


18

a) In August 2015, the initial report of the NCP Brazil considered the notification

inadmissible;

b) The 2011 OECD Guidelines do not apply to Van Oord's projects in the Port of Suape

because they were not in force at the time of preparation and start of works, and the

claim should have been based on the year 2000 version. It should be noted, however,

that the company has covered in its response the defense based on the new

guidelines;

c) Most of the allegations have a generic scope, without precisely defining which of the

alleged parties each conduct would be associated with;

d) Based on the Guidelines, Van Oord would have the right to rely on the impact

assessments and mitigation measures listed by public and port authorities;

e) Van Oord, as a contractor, would have limited capacity to influence the decisions of

the Port of Suape;

f) Dredging works may necessarily affect the land where the intervention is carried out.

Therefore, care is needed to mitigate its effects and Van Oord has adopted additional

measures towards the requirements of the license granted to the port;

g) There is no causal link between Van Oord's activities and the points raised by the

complainants; and

h) Enough mitigation measures have been adopted to provide economic and social

development to a large percentage of the local population.

5.3. Specific responses to the alleged violated guidelines

Having performed this general analysis, the alleged party offers its defense at each

specific point of the notification.

5.3.1. Chapter II – General Policies

In relation to item 1 of Chapter II (Contribute to economic, environmental and social

progress with a view to achieving sustainable development), Van Oord argues that the objective

of sustainable development is not exempt from adverse impacts, provided that pertinent

measures of mitigation and remediation are taken. Regarding the specific issue that the

fishermen in the region would have suffered from the drop in their income, the alleged points

out that others factors would have contributed to the situation. The activities undertaken by

several other companies in the port complex, among which shipyards and petrochemicals stand

out, may have contributed to the decrease in fishing volumes. In addition, elements such as

overfishing, changes in the food chain, increased maritime traffic, as well as works at the port

that preceded the start of Van Oord's activities should also be considered. Still according to the

alleged, the income of all fishermen in the State of Pernambuco would have decreased, which

indicates a lack of relationship between dredging activities and the fall in fishing activity in the

specific region of Suape. It points out that it used mitigating measures, such as ecological waste


19

collection and the use of the Fauna Guard system, to protect the fish population, in addition to

promoting remediation through reforestation of degraded areas, compensation, retraining and

resettlement of those affected. As for the fine imposed by the state environmental agency, the

alleged points out that the offender was the port authority and not Van Oord. Furthermore, the

penalty was subsequently revoked. Regarding the accusation that there were no consultations

with the local community, the alleged informs that there were public hearings in which she was

present. Finally, it complements its defense by stating that it made a careful examination of the

Complementary Report on Environmental Impact (RIMA) provided by the port authority,

adopting additional mitigation and remediation measures.

As for item 2 of Chapter II (Respect the internationally recognised human rights of

those affected by their activities), the alleged company denotes that the guideline taken as a

basis would not be applicable, as it came into force after the beginning of its operation. However,

the defense addresses the points raised in this item by the complainants. Regarding the loss of

the fishing areas, the petition would have not clarified the original fish population when Van Oord

started its activities, failing to specify the possible harmful effect from the dredging activities. It

emphasizes once again that the construction and development of the port complex started long

before the beginning of the activities to deepen the channel, with a drop in the supply of fish

observed since then. Regarding the International Labour Organization Convention nº 169, it

argues that the instrument applies only to Governments, and if any right of indigenous or tribal

peoples” has been violated, the responsible would be the port authority, as a government

organization.

In view of item 4 of Chapter II (Encourage human capital formation, in particular by

creating employment opportunities and facilitating training opportunities for employees), it

highlights the permanent jobs generation would be a responsibility of the port authority, since

Van Oord does not maintain a permanent establishment in the region. Its presence was made

only to provide the dredging services contracted by the Port of Suape. During the execution of

the works, the company sought to hire local staff, but could not employ them for life.

About items 11 (Avoid causing or contributing to adverse impacts on matters covered

by the Guidelines, through their own activities, and address such impacts when they occur) and

12 (Seek to prevent or mitigate an adverse impact where they have not contributed to that

impact, when the impact is nevertheless directly linked to their operations, products or

services by a business relationship), the alleged company also does not recognize the validity of

these guidelines because they were introduced in the 2011 update. However, it defends itself. In

relation to the lack of communication and arbitrary expulsion of residents, the alleged believes

that any offense to the guidelines was under the responsibility of the port authority, as it was

never involved in the resettlement activities of the displaced community. According to Van Oord,

the indemnity and relocation process was already underway when it started its activities in the

port. Despite this, it reports that the company reviewed the social impact assessment, without


20

any evidence that losses to the local community had not been properly addressed. In response

to the accusation that it had not verified property claim issues, it is informed that Van Oord could

not influence the result of the expropriation process, leaving to the Brazilian courts the

competence to resolve them.

5.3.2. Chapter III – Disclosure

When dealing with the notification in the part that concerns Chapter III of the

Guidelines, the alleged emphasizes that the “disclosure recommendations are intended for the

benefit and confidence of the investors of a company”, that is, the expressed disclosure

commitment is not addressed to external company’s stakeholders, but to its shareholders. As the

alleged stated, Chapter III would be linked to the theme of corporate governance. In addition,

Chapter III deals with one of the innovations of 2011, which would make it inapplicable, according

to the alleged. When facing the merits, it attests that the information that should have been

disclosed in the eyes of the complainants was the property of third parties, especially the Port of

Suape. When appropriate, Van Oord would have referred eventual applicants to the bodies

holding the information. Finally, the environmental impact studies that motivated the licensing

of the work were available to any interested party, according to the content of the defense.

5.3.3. Chapter IV – Human Rights

In relation to this chapter, the complainant adds that the applicable version of the

guidelines would be from the year 2000, covering only human rights assumed as international

obligations of the host government. Even so, it defends itself based on the complaints contained

in the notification.

In view of the allegations of violation of item 1 of Chapter IV (Respect human rights,

which means they should avoid infringing on the human rights of others and should address

adverse human rights impacts with which they are involved), the alleged party reasserts that

the choice for the port location and the respective expropriations were not under their control

since governmental authorities had the competence to deal with those aspects. Based on this

premise, it does not accept any accusation that it has been involved in episodes of “forced

eviction, threats, intimidation or restrictions on the freedom of movement”, having not

contributed to any of these results. As previously reported, Van Oord reaffirms that it is unaware

that the expropriation processes have disrespected the applicable Brazilian rules. In addition, the

requirement for identification cards would have consisted of a “security measure” aimed at

allowing only properly equipped and trained people to access the area under construction.

On the other hand, the Van Oord also disqualifies the charge of violation of item 2 of the

same chapter (Within the context of its own activity, avoid causing or contributing to adverse

impacts on human rights and addressing those impacts when they occur). Within the scope of

this guideline, the complainants highlight losses caused to the local community, such as

contamination of drinking water sources and compromised food security. Once again Van Oord

denies responsibility for these damages to the community. According to its objection, other


21

factors, such as various economic activities in the port, may have determined these negative

results. The company stresses, once again, that it employed mitigation and remediation

measures in its activities.

In relation to item 4 of the Chapter IV (Having a policy of commitment to respect for

human rights), the alleged party contests the content of the notification, since the description of

the actions taken to mitigate and remedy damages, would demonstrate the existence of a policy

oriented to the respect for human rights.

Finally, the alleged party refutes the claim that it have failed to comply with Chapter VI,

item 6 (Predict or cooperate through legitimate process in remedying adverse impacts on

human rights, when they identify that they have caused or contributed to those impacts). The

adverse impacts on fishing activity, as already brought up, would not be associated with the

services provided by Van Oord. In addition, the choice of the site by the Port of Suape would have

been guided by the criterion of the least possible disturbance to the environment. Such a decision

would put in doubt whether the fishermen’s ways of life could be classified as traditional. Finally,

as far as the company was aware of the port’s relation with local residents, compensation and

remediation measures were taken in sufficient amount.

5.3.4. Chapter VI – Environment

Within the scope of the chapter on the Environment, the alleged party also does not

accept the accusation of violation of item 2a (Provide the public and workers with appropriate,

measurable and verifiable timely information on the potential impact of the respective

activities on the environment, health and safety, such information may include reports on

progress made in improving environmental performance). Specifically, the company informs

that consultations with local authorities were carried out before the dredging works started and

opportunity was given to the local community to speak out through public hearings.

Likewise, the respondent does not acknowledge that it has disregarded item 2b of

Chapter VI (Establish timely communication and consultation with communities directly

affected by both the company's environmental, health and safety policies and the respective

implementation). According to the defense, Van Oord took steps to publicize its presence on site

and what activities were being carried out under its responsibility. In relation to the participation

of several other contractors, the company considered that the offense would be more related to

the Port of Suape, since only the port authority would have all the details of the full

implementation of the project. As for the evidence represented by the state environmental

agency's infraction notice, the alleged party argue that there is no causal link with the dredging

company. And even if it established a causal relationship, the penalty imposed was ultimately

nullified.

With respect to item 3 of Chapter VI (Access and take into account in the decision

making the foreseeable impact on the environment, health and safety that may result from the

company’s processes, goods and services throughout the entire life cycle, in order to avoid


22

them, or, when inevitable, mitigating them), the company also rejects the arguments presented

by the complainants. At first, the company claims that the disposal of dredged material did not

cause any permanent damage to ecosystems. In addition to use an environmentally friendly

system, the dumping areas were chosen in order to minimize any impacts. It highlights, in this

regard, that the state environmental agency analyzed these allegations and considered them

unfounded. In relation to the deaths of species threatened with extinction, there is no concrete

evidence as the preliminary fine imposed on Port of Suape was later revoked.

The indictment based on item 4 of chapter VI (Whenever there is a threat of serious

damage to the environment, in accordance with scientific and technological knowledge of the

risks involved and taking into account human health and safety, the absence of absolute scientific

certainty as an argument to postpone the adoption of effective and economically viable

measures that allow to avoid or minimize these damages) was also object of the defense. As

claimed, the governmental decision to build the Port of Suape was taken as a way of mitigating

the impacts that the expansion of the Port of Recife would have on the environment. In this line

of thinking, the least evil was chosen, since it would be inevitable to increase the port capacity of

the State of Pernambuco. Regarding the location of the Promar shipyard, settled in a mangrove

area, the choice was made by local authorities, before the involvement of Van Oord. Thus, the

alleged party could neither determine nor influence this result. The mangrove removal process

only started after specific approval by local authorities was granted. Furthermore, the area

occupied by the shipyard was negligible compared to the port, filling only 0.8% of the total space.

In relation to the dredged material disposal operation, the alleged party informs that it has always

used areas previously designated by the competent authorities. Still associated with disposal, it

describes some of the measures taken to minimize the environmental impact (minimization of

disposal on land, reuse of dredged material, reuse of areas for disposal and tracking of dumping).

It highlights that works prior to the presence of Van Oord would have already contributed to the

negative impacts on marine life in the region. Finally, it emphasizes once again that it has adopted

remediation measures, specifically exemplifying reforestation actions and the creation of

environmental preservation zones.

6. RESPONSE TO THE COUNTER-CLAIMS

In December 2019, the pleading parties submitted to the Executive Secretariat of NCP

Brazil a reply to the defense prepared by the company Van Oord.

The first point addressed was the time lag that separates the submission of the

allegation in June 2015 and the presentation of the defense in 2019 by the alleged party. It is

noteworthy that mediation sessions were held with the NCP Brazil and three other private

mediation sessions during that period. Therefore the moment chosen for submitting the

counterclaims was surprising. The complainants show dissatisfaction with Van Oord's intention

to just “look to the future”, as it has always been made clear by them that their involvement also


23

included the possibility of “repairing past human rights violations”. According to the piece, those

involved in the case agreed to participate in mediation sessions not because of the company's

voluntariness, “but because there is an open procedure before this NCP Brazil, which aims to

verify the level of responsibility of the Dutch company in the face of human rights violations that

reached the fishing community in the region of Gaibu - Pernambuco ”.

On the issue related to the applicability of the Guidelines approved in 2011, the

complainants clarify that they were signed on May 25, 2011. In turn, export credit insurance

policies were issued on November 23, 2011 and January 19, 2012, months after the new

Guidelines came into force.

On another aspect, the complainants point out that their petition demonstrated that

“Van Oord failed to comply with due diligence procedures to carry out the dredging activities”.

As a result, the company could not escape its responsibilities for the damages caused by activities

carried out in disagreement with the Guidelines. In addition, the alleged company would be

subject to a regime of shared responsibility between companies and public authorities.

The reply also highlights the report issued by the Dutch NCP in which “adverse impacts

were mentioned to which Van Oord could have contributed”, which would be investigated by

NCP Brazil.

Finally, the complainants point out that there was no evidence that the company took

mitigation and remediation measures in the course of its activities.

7. COMMENTS ON THE PRELIMINARY VERSION

On December 23, 2019, the NCP coordination submitted to the parties a preliminary

version of the final statement for comments. Both parties offered suggestions for changes to

make up the final text. Additionally, the complainants have attached the following

documentation:

a) Technical Information MPF/PRPE /UPD nº 47, of December 1, 2011;

b) Technical Report CPRH/UGC nº 28/2013;

c) Technical Note CPRH/UGC nº 5/2013 (without specific date) - Analysis of the

administrative defense of the Port of Suape against Infraction Notices nº 0767

and 0768 and Subpoena nº 856/2013, all from 2013, originated from the CPRH

Technical Report /UGC nº 28, of September 2, 2013;

d) Technical Note UGC nº 07/2013;

e) Technical Information - MPF/PRPE/UPP/FS nº 36, of October 11, 2013;

f) Opinion CPRH/ETG nº 172, of February 18, 2014;

g) Technical Opinion - MPF/PRPE /UPD /FS nº 40, of September 26, 2014;

h) Technical Opinion - MPF/PRPE/UPD / FS nº 25, of June 30, 2015;

i) Judicial decision on first instance in Public Civil Action 0005552-


24

13.2011.4.05.8300 - 35th Federal Court of the Judiciary Section of Pernambuco,

of October 4, 2016;

j) Judicial decision on second instance in Civil Appeal 0005552-13.2011.4.05.8300

- 4th Panel of the Federal Regional Court of the 5th Region, of December 11,

2018; and

k) Judicial decision on second instance in Civil Appeal Declaration Embargoes

0005552-13.2011.4.05.8300 - 4th Panel of the Federal Regional Court of the 5th

Region, of March 26, 2019.

With exception of the Technical Report CPRH/UGC nº 28, of September 2, 2013, none of

the other documents listed above had been submitted to this NCP. In relation to this, the

complainants made the following statement:

(...) We justify not mentioning and not attaching these public documents in

view of our commitment to maintain a non-litigant stance in the present-

case, since the procedure aims to promote mediation and self-composition

between the parties, not the determination of responsibilities and the

imposition of sanctions. We understand that evidencing Van Oord’s

responsibility in view of the recognition of the casual link by the Brazilian

judicial bodies was not a necessary measure and consistent with the spirit

that should prevail in a mediation process.

As for the content of the complainants' comments to the preliminary final statement,

the text is divided into eight parts which, in turn, can be grouped into three sections. The first of

them refers to the need for specific adaptation of the draft for the purpose of improving it,

covering the first and eighth parts. The second section comprises the fifth, sixth and seventh

parts, presenting specific criticisms regarding the development of the procedure. The other parts

of the comments (second, third and fourth) are intended to change the substance of the final

statement, mainly with the support of documentation brought with the comments to the

preliminary version.

Suggestions found in the first section can be incorporated into the final version without

any deep reassessment. As for the second section, it is up to the NCP to register the

dissatisfaction of the alleging parties, to consider the pertinent criticisms and to improve its

performance in future procedures when applicable. In relation to the rest, it is necessary to

review the matter in the light of the arguments put forward by the complainants. Accordingly, a

more detailed account of the complainants' statement follows in order to guide the conclusions

of this statement.

Initially the complainants criticize the NCP position on the causal link between the

activity undertaken by Van Oord and the impacts observed around the Port of Suape. It reports


25

that NCP-Brazil did not proceed with the verification of the facts, nor did it demand from the

alleged company evidences that would remove the causal link between the dredging operation

and the losses suffered in the respective territory. In the eyes of the complainants, "the burden

of the proof should have been placed on Van Oord" since the complaint would have been

accompanied by much evidence without this NCP specifically indicating the inconsistencies of the

respective complaint. Additionally, they criticize the way the NCP received the response to Van

Oord's counter-allegations, as they should not be understood as a juridical reply. There was no

intention of the complainants to refute all the points raised by the alleged, therefore, the

demonstration would not have a contentious nature typical of a judicial process. From the

perspective of the complainant, the NCP would have been confused "about the difference

between a mediation procedure and a judicial process".

In order to get into the merits, the complainants point out that “the causal link between

the dredging and demolition activities in question and the damage to the marine fauna and

fishing communities treated in our complaint has already been recognized by the Public

Prosecutor, by the Judiciary and by the licensing State Environment Agency (CPRH) ”. To illustrate

its argument, it transcribes an excerpt from the judicial decision of the 35th Federal Court of the

Judiciary Section of Pernambuco in Public Civil Action nº 0005552-13.2011.4.05.8300, where it is

clarified that “contrary to the intention of Suape’s defense, the orientation of the Attorney

General about repealing the Infraction Notices nº 767/2013 to nº 768/2013 does not remove the

evidential strength of the technical documents listed above, nor does it invalidate the findings

verified by specialized professionals”. In addition, the complainants point to the insufficiency of

the studies that supported the granting of environmental licensing for the dredging and

demolition works in the Port of Suape. According to the judicial position in the same action

mentioned above, the “technical assessment of environmental impact - ATIA (2008. p. 39; p. 71)

failed to consider the repercussion of the impacts on marine fauna and cast doubt on the own

existence of fishermen in the region, since the study makes no reference to conducting field

research and does not use secondary data to prove whether the area is effectively used for

artisanal fishing”.

It should be noted that the set of judicial decisions cited was not known to this NCP until

the submission of the complainants' comments in the final phase of the procedure. In view of

this situation, the complainants justify the extemporaneity in view of their “commitment to

maintain a non-litigant stance in the present case, since it is a procedure that aims to promote

mediation and self-composition between the parties, and not the verification of responsibilities

and the imposition of sanctions ”.

In the fourth part, the complainants disagree with the understanding expressed by the

NCP that there was a lack of evidence that could indicate the power of influence of Van Oord

over the Port of Suape. They take as a reference point a document produced by the United

Nations High Commissioner for Human Rights in which corporate responsibility is addressed from


26

the perspective of the Guiding Principles for Business and Human Rights. Among some of the

factors that help to identify the power of influence as recorded in this study, the parties list direct

control, terms of contract, proportion of business that a company has over another and the

capacity of involvement of the local or central government. When touching the case under

analysis, it reports that "it cannot be ignored the fact that the company has established two

important contracts with SUAPE precisely because it is one of the few companies in the world

that carries out dredging services". In view of this alleged bargaining power, Van Oord would be

able to influence the port to mitigate and repair damage caused to the local community.

8. REJOINDER OF THE RESPONDENT TO THE COMPLAINANT’S COMMENTS

In view of the submission of new documents as described in the previous section, the

NCP-Brazil inquired the parties to clarify the existence of other evidence until March 6, 2020. In

response, the alleged company pointed out that the complainants' comments were accompanied

by "a significant amount of new arguments and documents that are unknown to Van Oord". In

view of the need for a more in-depth assessment of the elements that made up the process, an

extension of the deadline was required. To ensure equitable treatment, a deadline was initially

granted until March 31, 2020, extending until April 15, 2020 due to difficulties faced by the

company during the Covid-19 pandemic.

In its statement1, the alleged company reiterates that it voluntarily adhered to the

procedure even in the face of the willingness of the NCP to reject the case in 2015. According to

its understanding, the “complainants cannot remedy the inadmissibility with last minute

documents”, nor could “a debate arise about Van Oord's alleged responsibility”. The party recalls

the points raised in the initial decision not to accept the case, including the deficit in reasoning

and delimitation (Comments on the Guidelines Implementation Procedures, paragraph 25); the

treatment of the issue by other legally competent authorities (Comments on Guidelines

Implementation Procedures, paragraph 26); and the fact that the complaint was based on facts

that occurred more than twelve months before the notification (NCP Resolution nº 1/2012, art.

3).

Proceeding with its argument, the alleged party emphasizes that the maintenance of the

procedure was due to the company's interest in the dialogue, evidencing the exceptional

character of the acceptance of the allegation. It alludes to the mediation preface of October 13,

2017, addressed to a private conflict resolution professional, in which the company rejects any

declaration of failure to comply with OECD guidelines. In their view, neither party would be able

to convince the other regarding the content of the allegations, clarifying that “Van Oord's

availability to travel to Pernambuco and talk to the Complainants was not motivated by any

1 It should be noted that the alleged company raised some points of merit in its March 6 postponement request. The following report considers both that document and the April 15 response as a single response.


27

feeling of responsibility or guilt”. In general, it complains about the “abrupt change in the attitude

of the Complainants towards litigation that clashes with the attitudes of looking to the future and

looking for a solution that were the basis of mediation”. It also accuses the claimants of having

made unilateral contacts with the NCP without the knowledge of Van Oord, besides presenting

a manifestation incompatible with the advanced stage of the procedure in which only corrective

comments to the final declaration form could be accepted.

Based on NCP Resolution nº 1/2012, the alleged company points out the irregularity of

the manifestation of January 24, 2020, as well as the documents that accompanied it.

Under the aspect of the existence of a parallel procedure, the attachment of judicial

decisions, including judgments rendered on appeal, would demonstrate a mismatch with art. 3,

IV, of the referred normative. This provision determines the rejection of allegations that have

been the subject of judicial proceedings, with a final and unappealable decision. The prohibition

provided by the procedural rules of the time would prevent the exercise of jurisdiction by the

NCP as a measure of deference to the courts. With the exhaustion of the judicial process, the

complainants would have already obtained the judicial provision, not being possible double

indemnity.

In relation to the material scope of the judicial decisions, in the view of the alleged

company, the Federal Court would have adopted the theory of strictly objective liability, with the

“cause of the damage never being determined”. In addition, the filing of the public civil action by

the Federal Public Prosecutor reached only the Port of Suape. Bearing in mind that joint liability

in environmental law would allow Van Oord to be included as one of the defendants, the

omission would demonstrate that the representative of the public interest would be convinced

that the dredging company "is not responsible for the environmental complications in question".

Finally, it rejects the notion that the judgments presented by the complainants may reach the

dredging company in view that they could not radiate effects beyond the Port of Suape itself

since “Van Oord was not a party or was in any way involved in these procedures.”

Working with the idea of preclusive impediment, the alleged company points out that

many of the documents presented were prior to the filing of the specific instance. Thus, the

opportunity for inclusion in the case file was lost. Otherwise, provisions of NCP Resolution nº

1/2012 would make it impossible to add new documents and arguments in the phase of

comments to the preliminary closing statement. First, art. 8 only allow addition of new

documents to the specific instance with a specific request to the NCP coordinator himself, with

the objective of redressing defects remediable from the original petition. Given that moment

would have passed, the inclusion of new pieces would be impaired. Another obstacle to the

admission of new evidence and arguments would be art. 13. In the view of the alleged, the

command of the device would allow only one round of statements by both parties. In turn, the

art. 14, § 6, foreshadows that “no additions to the allegations will be allowed in the mediation

phase, once initiated”. Based on this procedural framework, it would not be possible to gather


28

new documents from September 2017, when mediation by a private professional began. In the

words of the alleged company itself, "the Complainants could have submitted at that time

additional documents dated between the date of the Complaint (June 1, 2015) and the beginning

of the mediation (September 2017)". Finally, according to the interpretation of the alleged, art.

19, first paragraph, would authorize the parties to express only their opinions regarding the draft

of the final statement, not allowing the presentation of new documents.

Regarding the use of influence for the exercise of due diligence, the alleged company

exposes its position as just one of the “many instrumentalists of the Port of Suape”. In that way,

Van Oord's capacity would be very limited to manage the course of the port authority decisions.

It reports that, even using the parameters of the Guiding Principles for Business and Human

Rights, it would not be possible to conclude differently. In view of the high level of

competitiveness in the international dredging industry, it would not be possible for any company

in the sector to “dictate to a large employer like the Port of Suape how to conduct its business”.

It emphasizes that any possibility of influence would be ruled out in view of acts already

considered definitive by the port administration, such as the preparation of plans for the access

channel and the internal channel for the shipyards as well as the granting of environmental

licenses.

Finally, the alleged sheds light on the non-contentious nature of the procedure

conducted by the NCP, highlighting the beneficial results of the mediation process, embodied in

the draft of preliminary statement. In its view, the manifestation of the complainants is an

attempt to force the NCP to assume an adjudicative role in order to make condemnatory

statements.

9. MEDIATION

9.1. First Session - NCP

On October 27, 2015, a mediation meeting was held at the NCP office in Brasilia. The

meeting agenda (SEI nº 4834199) established that only the following conducts attributed to Van

Oord by the complainants would be treated:

1) It would have failed to reveal relevant information regarding the social, economic

and environmental impacts of its operations, in particular for the civil society and

traditional communities residing in the region;

2) The operations of the alleged company would have culminated in a) a drop in the

fish production and b) degradation of the habitat of several species of reef fish;

3) It would have used dredgers during fishing periods, without adequate isolation and

distance from the artisanal fishing vessels;

4) It would have failed to a) carry out due diligence and adequate assessment of the

impacts and b) propose alternatives for the inclusion of traditional communities,


29

resulting in a process of social marginalization;

5) It would have used an Environmental License issued by the State Environmental

Agency - CPRH, without, however, characterizing the socioeconomic environment,

the fishing activity developed in the region and the impacts resulting from the

enterprise on those elements; and

6) It would not have enabled space and mechanisms for the effective communication

with the population of the affected region.

Meeting participants discussed topics 1 and 6 jointly. Representatives of the alleged

company argued that there were no more activities in progress at the Port of Suape. Therefore,

improving communication would have to wait for the company to be hired for future operations

in the complex. Thus, Van Oord committed itself to improve interaction with the affected

communities in other projects, subject to any confidentiality clauses applicable.

Regarding the point 4.a, it was agreed that Van Oord would send the complainants a list

of their actions in the Port of Suape to mitigate environmental impacts, highlighting the

additional measures to the requirements foreseen in the license. According to the complainants

in their comments on the preliminary version of this Final Statement, this list was never

forwarded by the company despite having been requested repeatedly.

Regarding the other points, there was no consensus between the parties.

9.2. Second Session – NCP

The second meeting with the NCP Brazil took place on December 15, 2015. As seen in

the minutes of the first mediation session, the points originally numbered 1, 4a and 6 were dealt

with. Thus, the mediation script in its second session (SEI nº 4835919) would include the

remaining topics. However, the respective minute (SEI nº 4835456) demonstrates that there has

been no progress regarding the remaining agenda. In view of the difficulties of progress in the

dialogue, there was consensus between the parties on the need to take the mediation to Suape,

to allow the participation of the local community and the Port of Suape itself. In contrast, the

coordination of NCP Brazil informed that it would not have a budget for travel. Nor could it admit

the Port of Suape in the procedure in view of not complying with the criterion of a multinational

company. Even so, it was agreed that a dialogue channel would be opened between the parties

to continue discussions on reparation or mediation.

9.3. First Private Mediation Session

On November 12, 2017, the first private mediation session was held, in which the

following initial agreements were established, according to record (SEI nº 4841644):

1. Creation of a communication channel between Van Oord and community members,

whose implementation will be carried out jointly by the parties. This channel will

also be used to share information on topics of common interest;

2. Conducting a joint sampling of the waters around Suape in order to verify the

viability of coral development, using Reef Guard coral technology;


30

3. Joint verification of the feasibility of altering the current anchorage area in the Port

of Suape in order to avoid interference with the fish areas; and

4. Evaluation of the possibility of action by representatives of the Dutch government

to raise awareness of Suape in relation to the interests and rights of traditional

communities, including fishing, as well as to develop initiatives to promote corporate

social responsibility in the Suape Port and Industrial Complex.

9.4. Second Private Mediation Session

Held on March 28, 2018, the second private mediation session produced the following

results, according to the respective minutes (SEI nº 4842378):

1. Joint development of a communications protocol to improve the exchange between

the parties;

2. Specification of concrete actions aimed at the preservation and recovery of

ecosystems:

a. Collection of water and soil samples to analyze the feasibility of installing

artificial reef technology (Execution target: 3 months);

b. Introduction of a water quality monitoring program, if pollution is identified

according to the previous item and the program is duly authorized by the

Port of Suape (Execution target: it depends on the previous item);

c. Conducting studies for the implementation of a decontamination and

ecosystem recovery program if there is technical and political feasibility

(Execution target: to be defined);

d. Reopening of the blockades on the Ipojuca and Merepe rivers, to be

informally pleaded by Van Oord to the Port of Suape (Execution target: 2

months).

3. Specification on concrete actions aimed at promoting social and economic well-

being:

a. Improvement of fishermen’s safety, involving the supply of VHF radio, fishing

and rescue equipment, as well as maintenance of fishing boats. To be started

within a period of one month, with no defined execution target;

b. Training of fishermen in the use of the equipment provided, as well as in the

maintenance of boats engines. To be started within a period of one month,

with no defined execution target;

c. Pilot project to investigate the possibility of using GPS and sonar systems to

improve fishing productivity. To be started within a period of one month,

with no defined execution target; and

d. Establishment of partnerships or agreements with research entities, with the

purpose of creating a temporary health program aimed at assisting

fishermen, shellfish gatherers and their families. Van Oord has committed to


31

propose to the Van Oord Family Foundation to sponsor the program. To be

started within a period of one month, with no defined execution target.

9.5. Third Private Mediation Session

On September 5 and 6, 2019, the third session of private mediation between

complainants and respondents was held (SEI nº 4863447 and nº 4863584). On that occasion, the

parties validated the communications protocol previously adjusted.

Once the agenda of the session was agreed between the parties, it was carried out a

presentation of the analyses undertook by Van Oord in order to verify the feasibility of

implementing artificial reefs. Since this preliminary action has not yet been concluded, the parties

agreed to maintain a dialogue to monitor their progress. In this context, a consensus was reached

to create a deliberative committee between the parties and the Association of Professional

Fishermen in Activity of Cape of Santo Agostinho (APPPACSA) to monitor the efforts to

implement the Reef Guard technology. During the operation of the committee, it was agreed

that specialists will be able to provide technical advice, including during collegiate meetings.

Regarding water collection points, it was agreed that the alleging parties will be able to select

these points. Community participation will be allowed in the subsequent collection scheduled for

September 18, 2019. Upon completion of the water analysis with favourable opinion, Van Oord

committed itself to perform due implementation of the Reef Guard technology, provided the

competent authorities give green light to the project.

Regarding the equipping of fishermen’s boats, the complainants made a pledge to send

Van Oord the list of needed gear and their recipients.

About the proposed health program for the local community, the alleged party informed

that the Van Oord Family Foundation made a positive initial assessment, and it was up to the

complainants to refer candidates, like Fiocruz, for the purpose of closing an agreement or

partnership.

Finally, regarding the decontamination and ecosystem recovery studies (item 9.4.2.c)

agreed in the second mediation session, the pleading parties do not recognize compliance by Van

Oord. In turn, the company understands that the report produced by Infomares did not find any

pollution in the samples, harming the objective of conducting a depollution study.

10. CONCLUSION

Before presenting the pertinent conclusions, it should be noted that the NCP-Brazil

underwent institutional changes during the course of this case. Previously conducted by a team

from the Ministry of Finance, the procedure became the responsibility of the new Ministry of

Economy, which incorporated the competences of its predecessor. In view of the transition, it

was necessary to adjust the team of public servants to resume the analysis and writing of this

Final Statement.


32

In order to organize the treatment of the various aspects raised during the procedure,

especially regarding comments delivered to the preliminary final statement, this conclusion will

be divided into topics as follows.

10.1. Limits of the Mandate of the National Contact Point

Following the presentation of the preliminary version of the final statement to the

parties, the document received severe criticism from the alleging parties. It is believed that a

large part of this negative perception is based on expectations that exceed the reach of the

consensual dispute resolution mechanism. Even when the counter-claims are responded, the

complainants inform that they have decided to participate in the private mediation “because

there is an open procedure before this NCP Brazil that aims to verify the level of responsibility of

the Dutch company in the face of human rights violations that have affected the community

fishing in the region of Gaibu, State of Pernambuco ”(emphasis added, SEI nº 5490371). The draft

contested by the complainants had already outlined the scope of good offices and the consensual

nature of the procedure offered by the NCP, as can be seen from the following transcript:

“After reading the documents related to the case, it is clear that it is

necessary to clarify the limits of action of the NCP-Brazil. Although this

body has the task of promoting the effectiveness of the OECD Guidelines,

it must be understood that its competences do not reach a judicial

function. Thus, the applicable legislation does not allow it, for example,

to put in place a fact-finding investigation related to causal ties. Since

there is no consensus between the parties on the narrative that supports

the case, NCP-Brazil lacks technical and legal competence to investigate

and determine steps aimed at fixing a factual thesis that supports or

overturn the elements of the allegation.

In this regard, the chapter on Procedural Guidance of the OECD

Guidelines states that the NCP ‘will contribute to resolving issues arising

from the implementation of the guidelines in specific cases, in an

impartial, predictable, equitable and compatible manner with the

principles and standards of the guidelines’. When the issue brought by

the parties takes the form of a contentious dispute, impartiality limits the

power of a body whose primary function is to offer good offices to

determine a causal relationship, as in the present claim.

According to the OECD Guidelines, the NCP is responsible for providing ‘a

forum for discussion and helping the business community, workers'

organizations, other non-governmental organizations and other


33

stakeholders to deal with the issues raised, in an efficient and timely

manner, and in accordance with the applicable law’. The procedural

guidance for dealing with specific cases leaves no room for doubt. The

role of the NCP is restricted to aiding all interested parties to find a

common path to overcome obstacles related to the Guidelines. In that

sense, there is no provision for judicial action to impose solutions that are

not accepted by one or more parties. On the contrary, it is up to the NCP

to facilitate ‘access to consensual and non-confrontational means, such

as conciliation or mediation, to help the parties to deal with the issues’.

In the same way, Decree nº 9.874, of June 27, 2019, which regulated the

NCP-Brazil in its new format, specifically provides in its article 2, IV, b, that

the competence is related to “to offer mediation to find a non-judicial

solution between the parties, when there are allegations against the

operations of a multinational”. It is noted, therefore, that the

performance of the NCP-Brazil is limited to facilitate consensus, both by

the letter of the guidelines and by what is extracted from the applicable

national legislation.

Even with the introductory explanation of the NCP's mandate, the pleading of the

complainants remains clear in obtaining a declaration of inconsistency in the face of OECD

guidelines. However, from the first moment that Van Oord insisted on the procedure of good

offices, the company clarified that there would be no acknowledgment of guilt on its part. It

would not be up to the NCP to go beyond its role as mediator in order to determine the

responsibility of the accused company. In view of the obstinate refusal of the alleged party to

recognize the points of the allegation, the existence of a clear dispute cannot be hidden. With

frustrated expectations, the complainants seek a statement from this NCP that would be

inconsistent with the scope of consensus between the parties. It is a conflict in search of an

arbitrator.

From this perspective, we believe that there is an exacerbation of what can be expected

from the instrument based on good offices. The mandate given by both the OECD and the internal

rules, in our view, does not include the emission of a judgment on the conduct of the alleged.

The American NCP followed this path when it manifested itself in the Jamaa and US Company

case2:

“Despite the submitters request, the U.S. NCP does not make a

determination as to whether the enterprise that is subject to the Specific

Instance has acted consistently with the Guidelines nor does the U.S. NCP

2 See https://www.state.gov/wp-content/uploads/2019/04/Kenya-Specific-Instance.pdf.

https://www.state.gov/wp-content/uploads/2019/04/Kenya-Specific-Instance.pdf


34

have legal authority to investigate, prosecute or adjudicate issues

submitted under this process.”

In a similar tone, the Australian NCP's role in the Equitable Cambodia and Inclusive

Development International and ANZ Royal Bank3 case demonstrates that, although there is a

commitment to encourage companies to prevent, mitigate or remedy adverse impacts of their

activities, this role does not include the elaboration of specific recommendations on forms of

compensation. This is what can be extracted from item 45 of the respective final statement:

“The AusNCP notes the notifiers’ requests related to redress for the

people involved in this matter and the possible divestiture of profits ANZ

earned from the PPS loan. The OECD Guidelines encourage enterprises

to prevent, mitigate or address adverse impacts where their activities

are linked or may have been a contributing factor. As a non-judicial

mechanism and in the circumstances of this case, the AusNCP does not

consider its role extends to making specific recommendations about

financial redress”. (emphasis added)

These manifestations are not the result of mere complacency directed at companies. In

fact, they reveal the limits given by the OECD guidelines themselves. In terms of specific

instances, the NCP only acts with mediation functions and other mechanisms for the consensual

resolution of conflicts. Not surprisingly, the NCP-Brazil Manual of Procedures for Specific

Instances recently approved, after an open public consultation between the months of

November 2019 and January 2020, included item 7.5.1, which reads: “The NCP Brazil, due to its

nature and because it is a potential mechanism for agreement, it does not make any judgment

about the conduct of companies in relation to the OECD Guidelines”(emphasis added).

In relation to the preparation of the final statement, item 7.5 of the manual clarifies that

the text must include “an overview of the case, a description of the process conducted by NCP

Brazil and, when appropriate, recommendations for the companies”. Note that the role of the

NCP culminates in proposing recommendations to the parties, not setting liability. More

specifically, items 7.5.b and 7.5.c4 also reveal the descriptive character of the final statement,

3 See https://ausncp.gov.au/sites/default/files/inline-files/11_AusNCP_Final_Statement.pdf 4 7.5.b) When the case is accepted, but in the offer of good offices there is no agreement or a party is not willing to participate in the procedures, the Final Statement will describe the issues raised, the procedures of the NCP in assisting the parties, the positions of parties, when expressed, and, if applicable, the reasons why it was not possible to reach an agreement. 7.5.c) When the parties reach an agreement, the Final Statement will describe the procedures adopted in assisting the parties, when the agreement was reached and, according to Section 8, information on the follow-up of the

https://ausncp.gov.au/sites/default/files/inline-files/11_AusNCP_Final_Statement.pdf


35

with underlined importance to the section dealing with recommendations and monitoring of

agreed commitments. Even so, it is worth mentioning that none of the parties to this procedure

made suggestions regarding the list of recommendations presented in the preliminary version.

It should be noted that the parties to this procedure were individually notified (SEI

nº7863155) about the public consultation that culminated in the current Manual5. There were

no suggestions from them about the provisions presented above, implying that there was no

opposition to that understanding.

Due to the characterization of the mandate given to the NCP, we are surprised by the

position of the alleging parties in their comments on the preliminary version of the final

statement. While they demand a manifestation that contradicts the will expressed by the alleged

party, it accuses this NCP of confusing judicial proceedings with a consensual mechanism. It

seems clear to us that the confusion is not on account with this NCP, but with the alleging parties.

In addition, even if the current legislation authorized the NCP to issue a judgment, it

should be noted that the case in question was not accepted by the NCP-Brazil under normal

circumstances. As can be seen from preliminary versions of the admissibility reports (SEI nº

4347964 and nº 4348036), the competent authority of the time did not consider that the

complaint had “sufficiently delimited focus”, nor could the evidential documents presented “be

verifiable by objective criteria by the NCP ”. In addressing the damage caused to the local

community by the intervention carried out to build the whole complex of Port of Suape, the

complainants did not define “exactly the role of the Respondent and in what period its

participation was conducted in a manner contrary to the guidelines”. It is worth mentioning that

the complaint was also not admitted in view of Port of Suape, given that it was not a multinational

company. It is important to note that these were considerations adopted by the authority that

was running the NCP at the time. In that sense, the decision cannot be subject to review in the

context of a final statement.

Thus, the procedure was accepted only after Van Oord expressed interest in using the

good offices of this NCP in an attempt to modify the perspective of the complainants through

solutions designed to assist the local community (SEI nº 4348724, SEI nº 4817605 and SEI nº

4817639).

10.2. Admissibility of new documents

As reported in topic 7, the comments of the complainants were accompanied by several

documents, including reports and notes from the state environmental agency, technical

commitments agreed between the Parties and / or the NCP recommendations. The content of the agreement will be included only to the extent that both parties agree to its public disclosure 5 See http://fazenda.gov.br/assuntos/atuacao-internacional/ponto-de-contato-nacional/produtos/formularios/pcn-manual-de-procedimentos-para-instancias-especificas.pdf

http://fazenda.gov.br/assuntos/atuacao-internacional/ponto-de-contato-nacional/produtos/formularios/pcn-manual-de-procedimentos-para-instancias-especificas.pdf

http://fazenda.gov.br/assuntos/atuacao-internacional/ponto-de-contato-nacional/produtos/formularios/pcn-manual-de-procedimentos-para-instancias-especificas.pdf


36

information from experts from the Public Prosecutor as well as first and second degree decisions

from the Federal Justice. In view of the advanced stage of this specific instance, almost five years

after its filing, the submission of new evidence should be treated with concern and caution. First,

of all the documents, only one of them was already known to this NCP, namely the Technical

Report CPRH/UGC nº 28/2013. In addition, most of the documents are prior to the date of

submission of the complaint. In other words, they could have been part of this analysis since the

beginning of the procedure. As for the subsequent documents, which comprise three judicial

decisions and a technical report from the Public Prosecutor, the complainants could have

requested their inclusion to the file, but there is no record that they did.

Given the weight of the authorities that subscribe such a body of evidence, it is not clear

why the complainants left to do so in the last phase of this procedure, which is designed for

specific adjustments to the final statement. To justify their attitude, the complainants add that

the omission was due to their “commitment to maintain a non-litigant stance in the present case,

since it is an instance that aims to promote mediation and self-composition between the parties,

and not the verification of responsibilities and the imposition of sanctions”. The motivation

contrasts with the meaning registered in the response to the counter-claims in which it was

understood that the procedure in the NCP “intends to verify the level of responsibility of the

Dutch company” (SEI nº 5490371). If the complainants believed that this was the role of the NCP,

they should have submitted all relevant documents as soon as possible. After all, procedures for

determining liability require a high level of procedural rigor.

About the content of the new documents, mainly of the judicial decisions, it is perceived

that the dispute between the parties in relation to evidence revolves around the adequacy of the

fine imposed by the state environmental authority to the Port of Suape. In the company's

counterclaims, the revocation of the referred fine was mentioned three times (pp. 19, 43 and 45,

SEI nº 4864064), but the subsequent response from the complainants did not address the issue.

Only after the release of the preliminary version of the final statement, the complainants decided

to attack the issue through a new set of documents. As reported in topic 7, the manifestation of

the Judiciary recognizes the probative force of the infraction notices that supported the

application of the administrative penalty. For the complainants, the set of papers would

demonstrate the causal link between the dredging operations carried out by Van Oord and the

environmental and socio-economic damage suffered by the community. Once again, it is not

possible to understand the reasons why the plaintiffs did not present this argument at any

previous stage of the procedure since the documents referred to were already known to them.

Although the NCP is not responsible for determining liability, the higher the level of information,

the better it will act in order to make recommendations to the alleged party.

In any case, it is necessary to assess whether there are prohibitions for submitting

evidence in the final stage of the specific instance. Bearing in mind that the current procedure is

a consensual mechanism, the non-acceptance of the documents would depend not only on an


37

examination of the applicable legislation, but also on the circumstances of the present case. At

the outset, it should be stressed that there is no express prohibition on the presentation of new

documents at any stage of the procedure, even when the 2012 regulation, pointed out by the

alleged party is taken as the norm. From the point of view of the progress of this procedure, the

linearity of the acts was impaired. This NCP has attempted to close the instance several times,

but a final declaration was postponed by mutual requests of the parties. After a four-year interval

in which mediation efforts were undertaken, the alleged party decided to offer counterclaims

when article 13 of NCP Resolution nº 1/2012 defined a deadline of thirty days after acceptance

of the case. It justified the extemporaneous presentation in view of the intention to maintain a

favourable environment for negotiation with the alleging parties. As can be seen, this NCP acted

with flexibility to better understand the situation of the problem brought to its analysis. Likewise,

it must behave in the present moment, especially considering the contribution that judicial

decisions potentially bring to the understanding of the issue. In this sense, the admission of new

documents does not in any way prejudice the position of the alleged party, who had an adequate

period to offer its answer. In this way, the impartiality of this NCP remains assured. It is

noteworthy that this is not a judicial process characterized by formal rigidity. The intention is to

seek the effectiveness of the OECD Guidelines.

Regarding articles from NCP Resolution nº 1/2012 mentioned by the alleged party in its

rejoinder of April 15, 2020, it should be noted that article 3, IV, does not allow the acceptance of

allegations that have been the subject of judicial proceedings, with a final and unappealable

decision. However, it should be noted that the decision brought by the complainants concerns

the Port of Suape and not Van Oord, in addition to the existence of pending appeal in the higher

courts as will be seen below. Thus, the object may not necessarily be the same and the res

judicata has not yet been consolidated. It should be noted that article 15 authorizes the NCP to

consider information from lawsuits with the same object if it does not affect the judicial

proceedings. In addition, item 26 of the Commentary on the Implementation of Procedures of

the OECD Guidelines6 clarifies that the existence of parallel procedures does not absolutely

prevent a specific instance from being conducted by the NCP.

Still in the eyes of the alleged party, art. 13 of the referenced resolution would allow

6 When assessing the significance for the specific instance procedure of other domestic or international proceedings addressing similar issues in parallel, NCPs should not decide that issues do not merit further consideration solely because parallel proceedings have been conducted, are under way or are available to the parties concerned. NCPs should evaluate whether an offer of good offices could make a positive contribution to the resolution of the issues raised and would not create serious prejudice for either of the parties involved in these other proceedings or cause a contempt of court situation. In making such an evaluation, NCPs could take into account practice among other NCPs and, where appropriate, consult with the institutions in which the parallel proceeding is being or could be conducted. Parties should also assist NCPs in their consideration of these matters by providing relevant information on the parallel proceedings (emphasis added).


38

only one round of statements by both parties. After a careful reading of the clause7, we did not

observe any excerpt that underlies this restrictive interpretation. The alleged company also

points out the obstacle of art. 14, § 6, which does not admit “additions of allegations in the

mediation phase, after initiated”. However, it is worth asking how the alleging parties could make

their considerations regarding the counterclaims if they were presented only after the mediation

phase. Keeping in mind that the response strategy prevented the complainants' right of

manifestation, the provision becomes unusable from the point of view of balance between the

parties. Finally, the alleged party suggests there is an impediment in Article 198, which regulates

the comment phase to the preliminary version of the final declaration. As with Article 13, we

have not detected any explicit impediment to the presentation of new documents that support

the parties' suggestions.

10.3. Probative effectiveness of new documents

In order to have probative effectiveness in the sense indicated by the alleging parties,

judicial decisions need to be placed in context. As reported in topic 7, both the sentence handed

down in the 35th Federal Court of the Judiciary Section of Pernambuco and the judgment of the

4th Panel of the Regional Federal Court of the 5th Region recognize the substantive content of

the reports delivered by the state environmental agency that supported the Notice of Infraction

nº 767 and nº 768, both from 2013. The fact that the fine had been revoked, as reported by Van

Oord, did not weigh in the decision of the Judiciary. However, some circumstances of the judicial

process need to be considered. First, the public civil action proposed by the Public Prosecutor

was not addressed against Van Oord. Although this first trait shows the exclusion of the possibility

of defense in court, we believe that the company had an adequate opportunity to express its

view of the facts in this specific instance. From another perspective, the alleged party assert that

the Federal Public Prosecutor's Office could include the company as a defendant alongside Port

of Suape if there was joint liability. Failing to exercise this option, the Prosecutor would have

acknowledged that Van Oord acted within the limits of the law. In our perception, this reasoning

is not necessarily true because the path chosen by the Prosecutor may be just a strategy to

reduce the complexity of the process. After all, the complainant in a lawsuit is not required to list

7 Art. 13. When the PCN decides to accept the specific instance, it will communicate the fact to the multinational company in question, describing the points raised and the article(s) of the Guidelines that were allegedly not observed, taking into account the need to protect information deemed confidential by interested parties. First Paragraph. The multinational company will be asked to present its counterclaims within thirty consecutive days which could be extended for an equal period at the company’s request. 8 Paragraph 1 is the relevant provision on the comments regarding the preliminary version as transcribed below: The declarations and reports of the NCP will be previously submitted to the parties so that, within 15 (fifteen) consecutive days from the receipt of the notification, they can express their opinion about the content and suggest changes they consider pertinent. All suggestions made must be justified. The NCP will decide whether the suggested changes will appear in the final document.


39

all joint liable parties in the petition. If only one of them is subject to the lawsuit, the exercise of

this procedural option does not exempt the others from liability. That is so because those

affected by the lawsuit can call the others to the process. In this case, the Port of Suape did not

follow this alternative, but we cannot specify the motivation of the port complex, which may

have been from the need to preserve commercial ties to the ignorance of such legal path.

In another view, the temporal aspect can be explored due to an apparent mismatch

between the timing of the public civil action and the narrative of the specific instance. As it is

extracted from the initial petition from the public civil action, the investigation that originated

the demand was formalized in the Public Civil Inquiry nº 1.26.000.001763/2010-96. As the

number of the docket reveals, the procedure was started in 2010. In turn, the public civil action

was filed in Federal Court on April 14, 2011 (SEI nº 7848126). These timelines do not align with

the object of the specific instance since it refers to credits granted by Atradius DSB to Van Oord

on the dates of November 23, 2011 and January 19, 2012. Thus, a question emerges on the

relationship between decisions arising from public civil action and the ventures carried out by

Van Oord in the Port of Suape.

To help clarify the issue, the report from the environmental agency of the State of

Pernambuco (SEI nº 6519276) is useful. On page 4, the document lists a series of authorizations

and licenses that relate to interventions in the Port of Suape as shown in the table below:

Authorization File Validity Object Estimates of dredging volume in detail

Authorization nº 200/2008

9764/2008 August 29, 2009

Maintenance dredging of the access channel

and maritime dredging.

Access channel 4,889.214 m³ and rock extraction 362.244m³

Installation License nº133/2009

3091/2008 September 09, 2012

Construction of an oil pier. Deadline with initial term for June 2, 2010. Extended by process nº 13836/2009

Dredging volume of 6,000 m³ of sand

Authorization nº 04.09.08.007297-4

7928/2009 August 26, 2010

Rock dismantling, maintenance dredging of the access channel and marine dredging.

Access Channel - 4,889,214m³ and rock extraction - 362,244m³.


484/2012 March 30, 2013

Dredging’s completion of the tankers access channel, dismantling of rock in a marine environment.

Access Channel (complementation) - 4,889,214.00 m³ and a rock extraction of an estimated volume of 362,244 m³, and final disposition in the disposal zone number 2.


40


15711/2012 December 27, 2013

Completion of the dredging of the tankers access channel, dismantling of rock in a marine environment.

648,372.66 m³ of sand and rock extraction of an estimated volume of 1,102,692.90 m³, and final disposal in the disposal zone number 2;

As can be seen from the information above, three interventions in the Suape region

were authorized or licensed between 2008 and early 20129. Since the public civil inquiry was

initiated in 2010, the original complaint of the Fisherman’s Colony Z-8 was motivated by the

impacts of the execution of those activities and none of them are within the scope of the specific

instance. It should be noted, however, that the Federal Prosecutor's Office requested the

granting of a preliminary injunction to immediately suspend all dredging activities in the Port of

Suape area (SEI nº 7848126). In other words, the public civil action had as its scope not only the

works carried out until its filing, but also those that would be carried out in sequence. In view of

the rejection of the injunction by the competent court, as extracted from the Federal Justice

website (SEI nº 7848123), the expansion of the port continued without judicial impediment. Thus,

decisions that recognize the evidential relevance of the infraction notices are connected to the

object of the present specific instance.

Established the framework for the temporal scope of the decisions brought by the

complainants, it is clear that the first three activities are not specifically comprised by the specific

instance. Taking the context of the granting of credit from Atradius DSB to Van Oord, only the

last two activities are clearly achieved by the complaint. Thus, if the damage had already been

observed since 2010, leading to the opening of a public civil inquiry, how can one measure the

level of influence of the final part of the dredging and demolition works? It should be noted that

the last authorization, which was in force until the end of 2013, licensed a rock extraction volume

equal to the sum of the three previous contracts. However, the authorized volume of dredging

for the last two works was practically half of the first three. In view of this scenario, the capacity

of this NCP to determine in an exact measure what was the contribution of the Van Oord

company to the result is reduced. In this regard, however, the environmental agency's reported

as follows:

In this way, the gradual installation of port activities, causing the suppression of

artisanal fishing territories and the destruction of reefs and other environments

leads to the degradation of artisanal fishing activity, as well as the values and

techniques specific to fishing communities that guarantee the reproduction of

this activity and the maintenance of fish stocks. Although the dredging in Suape

9 Authorization nº 200/2008, Installation License nº 133/2009, Authorization nº 04.09.08.007297-4.


41

has already been causing intense environmental changes for several years,

fishermen indicate the peculiarities of the demolition works, especially for its

irreversible character.

It is observed that there is a recognition of the successive degradation process caused

by the installation of the port, while highlighting the impact of the rock extraction works in view

of its irreversible character. The issue becomes sensitive in view of the underestimation of the

effects of this activity in the 2008 Technical Assessment of Environmental Impact, produced

under the auspices of the Port of Suape. According to the document, the affected region would

not constitute an artisanal fishing area, and “significant impacts on this activity are not foreseen”

(SEI nº 6519276). This is one of the flaws pointed out by the Judiciary that would have tainted

the procedure for granting licenses and authorizations since 2008.

10.4. Due diligence and power to influence the results

As the complainants point out, the OECD Guidelines emphasize the duty of due

diligence, which supports the notion of shared responsibility. From this perspective, the obstacle

of a restricted subjective and individual responsibility is overcome. Thus, all those who could

influence the harmful result are subject to the NCP procedure, in view of their position of power.

It is a tool aimed at expanding the network of subjects to whom a duty of care can be attributed

in the exercise of their corporate activities. However, even if it consists of a positive evolution of

the notion of responsibility, its application should be reasonably considered. The degree to which

due diligence can be expected depend directly on the level of influence that one company may

have over another's conduct. In other words, the use of bargaining power in a business

relationship serves as an important tool for achieving voluntary adoption of the OECD Guidelines.

Therefore, to conclude the commitment to due diligence was disrespected it is

necessary to assess the integrity of the business ties and the position of one of the commercial

partners vis-à-vis the other. In this context, the OECD itself has produced several manuals of due

diligence, highlighting the concern with supply chains. The focus on this type of relationship is

understood, as transnational companies usually have a continuous flow of interaction with their

suppliers, in addition to placing themselves in a position to determine the quality and origin of

the inputs that are sold to them.

The specific case, however, does not fit this paradigm in full. At first, we are not facing a

panorama comparable to what can be found in the power relationship system that characterizes

supply chains. The relationship between Van Oord and Port of Suape does not happen in a

continuous way, being both connected only when the engineering services are necessary. From

this point of view, there is no continuous flow of interactions that allows to effectively convey

any possible influence of one company on the other. The very fact that there is no longer a


42

commercial relationship in force between both companies, with no contract on the horizon,

demonstrates Van Oord's low level of influence on Suape's operations. In addition, the size of the

port complex does not allow an individual service provider to exercise the role of effective

supervisor over all impacts arising from the installation and development of a project that

involves expropriations, construction of shipyards, operation of refineries and various other

sensitive activities.

Moreover, it is not clear that the Port of Suape is in a position of dependence on Van

Oord since the company does not have a monopoly on the dredging industry. Even considering

the complexity of the sector, there are other large companies with the capacity to provide the

services necessary for the maintenance and expansion of the port. These include Royal Boskalis

Westminster10, China Harbour Engineering Company11, Jan De Nul12, DEME13 and Hyundai

Engineering and Construction14.

In view of the characteristics of the relationship between Van Oord and Port of Suape

and the position of the contractor in such a diversified enterprise, there is no favourable situation

for the effective exercise of due diligence on the part of the alleged party. In any case, the

recommendations of this NCP, as will be seen below, include the possibility that the alleged

influence the Port of Suape in order to implement mitigation measures in case commercial

contact is resumed.

10.5. Results of Public Civil Action nº 0005552-13.2011.4.05.8300

In relation to the decision handed down by the Federal Court of Pernambuco, it is noted

that the Port of Suape was ordered to carry out various compensation and mitigation measures

related to the effects of the questioned engineering interventions. The implementation of these

measures would take shape “according to a schedule to be established in a subsequent follow-

up procedure”. In this regard, it is worthwhile to present a full transcript of the respective judicial

order:

“Therefore, the following measures described below must be adopted in order

to mitigate and compensate the impacts caused, which must be complied with

by means of a timetable to be established after the final decision, in the follow-

up procedure:

10 See https://boskalis.com/ 11 See http://www.chec.bj.cn/pub/chec_pc/cn/sy/ 12 See https://www.jandenul.com/en 13 See https://www.deme-group.com/deme 14 See https://news.hyundaimotorgroup.com/MediaCenter/News/Press-Releases/hdec-enter-South-Pacific-technical-prowess-150626.hub

https://boskalis.com/


http://www.chec.bj.cn/pub/chec_pc/cn/sy/

https://www.jandenul.com/en

https://www.deme-group.com/deme

https://news.hyundaimotorgroup.com/MediaCenter/News/Press-Releases/hdec-enter-South-Pacific-technical-prowess-150626.hub



http://www.chec.bj.cn/pub/chec_pc/cn/sy/

https://www.jandenul.com/en

https://www.deme-group.com/deme




43

I) Detailed mapping of undersea habitats in the area of direct and indirect

influence of Suape, containing at least:

a) Identification of features and type of marine floor, for example, rocky, sandy,

gravel, etc.

b) Identification of the current and past occurrence sites of jewfish,

distinguishing the nursery and adult occurrence areas.

c) Identification of the places with the highest occurrence of the gray boto.

d) Other relevant environmental information.

II) Mapping of traditional artisanal fishing territory, according to information

from fishermen who use the area, including boat masters, together with

researchers with experience in the social category. The mapping should include,

at a minimum:

a) Fishermen's housing areas, storage and maintenance of fishing equipment.

b) Anchoring/mooring/support areas for fishing vessels.

c) Boarding and unloading areas.

d) Fishing boats circulation areas.

e) Fishing areas and other significant environments for the activity.

f) Elements on land used as a reference for the location of fishing areas.

g) Other elements considered significant for the artisanal fisherman's activity

and way of life.

III) Quantification of the areas belonging to the artisanal fishing territory that

were appropriated and impacted directly or indirectly by the Port of Suape,

discriminating, at least:

a) Extension of restricted or forbidden areas to fishermen and the placement of

their equipment (access channel, maneuvering basin, anchorage area for ships,

internal port, etc).

b) Extension of the fishing environments that were suppressed by rock

extraction activities.

c) Extension of fishing environments indirectly affected by dredging and rock

extraction activities.

IV) Adoption of protective measures for jewfish, gray boto and other impacted

fauna species in places directly or indirectly impacted:

a) Measures to protect existing habitats and populations;

b) Measures for the recovery of populations;

c) Measures to monitor existing habitats and populations;


44

d) Measures to improve knowledge about the population structure, seasonality

and movement of species through specimen marking; and

e) Measures for the effective exercise of control and inspection of fauna

resources, in order to avoid predatory activities.

V) Adoption of measures to protect the traditional territory of artisanal fishing,

given the risks of port activities and other threats, such as:

a) Measures for the official recognition of fishing territories;

b) Creation of official mechanisms for consultation with fishermen prior to

carrying out activities in their traditional territory.

c) Measures for the recovery of fish stocks.

d) Measures for control and inspection of predatory activities to fishing

resources and risk management of port activities, industrial fishing, aquaculture,

among others, on artisanal fishing activity.

VI) Adoption of measures to mitigate the potential impacts for future rock

extraction activities (especially if using explosives), such as:

a) Assessment of the vulnerability of the jewfish and graby boto in relation to

the shock waves caused by detonations.

b) Adequacy of the "fire plan" to the vulnerability of species in relation to shock

waves, with frequency monitoring of explosions.

c) Measures to effectively keep away specimens from the rock extraction area,

considering the susceptibility of the mentioned species to shock waves caused

by the detonations of explosives.

V) Seasonality of dredging operations, which can only be carried out during the

winter months (from May to August).”

In relation to the request of the Federal Public Prosecutor to make the issuance or

renewal of environmental licenses for disposal of dredged materials conditioned to new analysis

of the chosen places, the sentence has the following record:

On the other hand, in relation to new careful analysis of the place indicated as

'disposal area' (claim described in sub-item "b", mentioned above), I understand

that there is no longer any reason for such a requirement. This was because, it

was presented by SUAPE in 2014 the ‘General Study of the dredging and landfill

of the remaining areas of the internal port, identifying, characterizing and

quantifying the need for areas for oceanic disposal and deposits’, subdivided

into: Tomo I - Volume I - Geotechnical Study of the Dredging and Landfill of the


45

remaining areas of the Internal Port and Volume II - Environmental Assessment

of New Areas for the Oceanic Disposal.

The mentioned study, as inferred from the analysis carried out by the technical

sector of the Federal Public Prosecutor’s Office itself (pages 675/714), as well as

the information provided by an environmental analyst at the State

Environmental Agency (pages 732/740, item 4), is sufficient for purposes of

adequate identification of areas of oceanic disposal, explaining why it is not

required to carry out another study with the same objective.

An illustrative example refers to the conclusion of the technical report of the

State Environment Agency:

‘It was clear that the choice of oceanic disposal areas followed all legal norms,

mainly CONAMA Resolutions nº 357/2005 and nº 454/201. The twenty final

considerations (pages 276 to 281) demonstrate, consistently, that their choice

has enough arguments to approve the five new areas’. (page 740)”

In terms of compensation to the fishing community, it should be noted that the judge of

the 35th Federal Court maintained the “payment of financial aid and the provision of foodstuffs”

that had already been granted preliminarily. Thus, it rejected the granting of the definitive

indemnity to be disbursed by the Port of Suape, considering that “the elements contained in the

records are insufficient to determine, now, definitively, that there was a negative and significant

influence on the activity of artisanal fishermen in the region ”. Rejecting this understanding, the

Federal Regional Court of the 5th Region reversed the decision to authorize the “aggrieved

persons, once there is res judicata, to make use of individual enforcement procedures, in the

form of articles 95 and 97 of the Consumer Protection Code”. At the outset of the judgment,

therefore, the Court ordered the Port of Suape to provide “compensation of material damages

to the affected communities” with the necessary legal interests.

Although these results are substantiated in a second-degree decision, there are still

higher means of appeal and the res judicata is not yet consolidated. It is noted that recently the

Port of Suape appealed to the Superior Court of Justice (SEI nº 7848130) and to the Supreme

Federal Court (SEI nº 7848133). Among the elements that make up the argument there is an

indication of a technical note from the State Environmental Agency, produced on November 23,

2013. This document would attest the absence of a causal link between the construction

activities in the complex and the damage faced by the fishing community. As supplementary

information, a survey on the website of the Superior Court of Justice shows that Colony Z-08, one

of the alleging parties in this specific instance and an assistant to the Federal Public Prosecutor

in the civil action, submitted counterclaims to the special appeal (SEI nº 7848136).

10.6. Final Remarks


46

The examination of Public Civil Action nº 0005552-13.2011.4.05.8300, made known only

in the final phase of the present procedure, helped to better understand the framework of the

disputes arising from the degradation of the environment in the region of Suape. While the Port

was not included in the present specific instance, it underwent a parallel procedure initiated by

a public civil inquiry started by the complaints from the Z-08 Fishermen's Colony. Although the

respective public civil action has not yet reached a final decision, it is clear that the provisional

conviction of the port complex includes a series of mitigation and compensation measures that

needed to be reported to this NCP for purposes of adjusting the recommendations and

subsequent monitoring of the matter.

Regarding the fact that this procedure was made possible by the interest of the alleged

party in benefiting from the good offices of the NCP, it is important to remember the procedure

could not exclude the examination of the documents brought up by both parties. At the same

time, it is recognized that the port complex is integrated with a multiplicity of actors whose

activities offer socio-environmental risk. In this way, there are refineries, shipyards, logistics

operators and various industries belonging to an intricate network of companies with high

potential for degradation and operating since the mid-nineties. However, this NCP believes that

it can contribute with recommendations aimed at perfecting the conduct of business activity in

order to improve alignment with OECD guidelines.

In view of the analysis of the documents attached to the procedure, the

recommendations are guided by the results obtained during the mediation effort and by the

observations on the parallel judicial procedure opened against the Port of Suape.

11. RECOMMENDATIONS

Based on the documents forwarded and the discussions held, NCP Brazil recommends -

more than any other considerations - that the parties continue their efforts to maintain dialogue

and cooperation, especially about the agreements already reached. For monitoring purposes,

this NCP is available to receive semi-annual reports on the progress of implementation of the

measures heretofore agreed, as well as new initiatives to be agreed between the parties in the

future.

In particular, the reports are expected to cover at least the points that have already been

the subject of consensus between the parties, notably:

a) The progress of the necessary actions for the possible installation of artificial corals

with the Reef Guard technology;

b) The installation of artificial corals, once the conditions of the marine environment

and the appropriate government authorizations are confirmed;

c) The equipping of fishermen's boats to improve the safety and productivity of

traditional fishing; and


47

d) Negotiations with the Van Oord Family Foundation to implement a health program

aimed at serving the local community.

Regarding initiatives that could not yet be the subject of consensus, NCP-Brazil

recommends the parties to take advantage of the continuous effort of mediation to verify the

possibility of adopting the following measures aimed at serving the community of fishermen

located in the region of Suape:

a) Implementation of a water quality monitoring program following the studies carried

out to install the Reef Guard technology; and

b) Professional training for those who have been excluded from the labor market, as

Van Oord obtains new contracts with the Port of Suape.

In relation specifically to the alleged party, the NCP-Brazil recommends that:

a) The communication protocol established with the alleging parties be kept

functional to facilitate the fulfillment of the commitments undertaken during the

mediation. Assuming that the company aims to change the perception of local

communities and organizations that defend the environment and human rights, it

is recommended that the learning acquired from the communication protocol be

disseminated in other dredging activities in which Van Oord should be contracted.

In this way, it is expected that the activities developed by the company will have the

necessary transparency increase so that the affected communities have the real

dimension of the work carried out.

b) Exercise its business relationship with the Port of Suape in order to address

solutions that are within the reach of the port authority once opportunities for new

contracts are opened.

c) Review its protocols for assessing environmental impact studies that guide the

competent authorities in granting licensing. In this specific item, the purpose is to

identify elements that can be reinforced, thus increasing the safety of dredging and

rock extraction activities.

In relation specifically to the alleging parties, it is recommended that:

a) Follow up on the processing of Public Civil Action No. 0005552-13.2011.4.05.8300 at

higher courts. After the final and unappealable decision and confirming the

judgment of the Federal Regional Court of the 5th Region, present a report to this

NCP on the phase of enforcement, including the expected implementation of the

remedial, mitigating and compensatory measures imposed on the Port of Suape;


48

b) Review its policy for filing and monitoring of specific instances in order to keep this

NCP always informed about all parallel procedures relevant to the issues brought to

its attention.

Furthermore, despite the fact that the Guidelines represent a set of voluntary directives,

NCP Brazil expects the recommendations presented here are duly considered, since they are

based on agreements reached by the parties, on the legitimate concerns raised by both sides and

in the management of cases submitted to this NCP.

This specific instance with the OECD Guidelines is completed and closed.

Márcio Luiz de Freitas Naves Lima

Coordinator of the National Contact Point of the

OECD Guidelines for Multinational Enterprises


49

ANNEX I - Timetable of the case with the NCP Brazil:

June 2015 Filing of the specific instance

July 2015 Previous report of admissibility for the rejection of the case

July 2015 Additional information sent by the alleging parties

August 2015 Van Oord's request to participate in the procedure conducted by NCP-Brazil

August 2015 Initial report of exceptional acceptance of the specific instance

October 2015 1st Mediation session promoted by NCP-Brasil December 2015 2nd Mediation session promoted by NCP-Brasil March 2016 1st Preliminary closure report March 2016 Parties' requests for continuation of the case September 2016 NCP-Brazil reconsideration to keep the case open November 2017 1st Private mediation session between the parties February 2018 2nd Preliminary closure report March 2018 2nd Private mediation session between the parties December 2018 Comments by the parties to the 2nd preliminary closure report September 2019 3rd Private mediation session between the parties September 2019 Van Oord's counterclaims on the specific instance filed in June 2015 December 2019 Response of the complainants to Van Oord's counterclaims December 2019 Preliminary version of the final declaration submitted to the parties January 2020 Comments of the parties regarding the draft of the final declaration April 2020 Van Oord's rejoinder to the complainants' comments on the final declaration draft May 2020 Final version of the Final Declaration approved by NCP-Brazil


50

ANNEX II - Information on the Stakeholders

NCPs involved in the instance:

NCP Brazil, responsible for the Instance.

Ministry of Economy

Executive Secretariat of CAMEX

Esplanada dos Ministérios, Bloco J, Brasília-DF

Email: [email protected]

Website: http://pcn.economia.gov.br

NCP Netherlands

Secretariaat NCP OESO-richtlijnen

Ministerie van Buitenlandse Zaken

Bezuidenhoutseweg 67, Den Haag


Website: https://www.oecdguidelines.nl/ncp

Complainants

Associação Fórum Suape Espaço Socioambiental – Fórum Suape

Non-governmental, non-profit organization founded in October 2013 in the

municipality of Cape of Santo Agostinho, Pernambuco; in defense of human rights

and socio-environmental rights.

Rua Petronilo Capistrano dos Santos, 97 - bairro Ponte dos Carvalhos

54580-330, Cabo de Santo Agostinho – Pernambuco

Phone: 55 81 3274 - 3766


Site: http://www.forumsuape.ning.com

Conectas Direitos Humanos

It is an international non-governmental, non-profit organization, founded in

September 2001 in São Paulo - Brazil. Its mission is to promote human rights and

the Democratic Rule of Law, in the Global South - Africa, Latin America and Asia.

Since January 2006, Conectas has had consultative status with the United Nations

http://pcn.economia.gov.br/

https://www.oecdguidelines.nl/ncp

mailto:[email protected]

http://www.forumsuape.ning.com/


51

(UN) and, since May 2009, has had observer status with the African Commission

on Human and Peoples' Rights.

Caixa Postal nº 62633

01214-970, São Paulo – SP

Phone/Fax +55 11 3884-7440

Site: http://www.conectas.org/

Fishermen's Colony of the Municipality of Cabo de Santo Agostinho (Z08)

Non-profit civil association, professional body and representation of professional

and artisanal fishermen.

Avenida Beira Mar, 58 - bairro de Gaibu

54.590-000, Cabo de Santo Agostinho – Pernambuco

Phone: +55 81 8623-3297

Both ENDS

Independent, non-governmental organization (NGO) that works towards a

sustainable future for our planet. Identifies and strengthens civil society

organizations (CSOs), particularly in developing countries. These organizations

often come up with lasting answers to environmental and poverty-related issues.

Nieuwe Keizersgracht 45

1018 VC Amsterdam

Holanda

Phone: +31 20 5306 600

Fax +31 20 620 8049


Site: http://www.bothends.org

Respondents

Van Oord Marine Ingenuity

Dutch private company operating in more than 50 countries in the areas of

dredging, naval engineering, in energy projects (oil, gas and wind). Hired by the

company Suape for the dredging of the port area.

Schaardijk 211

3063 NH Rotterdam

PO Box 8574

The Netherlands

Site: http://www.vanoord.com

http://www.conectas.org/


http://www.bothends.org/

http://www.vanoord.com/


52

Brazilian address:

Van Oord Serviços de Operações Marítimas Ltda

Rua da Assembleia, 11 – 6º andar – Centro

20.011-001, Rio de Janeiro, Capital

Phone: +55 21 21720100/21720121

Site: http://www.vanoord.com/contact/america#Brazil

Atradius Dutch State Business (Atradius DSB)

Atradius DSB offers Dutch credit insurance companies in the name and on behalf

of the state, involving capital goods export operations or international projects to

build a wide range of insurance and guarantee products when doing business

abroad. Through its insurance and guarantee products Atradius collaborates with

companies in export operations, increasing its financing capacity with banks.

David Ricardostraat 1, 1066 JS Amsterdam

Postbus 8982, 1006 JD Amsterdam

Phone: +31 (0) 20 553 2693

Fax: +31 (0) 20 553 2087

Site: http://www.atradiusdutchstatebusiness.nl

E-mail: [email protected]

Eraldo Gueiros Port Industrial Complex – Port of Suape, Pernambuco

The Governador Eraldo Gueiros Industrial Port Complex, better known as Port of

Suape, is a Brazilian port located in the state of Pernambuco, between the

municipalities of Ipojuca and Cape of Santo Agostinho, in the Metropolitan Region

of Recife. It is the largest public port in the Northeast Region.

Engenho Massangana, PE 09 - s / n Rodovia PE, 60

55.590-972, Pernambuco

Phone: +55 81 35275000

Fax: +55 81 35275066

Website: www.suape.pe.gov.br

http://www.vanoord.com/contact/america#Brazil

http://www.atradiusdutchstatebusiness.nl/


http://www.suape.pe.gov.br/

final declaration - gov.br

Documents