This section discusses three types of grievance mechanisms: the operational-level grievance mechanisms (OLGMs), which are generally developed by companies or associations, as well as transnational mediation mechanisms and the accountability mechanisms of investment and development banks, developed by the state or by Development Finance Institutions (DFIs), and are essential to address cross-border business-related human rights concerns. The third section refers to mediation mechanisms in Belgium that can receive these type of complaints. A final section looks at how companies can meet the expectations in this domain.
Operational-level grievance mechanisms (OLGM)
An operational-level grievance mechanism is defined as "a formalized means through which individuals or groups can raise concerns about the impact an enterprise has on them—including, but not exclusively, on their human rights—and can seek remedy". The UNGPs (Principle 29).
OLGMs are mainly voluntary mechanisms and form part of the corporate sustainability due diligence process. They are vital for identifying adverse human rights and environmental impacts with the involvement of local communities, rightsholders and stakeholders. This is in line with the company's inquiries and informs management of any adverse impacts that were not identified in the ex-ante impact assessment conducted by the company and its commercial partners. OLGMs also complement reporting systems, as the feedback received from rightsholders and stakeholders can help to identify risks and facilitate the implementation of tailored solutions to address them. Furthermore, they establish long-term channels to ensure meaningful stakeholder engagement.
The nature and structure of OLGMs may vary, as any organisation can create its own OLGM or join collaborative initiatives of a specific sector or group of stakeholders. In general, the size and structure of the business will determine the nature of the OLGM. Large organisations are expected to create their own grievance mechanisms. Small and medium-sized organisations can develop single and general grievance mechanisms or participate in an OLGM implemented by another larger association of organisations with similar activities and in a similar sector. They can also participate in an OLGM implemented by a multi-stakeholder initiative or by other stakeholders, such as investment banks, if they can guarantee the early identification and remedy of adverse impacts. See further How to meet expectations.
Mandatory OLGM
So far, the Corporate Sustainability Due Diligence Directive (Directive (EU) 2024/1760, CSDDD art.14) requires companies bound by the Directive to establish a notification mechanism and complaints procedure to deal with legitimate concerns regarding actual or potential adverse impacts related to their activities. The Preamble, connects this obligation with the UNGPs (Principle 31). Meaningful stakeholder engagement, the proactive side of the OLGM, is also regulated by the CSDDD (article13).
Some additional guidance:
- Access to Remedy in Cases of Business-Related Human Rights Abuse: A Practical Guide for Non-State-Based Grievance Mechanisms, 2024
- 10 steps to setting up an effective feedback mechanism: The UN Refugee Agency (UNHCR).
- Doing business with respect for human rights: Chapter 3.8 Remediation and grievance mechanisms 'early warning, effective solutions' of The Global Perspectives Project of the Global Compact Network Netherlands, Oxfam and Shift.
- Complaint mechanisms reference guide for good practice (2016) Transparency international (2016).
- Rights compatible guidance initiative: A guidance tool for companies and their stakeholders (2008) from the CSR initiative of the John F. Kennedy School of Government at Harvard University.
- Remediation, grievance mechanisms and the corporate responsibility to respect human rights (2014) from Shift maps "the place of a grievance mechanism inside organisations or alongside value chains".
Transnational mediation and accountability mechanisms
Although national mechanisms are essential to guarantee access to remedy, it is important to ensure access to transnational or cross-border remedies when value chain activities are involved.
Normative grounds
The UN Interpretive Guide (2024) uses the term of cross-border case, which occurs when a situation results in an alleged business-related human rights adverse impact that involves facts, actors or evidence located in more than one state. Therefore, states need to go beyond the impacts that occur in their territory and consider the scope of their "jurisdiction" in international law. In human rights law, it means figuring out where and for whom states have legal duties to protect these rights and the environment. There are two sides to jurisdiction: one is mandatory—where a country must act to protect rights—and the other is permissive—where it may choose to act. The UNGPs (Principle 25) focuses on the mandatory side, seeking to ensure states grant people access to justice and remedies when their rights are harmed.
If no agreement is reached through an OLGM, rightsholders, stakeholders and companies can try to jointly reach an agreement with the intervention of mediators or collaborate with state bodies to find a solution via a state-based mechanism. The parties involved can appoint an external expert or mediation body. For cross-border cases, the following mechanisms can provide for a preventive measure or a remedy when the adverse impact already materialised.
Mediation in Belgium
At the national level, mediation is an alternative dispute resolution (ADR) mechanism that may settle disputes without using judicial remedies. This can provide faster and less expensive solutions. In Belgium, mediation can be proposed by the parties or a judge in a judicial process. Rightsholders or stakeholders who demonstrate an interest in representing affected persons or communities, and who have standing in the corresponding judicial procedures can propose mediation.
The outcome of mediation can take the form of a settlement, which is reached before an accredited mediator and approved by a judge becomes a judgment with an authentic and enforceable character. The settlement may include redress for the abusive acts, financial compensation, or an end to the abuse. When one of the parties does not comply with the settlement, the enforcement will require the use of judicial mechanisms. Mediation is possible in the following areas:
In civil and commercial disputes
For more information visit this site.
In criminal cases
Mediation can take place before the public prosecutor to seek reparation for moral and material damages.
Ombudsmen
An ombudsman can receive justified complaints against administrative authorities and then seek to mediate with the concerned authority to correct the situation and/or prevent recurring failures.
- The Federal Ombudsman can mediate in conflicts with federal administrations.
- At the subnational level, mediation can be requested before the Flemish Ombudsperson, the Ombudsman of the Region of Wallonia and the French Community and the Ombudsperson for the German-speaking Community for issues relating to these levels of government.
- When human rights abuses affecting children occur, the Flemish Children's Rights Office and the General Delegate of the French Community mediate.
- Local communities and autonomous state-owned companies may have their own ombudsman. An overview can be found here.
Conditions for the mediation of ombudspersons:
- The complaint must first be filed before the public administrative body in question. The administrative body must have totally or partially rejected the complaint or ignored it.
- The complaint may not have already been dealt with by the ombudsman.
- The complaint cannot be anonymous or concern disputes between private persons.
- At the federal level, the complaint must be presented within one year of obtaining knowledge of the authority's act or omission. Subnational ombudsmen may have different deadlines.
In terms of outcome, ombudspersons can report the complaint and make suggestions to administrative authorities to prevent the situation from recurring, but they cannot offer binding solutions. This procedure suspends the deadline for appeal against an administrative decision before the Council of State or other courts.
Mediation against discrimination
Mediation can be sought also for business-related discriminatory acts. These institutions actively promote solutions to avoid future abuses through policy recommendations. Rightsholders or other stakeholders who represent victims or who fight against systematic cases of discrimination can ask for support from these institutions. Three institutions mediate in these cases:
- The UNIA
- The IGVM-IEFH.
- The Flemish Institute for Human Rights
Outcome: Rightsholders or stakeholders can reach a settlement involving redress for the violation, compensation for damage caused by the discriminatory act, and/or an end to the violation. These institutions can also promote and support judicial actions when the case is highly relevant for society as legal precedent, or when it is a serious case (e.g. flagrant hate crime). This will only take place after the mediation option has been exhausted.
Consumer protection
Consumers may file claims individually or collectively to seek a settlement related to a violation of consumer rights. They enjoy detailed protection of their rights in Belgium at the European level and can make use of collective redress actions. If the violation of consumer rights is a criminal offence, it will be reported to office of the public prosecutor.
Conditions:
- The claimant should be a consumer (or his/her representative).
- Only human rights recognized as consumer rights can be invoked.
- The prescription deadline for suing the business before a court is suspended while this complaint is pending.
- The business should first be informed of the claim to try to solve the dispute.
- The complaint may not have already been filed before a court.
- The complaint may not be based on the same facts as any previous complaint which authorities found to be unsubstantiated in fact or law.
How to meet expectations?
The UNGP recommends the implementation of joint oversight mechanisms composed of representatives of businesses, rightsholders and stakeholders, to guarantee more transparency and generate trust. Large companies, investment banks or other organisations operating transnationally (in several countries) are expected to implement their own grievance mechanisms. SMEs can develop simpler grievance mechanisms or participate in grievance mechanisms provided by external organisations. In general, businesses can also use complaint mechanisms created by multi-stakeholder initiatives or by accountability mechanisms of funding institutions, particularly when their activity is complex, or when public and private organisations are involved. If businesses do not provide their own complaint mechanism, they are expected to cooperate in the remediation process. Some indicators have been designed to verify the effectiveness of these mechanisms by measuring the accessibility and receptiveness of the implicated business, and the trust the rightsholder or stakeholder may have in the mechanisms.
Normative grounds
The UNGP (Principle 31) recommends that state-based non-judicial and operational-based grievance mechanisms be:
- legitimate – that is, trusted and accountable for the fair conduct of processes;
- accessible to all rightsholders and stakeholders that may/should use them;
- predictable – that is, they should provide clear information on the procedure, indicative timeframes, expected outcomes and monitoring mechanisms for implementation;
- equitable and transparent – this also refers to the provision of reasonable access to sources of information, advice and expertise;
- in accordance with public interests and rights-compatible – that is, in line with internationally recognised human rights law;
- constructive and capable of influencing policy, to avoid future harm. Analysis of the frequency, patterns and causes of grievances are useful for formulating new policies to ensure non-repetition of abuses.
For more details, see Access to Remedy in Cases of Business-Related Human Rights Abuse: An Interpretive Guide, from the UN Office of the High Commissioner for Human Rights, 2024.
Outcomes from grievance mechanisms in public procurement processes:
So far, no binding norms require the state authorities to consider the outcomes of the grievance mechanisms. However, in public procurement processes, sustainability considerations for the participation and adjudication may involve outcomes from the grievance mechanisms including mediation of the NCPs or of the accountability mechanisms. For Belgium, Law of 17 June 2016 (See Art. 7 and annex II) can be consulted.