Annual Report 2018 | September 2019
The DBA is led by a steering committee on which four key stakeholder groups are represented. In addition, there is an independent Monitoring Committee who monitor annually progress regarding the implementation of the agreement. The Monitoring Committee also supervises the quality and quantity of input from the individual parties and adhering banks and, if necessary,
can ask them for further explanation or clarification, or for missing information.
The Monitoring Committee publishes an annual monitoring report based on the answers to the questionnaire sent to all the individual parties and adhering banks each year. Given the commercial sensitivity, it has been agreed that only aggregated and anonymised information will be made public.
► Monitoring Report
► Steering Group reaction to Monitoring Report
Steering committee response to the monitoring report 2018
The Steering Committee would like to thank the members of the Monitoring Committee (MC) for all the work it has done and for the observations and recommendations stated in the Monitoring Report of 2018.
The Steering Committee would like to emphasize that the implementation of the UNGPs and OECD Guidelines is a continuous process, lasting also after the end date of the DBA.
Some Parties felt the need to respond to particular observations or recommendations made by the MC. Therefore, the Steering Committee has decided to provide individual parties with the opportunity to give their own response, as presented below.
Individual progress Adhering Banks
The Steering Committee acknowledges the MC conclusion that at an individual level, most of the Parties and Adhering Banks have made considerable progress in delivering their obligations under the DBA (MC 203). The efforts of the Adhering Banks can also be noted in the Excel sheet the NVB drafted based on the results of the report (see separate Excel annex).
The Monitoring Committee particularly states that: “the other T2 banks are further advanced in their implementing process and are thus considered mature but they should provide more specific information on their Due Diligence process’’ (MC 37).
The NVB would hereby like to note that the most severe risks of some banks may take place in financial services of the bank outside the scope of the Agreement.. In addition to mitigating these risks, less severe risks occurring within the scope of the Agreement, should also be addressed.
The NVB will continue to assist T2 banks for whom it applies with their implementation of the DBA deliverables. The Steering Committee encourages the DBA Parties to support these efforts where relevant.
The Monitoring Committee states that a continuous issue for cooperation between banks are the actual and perceived limitations imposed by competition law rules (MC 196). Furthermore, the Monitoring Committee states that it is a key problem that it is often unclear what is and what is not allowed (MC 196). The Government and the NVB recognize the limitations on cooperation between banks caused by competition law and they would like to stress that they understand the limitations posed by competition law. Before signing the DBA, the Parties, together with the SER, have discussed the limitations for implementing the DBA under competition law with relevant experts. As a result, several measures were taken, such as the confidentiality protocol, the competition statement that is addressed at the beginning of every meeting and the role of the SER as a clearinghouse.
The Monitoring Committee also states (MC 198) that since the DBA’s purpose is to implement the UNGPs in a multi-stakeholder framework it is essential that if issues with competition law provide obstacles to achieving the DBA goals, they are to be taken head on. The Monitoring Committee encourages the government to play an active role in this respect. In addition, the Monitoring Committee states that if the parties do not find a passable way through the competition law jungle, binding legislation is the most obvious alternative (MC 198).
The government would like to note that the Monitoring Committee has identified that competition law provides an obstacle for achieving cooperation between Adhering Banks (MC 196), not for the implementation of the individual commitments by Adhering Banks. The statement of the Monitoring Committee that binding legislation is an obvious solution to further enhance cooperation between Adhering Banks within the DBA will be taken into account by the Government for the evaluation of the RBC Agreements.
The Monitoring Committee states that: “A similarly thorny issue is client confidentiality. The Nauta report provides a helpful picture of the state of affairs. However, it seems to have been taken as a given by the Adhering Banks, rather than as a starting point for further development’’ (MC 199).
On request of the Parties, Nauta Dutilh has analysed the financial regulatory law, civil law and contractual possibilities
and constraints that may enable or impede Adhering Banks from providing greater transparency within the framework of the DBA.
The Parties and Adhering Banks have different views on how the possibilities to enhance greater transparency provided by the analysis can be used in practice.
The NGOs would like to note that the Nauta Dutilh report contains practical solutions that banks can follow to overcome confidentiality constraints. The NGOs continue to urge the banks to follow-up on these possibilities.
Lack of trust
Moreover, the Monitoring Committee observes a lack of trust and cooperation between the Parties and Adhering Banks (MC 204). The Steering Committee acknowledges and recognizes this lack of trust, and sees this reflected in the insufficient progress on some joint deliverables. The Steering Committee will seek ways to achieve the necessary trust among the Parties and the Adhering banks and is committed to encourage all Parties to make all possible efforts to improve the situation where possible within the last months of the Agreement.
Active role of the government
The Monitoring Committee has not seen evidence of a more active role of the government, by showing leadership and creating a sense of urgency during the implementation of the DBA in Year 2 (MC 205).
In response, the government would like to restate that it is one of the Parties to the DBA on equal footing with the other Parties, in line with the SER advisory report, and it actively participates in all working groups and the Steering Committee. Together with the other Parties, the government takes the responsibility for the progress of the implementation. The government would like to note that the Parties agreed on their respective roles within the DBA and the government has acted in conformity.
The Steering Committee calls on all Parties and Adhering banks to do whatever they can to make sure that the key deliverables, both individual and joint, will be completed by the end of the DBA term and will make sure that they provide guidance where necessary.