accountability counsel guide

8/13/2019 Accountability Counsel Guide

http://slidepdf.com/reader/full/accountability-counsel-guide 1/70

ii

AccountabilityResources for

Communities in

ASIA

Tools for Redressing Human Rights &Environmental Violations by

International Financial Institutions&

Private Corporate Actors

ccountability Counsel www.accountabilitycounsel.org



iii

Accountability Resources for

Communities in ASIA*

Tools for Redressing Human Rights & Environmental

Violations by International Financial Institutions

& Private Corporate Actors

ccountability Counsel

[email protected]

* This Guide was prepared by Accountability Counsel for informational purposes only and doesnot constitute advertising, a solicitation, or legal advice. Transmission of this Guide is notintended to create an attorney-client relationship.



iv

Table of Contents

Institution Accountability Mechanism Page

Glossary of Terms vi

About Accountability Counsel vii

Introduction: How To Use This Guide 1

Part I Strategic Considerations 3

Part II The International Financial Institutions (IFIs) 5

World Bank Group World Bank Inspection Panel (for the

International Bank for Reconstruction(IBRD) & Development andInternational Development Association(IDA))

5

Compliance Advisor/ Ombudsman(CAO) (for the International FinanceCorporation (IFC) & MultilateralInvestment Guarantee Agency (MIGA))

13

Asian Development Bank (ADB) Accountability Mechanism (SpecialProject Facilitator (SPF) and ComplianceReview Panel (CRP))

19

European Bank for Reconstruction andDevelopment (EBRD)

Project Complaint Mechanism (PCM) 26

European Investment Bank (EIB) Complaints Mechanism & EuropeanOmbudsman

32

Part III National Accountability Mechanisms 36

Japan Bank for InternationalCooperation (JBIC) and JapanInternational Cooperation Agency(JICA)

Examiner for Environmental Guidelines 36

Nippon Export and InvestmentInsurance (NEXI)

Examiner for the Guidelines onEnvironmental and Social Considerationsin Trade Insurance

43

Export Development Canada (EDC) Compliance Officer 48



v

U.S. Overseas Private InvestmentCorporation (OPIC)

Office of Accountability 51

Australian Export Finance & Insurance

Corporation (EFIC)

Complaint Mechanism 58

Canadian Office of the ExtractiveSector

Corporate Social Responsibility (CSR)Counsellor

60

Part IV Trainings, Consultations & More Information 63



vi

Glossary of Terms

ADB Asian Development Bank

BPs Bank Procedures (of the World Bank)

BIC Bank Information Center

BCRC Board Compliance Review Committee (of the ADB)

CAO Compliance Advisor/ Ombudsman (for IFC & MIGA)

CEO Chief Executive Officer

CRO Complaints Receiving Officer (of the ADB)

CRP Compliance Review Panel (of the ADB)

CSR Corporate Social Responsibility

EBRD European Bank for Reconstruction and Development

EDC Export Development Canada

EFIC Export Finance & Insurance Corporation (of Australia)

EIB European Investment Bank

ESRP Environment & Social Review Procedure (of the IFC)

IBRD International Bank for Reconstruction & Development

IAP Independent Appeals Panel (of the ADB)

IDA International Development Association

IFC International Finance Corporation

IFI International Financial Institution

IPDP Indigenous Peoples’ Development Plan

IPP Indigenous Peoples’ Plan

IRM Independent Recourse Mechanism (of the EBRD)

ISDS Integrated Safeguard Data Sheet

JICA Japan International Cooperation Agency

JBIC Japan Bank for International Cooperation

MIGA Multilateral Investment Guarantee Agency

MNE Multinational Enterprises

MOFA Ministry of Foreign Affairs (MOFA)



vii

NCP National Contact Point (of the OECD Process)

NGO Non-Governmental Organization

ODA Official Development Assistance (of Japan)

OECD Organization for Economic Cooperation and Development

OPs Operational Policies (of the World Bank)

OPIC Overseas Private Investment Corporation

PAD Project Appraisal Document

PCM Project Complaint Mechanism (of the EBRD)

PDAC Public Disclosure Advisory Committee (of the ADB)

PID Project Information Document

PSD Project Summary Document (of the EBRD)

SPF Special Project Facilitator (of the ADB)



viii

Accountability Counsel is a non-profit organization that works toward environmental andhuman rights accountability in international finance and development through:

Trainings and Claim Support

We conduct trainings about the

mechanisms available to hold internationalbanks and corporations to their social andenvironmental project commitments.

Policy Advocacy

We advocate for stronger accountability

mechanisms to hold banks, corporationsand institutions to the norms and standardsto which they have agreed.

Our Mission

Accountability Counsel defends the environmental and human rights of communities around the world who are harmed by internationally financed development projects. We specialize in non-judicial accountability mechanisms established to receive community complaints. Weaccomplish our mission through: (1) assisting communities to use these mechanisms effectively

and; (2) policy advocacy, ensuring that these complaint offices are accessible, transparent, andfair tools for justice. We also provide resources for communities and organizations seekingassistance with use of accountability mechanisms.

Our approach includes working closely with community members to help voice their complaints.Our work pays particular attention to women, girls, and other marginalized groups, who areoften the most deeply harmed by abuses.

To learn more, please visit our website at www.accountabilitycounsel.org ,or contact us at [email protected] .



1

Introduction: How to Use This Guide

The purpose of this Guide is to provide information for people who are, or who may be,harmed by projects sponsored by:

• international financial institutions,

(such as the World Bank, the International Finance Corporation

(IFC)and regional development banks)

• export promotion agencies, or

(such as the U.S. Government’s Overseas Private InvestmentCorporation (OPIC) and the Japan Bank for International

Cooperation (JBIC))

• private multi-national corporations.(such as Chevron, Rio Tinto, and Shell)

Examples of the types of projects that can cause harm where this Guide may be usefulare: mines; oil and gas extraction, production and pipeline facilities; water privatization projects;and agricultural projects. This Guide is intended to assist community leaders, lawyers, and non-governmental organizations in determining what rights communities have and how they mayaccess accountability mechanisms when those rights have been or may be violated.

This version of the Guide was developed specifically with a focus on Asia to assist NGOs andparticipants in the Advanced Training on Business and Human Rights and Grievance

Mechanisms organized by SOMO, Cividep India, and Business Watch Indonesia.

Question 1: What is the Source of the Harm? Often, there is more than one actorinvolved in a project that may be partly responsible for the harm the project has caused. Forexample, the source of the harm in an oil project may be the oil company operating on theground and project sponsors, such as the World Bank Group’s International FinanceCorporation (IFC) and other commercial banks that have financed the investment.Understanding the sources of harm is an essential first step toward determining a strategy toaddress the harm.

Question 2: What Are Your Rights? Which rights does the harmed community have

under international law, domestic laws, or the rights created at the project level by the policies ofproject financiers (such as the World Bank)? For both of these initial questions, communitiescan seek research assistance from Accountability Counsel, or from other regional, national orinternational NGOs or lawyers.

Question 3: Enforcing Your Rights. If any of these rights are threatened or violated,claims or complaints may be brought through mechanisms discussed in this Guide as well asothers that may apply in the local context.

This Guide discusses what accountability mechanisms are, how they function, and howto initiate a claim or complaint under each mechanism. The term “accountability mechanism” in



2

this Guide means an office in an institution that has been given the authority by that institutionto try to resolve a dispute or determine compliance with the institution’s policy. Accountabilitymechanisms may resolve the dispute formally or informally, and mechanisms use a variety oftools to resolve the dispute, including investigations or formal dispute resolution proceedings.



3

P ART I S TRATEGIC CONSIDERATIONS

Before using any of the mechanisms below, you may wish to discuss the following issues with the community you are assisting.

• Who is affected by the project? What is their definition of community? Some groupsof people may be directly affected, while others may be indirectly affected. The group ofpeople affected may be wider than those in the traditional “community.”

• Community relations: Are there community divisions that could become worsedepending on the course of action chosen? Will community divisions undermine theeffort to address the harm? Or can divisions be overcome so that the efforts arecooperative?

• Who will speak for and lead the group? Will there be a spokesperson? Will the group

operate by consensus, by a majority vote, or by another method?

• What is the end goal? What does the community hope to accomplish? While reachinga consensus in the community about goals is important, possible goals may conflict andcould include conflicting ideas about the project itself. For example, the community’sgoal could be to simply raise awareness locally, nationally or globally about a projectaffecting the community, or it could be to halt the project, or any goal in between. Itmay help to be aware of differing ideas and try to negotiate a common position beforeany action is taken.

• What are realistic expectations for possible outcomes? The results of a formal

complaint to an accountability mechanism may or may not be effective. Eachmechanism has its limitations, and some are more independent and effective than others.Depending on the situation, a realistic outcome may simply be to bring attention to thecommunity’s issue and create a factual record of the harm; or it may be realistic to expectcompensation for harm. In those cases where only a record of the harm is created, thecommunity may be able to use this record to press for change through informal avenues

– like use of the media, NGO or political campaigns. In some cases, despite all efforts, itis important to be aware that there may be no positive outcome as a result of engaging

with one or more of the mechanisms described in this Guide.

• How much time and what resources are available? Some mechanisms require that a

complaint be brought within a certain time period. In addition, the entire process ofbringing a claim may be slow and could be expensive. It may be possible to receivefinancial or other assistance from local or international non-governmental organizations(NGOs).

• Awareness of the available tools: Often, many tactics working together are needed tomake change. Claims to the mechanisms discussed in this Guide will be only part of aneffective campaign. Some additional tools and strategies to consider are:



4

• Mobilizing a local grassroots coalition to support all aspects of the campaign –filing a claim to one of the mechanisms described below has often served as anorganizing tool;

• Making use of contacts within government to put pressure on the people orinstitutions causing the harm;

• If appropriate, attempting to negotiate with the institution or corporation causingthe harm;

• Engaging with the media to cover your issue;

• Filing a lawsuit in a local, foreign or international court against those involved inthe project that caused harm.

• Which tools will be used and in what order? A community may first try to directlynegotiate with the corporation or institution causing the harm. If that does not work,it may develop a media and grassroots campaign, and the campaign may culminate in a

complaint filed to one of the mechanisms described in this Guide. Some of themechanisms require contacting an implementing agency or financier directly beforesubmitting an official complaint. The order of the tools used may vary case by case.

• Information disclosure tools: Many of the institutions discussed in this Guide havepolicies regarding information disclosure that give project-affected people the right tocertain types of information about specific projects or bank policies. The informationdisclosure policies are based on the “presumption of disclosure” – that is, unless thereis an important reason not to disclose information, the staff of the institutions below

will be directed to disclose the information.

• Safety issues: Confidentiality may not always be maintained and retaliation by those who disagree with the community could be a real danger. It is important that affectedcommunities are aware of these risks when discussing strategies. Even if youcoordinate a campaign with international allies to act on your behalf, this may notguarantee safety from retaliatory abuse.

Make A Record. It is important to record all the information the community has aboutthe harm they are experiencing. If possible, take pictures, record events or places on video, takenotes and tape or video record interviews with those harmed. In addition, take detailed notes ofany meetings held with local officials or representatives of corporations or institutions, and keeprecords of all steps that have been taken to resolve your problem. This evidence may be crucial

in demonstrating the harm the community is experiencing or that they expect.

Contact Allies For Support. If you need assistance formulating your strategy or wouldlike more information about any of the issues discussed above, please contact AccountabilityCounsel at [email protected] . We may be able to put you in touch withcommunities that have made accountability strategy decisions in the past or organizations thathave helped them through the process.



5

Inspection Panel QuickSummary

Submit a complaint to the World BankInspection Panel if:

• You are part of a group of two ormore people (or their representative)

who live in an area affected by a WorldBank-financed project;

• You’ve been harmed or are likely to beharmed by a project financed by theBank’s public-sector institutions, IBRDor IDA;

• The harm has been or will be causedby the Bank’s failure to fully comply

with its own operational policies andprocedures;

• You have already attempted to resolvethe issue with Bank management; and

• The Bank loan is less than 95%disbursed.

If your complaint is eligible, the Panel willinvestigate the Bank’s compliance andissue a public report to the Bank’s Board.Bank management will respond with anaction plan to address any findings of non-compliance. The Bank’s Board decides

what to do in the end.

P ART II THE INTERNATIONAL FINANCIAL INSTITUTIONS (IFIS)

IFIs, such as the World Bank and regional development banks, were created to promoteand fund responsible development. Each IFI has internal rules designed to prevent theinstitution from funding projects that harm local communities and the environment. However,

IFIs often fund harmful projects despite these safeguards.

If you have been harmed or believe that you will be harmed as a result of a project, youmay voice your concerns on an international level through filing a complaint to an IFIaccountability mechanism. The filing of a complaint may only result in creation of a record ofthe harm. Sometimes, however, projects are changed or people are compensated as a result offiling a complaint.

The World Bank Inspection Panel

What is the World Bank?

The mandate of the WorldBank Group is poverty alleviation.

The World Bank Group is made up of184 member countries and consists offive different institutions, the:

• International Bank forReconstruction andDevelopment ( IBRD ),

• International Development Association ( IDA ),

• International FinanceCorporation ( IFC ),

• Multilateral Insurance Guarantee Association ( MIGA ), and

• International Centre forSettlement of InvestmentDisputes ( ICSID ).

The IBRD and IDA givegrants and loans to the public sector.

When people talk about the ‘WorldBank’, they are usually referring to theIBRD and IDA. These twoinstitutions provide low-interest loansdirectly to governments for specificprojects or initiatives.



6

The IFC supports private sector investment in developing countries through loans,advisory services and other financial tools. MIGA provides insurance to private corporationsinvesting in developing countries. IFC and MIGA projects have their own accountabilitymechanism, the Compliance Advisor/ Ombudsman (CAO), discussed in the next chapter of thisGuide.

What is the World Bank Inspection Panel?

The World Bank Inspection Panel was the first accountability mechanism of its kind andit began operations in 1994. The Inspection Panel receives Requests for investigation directlyfrom people harmed, or who believe they are likely to be harmed, by World Bank projects orprograms. The harm must be a result of the World Bank’s failure to comply with its ownpolicies and procedures during the design and implementation of projects. The Panel may onlyinvestigate projects financed by the public sector branches of the World Bank Group: the IBRDand IDA. While the Panel’s procedures require you to make a “good faith effort” to resolveyour problem with the World Bank staff before filing a complaint, the Panel itself does not offer

a formal dispute resolution process.

How Does the Panel Operate?

Once the Panel receives a Request, it sends a copy to World Bank Management.Management has 21 days to respond to the allegations in the Request. The Panel then hasanother 21 days to determine whether the Request is eligible and merits an investigation.

The Panel’s determination of eligibility may involve a visit to the project site and meeting with project-affected people. The Panel submits an eligibility report to the World Bank Board ofDirectors, which contains a recommendation about whether the Request should be investigated.

If the Board approves a Panel investigation, the Panel may visit the project site. In fullinvestigations, the Panel gathers further information, talks with affected people, reviews allrelevant documents, interviews people who participated in the project (including Bank staff) andmay hire experts to conduct independent analyses of the issues raised in the Request.

When a Panel investigation is complete, the Panel submits its final report to the Board ofDirectors and to Bank Management regarding whether the Bank is in compliance with its ownpolicies and procedures. Bank Management then has six weeks to submit its ownrecommendations to the Board on what actions the Bank should take in response to the Panel'sfindings. Based on the Panel’s report and Management’s recommendation, the Board makes afinal decision on what action to take, if any. This could include cancelation of the project, stepsto change the project, new compensation programs, or no action at all. There is no right toappeal the Board’s decision. The Panel and Management’s final reports and the decision of theBoard will then be made public.

Determining the Eligibility of Your Request

A Request must meet several criteria to be eligible for an Inspection Panel investigation:

• The Request must be made by two or more people who live in an area affected by a World Bank public sector project.



7

• The Request must relate to harm caused by the Bank’s failure to comply with itspolicies.

• Project-affected people – or their representatives – must first make an effort toresolve the issues with World Bank staff. If Bank staff’s response is not satisfactory,

a Request may immediately be submitted to the Inspection Panel.

• The Inspection Panel only investigates Requests arising from projects financed by theBank’s public sector institutions, IBRD or IDA (see above). The private sectorinstitutions have their own complaint mechanism – the Compliance Advisor/Ombudsman – which is described below.

• The amount of the loan or credit funding the project must less than 95% disbursed.

• The Inspection Panel cannot investigate problems related to project procurement.

The Contents of a Request for Inspection

Requests to the Inspection Panel may be submitted in any language and are generally written in the form of a letter. A suggested complaint format can be found online at www.inspectionpanel.org under “How to file a Request”. Requests should include the followinginformation:

• Identity of Affected People: The Request must include the names of two or moreaffected people, or the name of the organization bringing the Request on theirbehalf. If a representative of the affected people files the Request, the Request mustinclude the representative’s name and proof that the affected people have authorized

the representative to act as an agent on their behalf. Affected people may requestthat the Inspection Panel keep their names confidential if they fear that they will beharmed as a result of speaking out.

• Description of the Project at Issue: The Request should include the name anddescription of the World Bank (IBRD or IDA) project or program, if known.

• Description of Harm: Describe the harm that the project has already caused or theharm that is expected to occur. Harm may be to people, to the resources theydepend on, or to their environment.

• Describe Why the World Bank is Responsible for the Harm: In order toinvestigate your Request, the Panel must understand how the World Bank (IBRD orIDA) has caused or may cause harm by violating its own policies. If possible,describe which policies you believe have been or are being violated. If you cannotidentify specific policies, you may explain why you believe the World Bank isresponsible for the harm.

• Describe Steps You Have Taken to Address the Problem: Your Request mustdescribe the steps you have taken to contact World Bank staff, a description of theBank’s response (if any), and why the response did not resolve the problem.



8

Supporting documents of your “good faith” attempt to resolve the problem shouldbe submitted (such as copies of correspondence or meeting notes).

• Attach Relevant Documents or Other Evidence to Your Request: Along withyour letter containing the information above, a Request to the Inspection Panel

should include copies of any evidence that you believe supports your Request. Forexample, you may include photographs of the project site, statements from affectedpeople, or copies of letters sent to the Bank and their response(s), if any.

World Bank Policies and Procedures

The Inspection Panel only has the power to analyze whether the Bank violated its ownpolicies and procedures in financing a project. Understanding Bank policies can be important tobuilding a strong Request. Two types of World Bank policies that may apply in submitting aRequest for Inspection are Bank Procedures (BPs)1 and Operational Policies (OPs).2 As the

World Bank describes:

• Bank Procedures (BPs) – “explain how Bank staff carries out the policies set out inthe OPs. They spell out the procedures and documentation required to ensure Bank-

wide consistency and quality.”

• Operational Policies (OPs) – “establish the parameters for the conduct ofoperations; they also describe the circumstances under which exceptions to policy areadmissible and spell out who authorizes exceptions.”3

The OPs that are most relevant to reviewing projects for social and environmental issuesare found on the World Bank’s website4 and include policies on:

• Environmental Assessment (4.01): Standards for evaluating potentialenvironmental risks, impacts, and alternatives.

• Natural Habitats (4.04): Protections for biodiversity and conserve natural habitats.

• Pest Management (4.09): Protections against the misuse of harmful pesticides.

• Indigenous Peoples (4.10): Standards for protecting indigenous communities,including free, prior, and informed consultation of affected community.

1 See World Bank “Bank Procedures” at:http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,menuPK:4564187~pagePK:64719906~piPK:64710999~theSitePK:502184,00.html. 2 See World Bank “Operational Policies” at:http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,menuPK:4564185~pagePK:64719906~piPK:64710996~theSitePK:502184,00.html.3 See World Bank Definitions at:http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMDK:20249090~menuPK:64701643~pagePK:64141683~piPK:64141620~theSitePK:502184,00.html.4 See World Bank Table of Contentshttp://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,menuPK:64701637~pagePK:51628525~piPK:64857279~theSitePK:502184,00.html



9

• Involuntary Resettlement (4.12): Framework for resettlement plans, includingstandards on information on disclosure, consultation, and compensation.

• Gender and Development (4.20): Standards regarding the gender dimensions ofprojects.

• Forests (4.36): Protection against deforestation and integration of forestry withsustainable economic development.

• Dam Safety (4.37): Standards regarding the design and supervision of damconstruction, as well as safety measures for operating dams.

• Project Supervision (13.05): Accountability for World Bank staff in ensuring thatborrowing governments are following policies and implementing projects.

• Country Systems (4.00): Substitutes use of the World Bank's Operational Policies

for those of the borrowing country's standards when they are deemed acceptable.(Note: this policy is still in the testing phase.)

World Bank policies change periodically. Several key policies are currently under review, with new policies expected after June 2014. The policies that apply to a project are those that were in effect when the loan agreement was signed between the World Bank and the country in which the project is taking place (the “borrower”).

The World Bank’s Information Disclosure Policy

The World Bank Group’s Information Disclosure Policy 5 requires that the public have

access to a wide range of documents, including information about particular loans, investments,grants and guarantees, such as Environmental Assessments (EAs), Indigenous Peoples’ Plans &Indigenous Peoples’ Development Plans (IPDPs), Integrated Safeguard Data Sheets (ISDSs),Loan Agreements, Project Appraisal Documents (PADs), Project Information Documents(PIDs), and Resettlement Plans.

These and other documents should be available on the World Bank Group website www.worldbank.org and at Public Information Centers around the world.6 If you have troubleaccessing a document that should be public, the World Bank has a Disclosure Help Desk thatyou may email for assistance at [email protected] .

Reasons to Use the Panel Process

Submitting a complaint to the Panel could:

• help raise awareness about problems from a World Bank project, both locally andinternationally;

5 World Bank Information Disclosure Policy 2002, available online athttp://www1.worldbank.org/operations/disclosure/documents/disclosurepolicy.pdf .6 To locate the nearest Public Information Center, visithttp://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/EXTPIC/0,,menuPK:64156620~pagePK:64156679~piPK:64156642~theSitePK:439948,00.html and http://www.worldbank.org/disclosure.



10

• allow you to directly voice your concerns to the World Bank about a project;

• lead to a formal investigation by the Panel;

• lead to an official determination by the Panel about whether or not there have been violations of World Bank policy; and

• lead to action by the World Bank’s Board to correct the violation.

Limits to Use of the World Bank Inspection Panel

The World Bank Inspection Panel is not a court of law – the Panel can submit findingsto the Board of Directors, but the Board has the final say on how it will act once the Panel issuesits report. The Panel may only investigate Requests dealing with World Bank policy violations –not misconduct of a government or a private actor where there was no alleged wrongdoing onthe part of the Bank. If an issue has already been addressed by the Panel, it may only beaddressed again if new evidence or circumstances are presented.

Furthermore, the Panel may only investigate compliance with Bank policy; it does nothave a dispute-resolution system, which many other accountability mechanisms have. Manypeople find this “compliance only” approach less helpful in addressing immediate communityconcerns. In recent years, members of the Inspection Panel have given Bank staff theopportunity to “problem solve” before determining eligibility of complaints. AccountabilityCounsel views this as problematic because there is no clear procedure for this type of informaldispute resolution, which makes it subject to possible abuse.

Following Up on Your Complaint

Once the complaint has been submitted, if you do not hear from the Inspection Panel,

check with the Panel to ensure that the process is moving along. It is often helpful to speak tomembers of the World Bank Board, who will ultimately decide what to do with the InspectionPanel’s report. The Board may ask the Panel to monitor any changes to the project as a result ofthe Panel’s investigation. Organizations like US-based Bank Information Center may be able tohelp you contact Board members. If the Panel concludes the Bank has violated its rules, ensurethe Board follows through with any commitments made to remedy the harm (or potential harm)of the project.

Examples of Inspection Panel Requests

The Cambodia Forest Conservation and Control Project7

The Inspection Panel received a Request to investigate the Cambodia ForestConservation and Control Project (the “Forest project”) from forest-dependent communities inCambodia in 2005. The Requesters wanted to maintain confidentiality and asked that the NGOForum on Cambodia act on their behalf. The Requesters claimed that the Forest project,financed by an IDA Credit, violated the World Bank’s policies on environmental assessment(OP/BP 4.01), forestry (OP/BP 4.36), and indigenous peoples (OD 4.20), among others. The

7 For details about this project and access to the Inspection Panel documents, visithttp://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/CAMBODIAEXTN/0,,contentMDK:20978477~pagePK:141137~piPK:141127~theSitePK:293856,00.html.



11

Requesters claimed that the project benefited loggers with track records of illegal logging of theforest upon which the Requesters depend for their livelihood. The Requesters argued that the

World Bank’s failure to follow policies, including failure to consult with local people and conducta proper environmental assessment, would cause harm to the forest and their livelihoods.

The Inspection Panel determined that the Request was eligible and conducted a fullinvestigation. The Inspection Panel’s March 2006 Report found violations of World Bankpolicies, including that the project had failed to “take on the key objective of using the potentialof forests to reduce poverty.”8 World Bank Management responded to the Inspection Panel’sReport, acknowledging policy violations and proposed corrective actions to be taken. The Bankhas also issued “lessons learned” for project design and implementation.

The Bank then claimed to be working with civil society groups in the region to addressthe forestry sector issues raised in the Request. However, because the loan for the project hadclosed (and the Bank claimed to no longer have control over the project), the Bank stated thatnothing can be done to change the problems raised in the complaint. Therefore, the people

negatively affected by the Cambodia Forest Project may not themselves have seen the benefit ofhaving brought the Request, but they may have had a positive impact on the way World Bankforestry sector projects are carried out in Cambodia in the future.

The India: NTPC Power Generation Project9

In 1997, a group of subsistence farmers from the Singrauli region of central India filed aRequest for Inspection with the Panel. The people were among 370 families that had beeninvoluntarily resettled by the National Thermal Power Corporation (NTPC) to make way for

World Bank-funded power plants and associated works. The Requesters claimed that pastprojects in Singrauli had caused serious environmental damage, and forced resettlement had left

the poorest people in the region without homes and without their livelihoods. According to theRequest, the World Bank had failed to remedy these problems, and the current project wasmaking the damage to people’s livelihoods and the environment even worse.

Bank Management responded to the Request with a plan to take corrective action toaddress the Requesters’ concerns and broader issues with the project. Meanwhile, people inSingrauli were still suffering from forced removal from their homes and intentional cropdestruction. The Panel recommended that the Bank Board of Directors authorize a fullinvestigation, but the Board authorized only a limited investigation from Washington D.C.Because the Panel was not able to visit the project site again, it had to rely on secondary sourcesof information during its investigation. Nevertheless, the Panel found serious violations of the

involuntary resettlement and environmental assessment policies. The violations were partiallydue to the fact that the loan had been pushed forward too quickly, and without sufficient time toidentify and plan for environmental damage and involuntary resettlement of hundreds offamilies. The Panel also found that supervision policies had been violated, especially in regard tothe resettlement and rehabilitation components of the project, and that there had been ashortage of qualified staff working on these aspects of the project both within the Bank, and

8 Cambodia Forest Conservation and Control Project Investigation Report at xvi, available online athttp://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/CAMBODIAFINAL.pdf .9 India: NTPC Power Generation Project Report on Investigation, available online athttp://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/NTPCInvestigationReport.pdf .



12

even more so, within NTPC. Despite past failures, NTPC had failed to develop the capacity tocomply with its obligations to the communities affected by its projects in Singrauli.

The Board of Directors decided that an action plan prepared by Bank Management tocorrect some of the problems raised in the Request should be implemented and the Board

agreed to review its progress. The Board also took the unprecedented step of appointing agroup of Indian experts, called the Independent Monitoring Panel, to oversee implementation ofa new resettlement and rehabilitation plan. Some components of the new resettlement plan wereimplemented, and significantly, some families did receive better compensation packages thanoffered before, including small plots of land rather than one-time only cash payments, as a resultof the Inspection Panel Request. Requesters also believed the Inspection Panel’s visit halted theuse of force by NTPC authorities.10 However, other aspects of the resettlement plan were neverimplemented despite the Panel’s report and the work of the Monitoring Panel. Many families inSingrauli still suffer from a lower standard of living than they had before the project.

As with many Requests to the Inspection Panel, these examples illustrate the mixed

results for project-affected people that can come from brining such Requests. Some of theproblems with the projects were addressed, and others were not. Nonetheless, the Requests mayhave assisted the communities in getting their voices heard.

How to Contact the World Bank Inspection Panel

Requests may be sent to the nearest World Bank country office or filed in person with a World Bank resident representative, which will forward the Request to the Panel. Requests mayalso be sent via mail, email or fax directly to the Panel, at:

The World Bank Inspection Panel

Mail Stop: MC10-10071818 H Street NW, MSN MC10-1007

Washington, D.C. 20433, U.S.A.Fax: +1 202 522 0916Phone: +1 202 458 5200email: [email protected]

You may address questions to the Inspection Panel via telephone to +1 202 458 5200.

10 Interview of Requesters Conducted by Tess Bridgeman, January 2004 (Singrauli, India).



13

C O Quick Summary

Submit a complaint to the CAO if:

• You are a person, group ororganization (or their representative);and

• You have been or are likely to beaffected by the social or environmentalaspects of an IFC or MIGA project.

If the CAO determines that your

complaint is eligible, it will conduct anassessment of the complaint to develop anunderstanding of the positions of theparties and determine which CAO role theparties are seeking. If Dispute Resolutionis triggered, the CAO will facilitate aprocess designed to address the issues inthe complaint with the goal of reaching amutually agreeable solution.

If Compliance is triggered, or if noagreement is reached or implementedthrough Dispute Resolution andcomplainants seek Compliance, the CAOconducts an appraisal and may conduct afull compliance investigation to determineadherence to IFC and MIGA social andenvironmental policy. Complianceinvestigation reports are made public andthe CAO monitors changes until theIFC/MIGA take steps to resolvenoncompliance.

The Compliance Advisor/Ombudsman (CAO)11

What is the Compliance Advisor/ Ombudsman (CAO)?

The CAO receives complaintsabout projects financed by the IFC orMIGA, the branches of the World BankGroup that provide loans andguarantees to the private sector. TheCAO has three functions:

• The Dispute ResolutionFunction – a problem-solvingmechanism that seeks to resolvedisputes in a mutually agreeable

and flexible way without findingfault. The goal of disputeresolution is to improve social andenvironmental outcomes on theground. This function is usedonly when the company agrees to

voluntarily participate.

• The Compliance Function – theCAO may oversee complianceinvestigations to ensure that IFC

and MIGA have complied withtheir social and environmentalpolicies, procedures andguidelines. This function is usedif agreement cannot be reachedusing dispute resolution or if oneor more parties choose to use theCompliance function.

• The Advisor Function – theCAO gives advice to the Presidentof the World Bank Group and staff of

IFC and MIGA about particular projects or policies.

The CAO considers the Dispute Resolution function its primary and most importantresponsibility. The Dispute Resolution function was designed to respond to complaints frompeople who are affected by projects, using a flexible, problem-solving approach to resolve theissue.

11 See http://www.cao-ombudsman.org/.



14

How to File a Complaint with the CAO12

Any individual or community directly impacted by an IFC or MIGA project, or likely tobe directly affected, may bring a complaint to the CAO. Representatives may file a complaint on

behalf of affected people, provided they clearly identify the people on whose behalf thecomplaint is made and submit proof of the representation (please note issues with the CAO andrepresentation below).

A complaint must meet the following eligibility criteria to qualify for CAO assessment:

• The complaint must relate to an IFC or MIGA project,

• It must relate to social or environmental harm associated with that project,

• It must demonstrate that they have been or are likely to be affected by actual orpotential social or environmental impacts on the ground, and

• It must not relate to project procurement decisions.

The following information should be included in a complaint to the CAO:

• the identity of the complaining individual or group,

• whether the complainant wishes their identity for any information in the complaintto be kept confidential (stating reasons),

• details about the project,

• the harms caused or expected,

• the IFC and/or MIGA policies believed to have been violated (if any – and this is

not required for a CAO complaint),• a description of steps already taken to resolve the problem, and

• any evidence that supports the complaint.

A complaint may be submitted in any language and may be filed with the CAO at anytime -- even after the entire loan amount has been paid out. However, the IFC and MIGA willhave less ability to correct a problem once the entire loan has been distributed if the CAOprocess results in recommended changes.

How Does the CAO Operate?

If you submit a complaint in English then the CAO should inform you within 15 days ofreceiving the complaint whether it is eligible for further assessment. If your complaint is in adifferent language, the CAO may extend this timeline to allow for translation.

If your complaint is found eligible, you will enter an assessment period of up to 120 days,

12 The CAO website contains information on how to bring a complaint. See http://www.cao-ombudsman.org/howwework/filecomplaint/. In addition, the Center for International Environmental Law(CIEL) has written A Handbook on the Office of the Compliance Advisor Ombudsman of the International Finance Corporationand Multilateral Investment Guarantee Agency (Discussion Draft September 2000), available online athttp://www.ciel.org/Publications/CAOhandbook.pdf .



15

in which the CAO will review the issues raised, reach out to parties, and determine which CAOroles the parties seek to initiate. You will have the option of addressing the problems in thecomplaint through the Dispute Resolution process or requesting that the complaint go directlyto Compliance. The Dispute Resolution process is a dialogue between the complainants, theproject sponsor, and other local stakeholders to try to reach a solution to the issues raised in the

complaint. The Dispute Resolution process is voluntary, so it can only move forward if allparties agree. Dispute Resolution works with independent mediators who can facilitate adiscussion and mediate disputes between the parties.

If either the project sponsor or the affected people do not wish to participate in theDispute Resolution process, or if the process does not lead to an agreement, or if an agreementis not implemented, the complaint is transferred to Compliance. In this phase, the CAO firstconducts a 45-day appraisal of the complaint to determine whether a full investigation is

warranted. The appraisal process focuses on whether the complaint raises substantial concernsregarding environmental and/or social outcomes, and/or issues of systemic importance toIFC/MIGA. It is important to note that the CAO may decide to close a case at the appraisal

phase even if the project has caused harm.

If the CAO decides to conduct a full investigation, the Appraisal Report and the Termsof Reference will define the scope of the investigation. If addition issues emerge, they aresubject to a separate appraisal at the discretion of the CAO Vice President. The CAO willmanage the compliance investigation process, including any hiring of external specialists asnecessary. The Compliance team will prepare a report, which will include findings with respectto noncompliance and any verifiable adverse environmental and/or social outcomes. A draftInvestigation Report will be circulated to IFC/MIGA for comment, after which the CAO willfinalize the report and submit it again to IFC/MIGA for an official response. The CAO willforward them for the Report and IFC/MIGA’s response to the World Bank President, who will

provide clearance for the Report. At that time, the Investigation Report and IFC/MIGA’sresponse will be shared with the World Bank Board of Directors, posted on the CAO’s websiteand shared with complainants. The CAO continues to monitor the case until the IFC/MIGAtake actions that assure the CAO that they are addressing any findings of noncompliance.

IFC & MIGA Policies and Procedures That May Apply in CAO Complaints13

Although the CAO may investigate a complaint even if no IFC or MIGA policy violations are described in the complaint, provisions of the following policies may apply. TheIFC revised its policies in January 2012, resulting in a new policy framework. You may need torefer to the previous set of policies (from 200614 ) if the project causing harm was developed

before the new policies came into effect. Provisions of the following policies may apply:

• IFC Performance Standards on Social & Environmental Sustainability(“Performance Standards” or “PS”): The IFC’s eight Performance Standardscover the IFC’s rules on social and environmental assessment and management

13 The policies are included in the Appendix to this Guide and are available online at:http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability /Sustainability+Framework/. 14 The IFC’s 2006 Policy Frameowrk is available here:http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability /Sustainability+Framework/Sustainability+Framework+-+2006/.



16

systems (PS1); labor and working conditions (PS2); pollution prevention andresource efficiency (PS 3); community health, safety and security (PS4); landacquisition and involuntary resettlement (PS5); biodiversity conservation and thesustainable management of natural resources (PS6); indigenous peoples (PS7); andcultural heritage (PS8).15 Beyond these rules, projects must also comply with

applicable national and international laws.16

• IFC Policy on Environmental & Social Sustainability (the “SustainabilityPolicy”): This policy applies to both the IFC and its clients (corporations or othergroups who receive financial support from the IFC), and describes how they shouldimplement the Performance Standards described above. For example, this policydescribes how IFC projects should be categorized and the level of due diligencerequired based on different levels of categorization (“A” for significant impacts; “B”for limited impacts; and “C” for minimal or no impacts; and “FI” for financialintermediary lending, with subcategories of FI-1, FI-2 and FI-3).

• IFC Environment & Social Review Procedure (the “ESRP”): This policyprovides instructions for IFC staff to ensure environmental and social sustainabilityof projects.

• IFC General and Sectoral Environmental, Health, and Safety Guidelines: TheIFC has 28 sector-specific environmental health and safety Guidelines that coversuch topics as electric power transmission, hazardous materials management,pesticide handling and roads & highways.17

• MIGA’s Environmental Assessment Policy: This policy describes howenvironmental assessments must be carried out for MIGA projects.

The IFC’s Information Disclosure Policy

The IFC’s Disclosure Policy entitles the public to information and documents includingEnvironmental & Social Review Summaries, Summaries of Proposed Investments, Country

Assistance Strategies (prepared jointly with the World Bank), Policy & Performance Standardson Social & Environmental Sustainability, Sustainability Reports and Annual Reports. TheDisclosure Policy also entitles the public to information not normally disclosed if , in “exceptionalcircumstances,” there is a strong case that such information would serve the public interest.18

15 Seehttp://www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability/Sustainability+Framework/Sustainability+Framework+-+2012/Performance+Standards+and+Guidance+Notes+2012/16 IFC Performance Standards on Environmental and Social Sustainability, Introduction, ¶ 5 (January 1, 2012).17 The IFC’s Sectoral Guidelines are available here:http://www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability/Sustainability+Framework/Environmental%2C+Health%2C+and+Safety+Guidelines/.18 What IFC Discloses, onlineat:.http://www.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/ifc+projects+database/projects/disclosed+projects See also BIC’s Toolkit for Activists, http://www.bicusa.org/resources/capacity-building-and-tools/tools-for-activists/



17

The IFC has a Disclosure Policy Advisor19 to ensure that IFC disclosure rules arefollowed. If you feel that you have been wrongly denied information, you can submit a “Requestfor Disclosure of Information” online (through a Microsoft Explorer Internet browser only) athttp://www.ifc.org/ifcext/corresmanage.nsf/frmInformationRequest?OpenForm, or call or faxthe IFC for information at phone: +1 202 473 3800, fax: +1 202 974 4384. The Advisor “will

review the complaint and endeavor to respond to the requester within thirty calendar days ofreceipt of the complaint, unless additional time is required because of the scope or complexity ofthe complaint.”20 Many communities have found that the IFC does not strictly follow itsdisclosure policy and that it is difficult to obtain information.

Limits to Use of the CAO

Some communities have seen problems with the CAO process that may limit itsusefulness. In particular, communities seeking help from their own representatives in a DisputeResolution process have had the CAO limit the role of their representatives, lessening theircapacity to address concerns. Additionally, the CAO has frequently declined to conduct full

compliance investigations even where communities harmed by IFC/MIGA projects have shownevidence of harm and have requested investigations.

Example of a CAO Complaint

In April 2005, MIGA provided $13.3 million of political risk insurance to Canadiancompany Anvil Mining for their operation of a the Dikulushi Copper-Silver Mining Project inthe Democratic Republic of Congo (DRC). Prior to MIGA’s involvement, Anvil had providedlogistical support to the Congolese army during their take over of a town near where Anvilexported their materials. According to the CAO summary of the case, during the takeover, “thearmed forces of the DRC allegedly killed civilians, including by summary execution, looted, and

carried out other crimes including extortion and illegal detention.”21

After an investigationthrough its compliance audit function, the CAO found that MIGA’s due diligence “did notaddress whether the project might either influence the dynamics of conflict or whether securityprovision for the project could indirectly lead to adverse impacts on the local community.”

The CAO also found that MIGA’s “follow-through on some social aspects was weak”and that “MIGA did not fully understand the implications for its client of implementing the

Voluntary Principles on Security and Human Rights (as required by the Management Responseto the Extractive Industries Review), nor did it assess whether its client had the capacity toproperly implement them.” Finally, the CAO noted that MIGA did, for the first time, take stepsto “engage with NGOs at the project level and to include provisions in the Contracts of

Guarantee to reinforce the potential local benefits.”22

This example again shows that complaints to the accountability mechanisms in thisGuide can lead to mixed results for project-affected people. While the CAO did makerecommendations about how MIGA should be implementing its policies differently, there was

19 See http://www1.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/ifc+projects+database/projects/aips+added+value/projectdisclosurepolicyadvisor.20 IFC Policy on Disclosure of Information, ¶ 37.21 See http://www.cao-ombudsman.org/cases/case_detail.aspx?id=94.22 See http://www.cao-ombudsman.org/cases/case_detail.aspx?id=94.



18

no change in practice on the ground as a result of the filing of this claim. The claim broughtattention to the issue, but the CAO – with its limited mandate – did not have the authority orability to bring the perpetrators of this massacre in the Congo to justice.

How to Contact the Office of the CAO

Complaints to the CAO can be submitted in any language, although complaints inEnglish are preferred. They can be submitted via mail, email, or fax to:

Office of the Compliance Advisor Ombudsman (CAO)2121 Pennsylvania Avenue, NW

Washington, D.C. 20433, U.S.A. Tel +1 202 458 1973Fax +1 202 522 7400Email: [email protected]

For guidance on how to write a complaint, see the ‘Complaint Letter Template’http://www.cao-ombudsman.org/howwework/filecomplaint/documents/Complaintlettertemplate.pdf .



19

DB Quick Summary

Submit a complaint to the ADB Accountability Mechanism if:

• You are part of a group of two ormore people; and

• You have been directly harmed or arelikely to be harmed by an ADB-supported project.

The Complaints Receiving Officerresponds to your complaint and forwards

it to the function of your choosing( Compliance Review – the CRP - or ProblemSolving – the SPF).

The Special Project Facilitator (SPF)determines eligibility, attempts to facilitatean agreement between the parties involved,and monitors the implementation of thisagreement. You can walk away from thisprocess at any time and request aCompliance Review .

The Compliance Review Panel (CRP)determines eligibility, conducts aninvestigation, and analyzes whether the

ADB has complied with its own policiesand procedures. The CRP presents itsfindings to the ADB Board, which decidesthe proper action. Once you begin theCompliance Review process, you cannot thenuse the Problem Solving function for thesame issues, unless the CRP finds your

complaint ineligible.

The Asian Development Bank (ADB) Accountability Mechanism

What is the AsianDevelopment Bank (ADB)?

The ADB is a multilateraldevelopment bank that is owned by 67member countries, 48 from Asia and 19from outside of Asia. The ADB’smission is to alleviate poverty in Asiaand the Pacific through loans, technicalassistance, grants, guarantees (insurance)and investments intended to createeconomic growth in its developingmember countries.23

What is the ADB’s Accountability Mechanism?

The ADB’s current Accountability Mechanism went intoeffect on May 24, 2012.24 TheMechanism consists of two functions:

• The Problem Solving Function,run by the Special ProjectFacilitator (SPF), and

• The Compliance ReviewFunction, run by the ComplianceReview Panel (CRP).

All complaints go to the ComplaintsReceiving Officer (CRO). The CROthen forwards them to either the SPF orthe CRP, depending on which functionis requested in the complaint.

How to File a Complaint withthe ADB25

Two or more people who are “directly, materially, and adversely affected by an ADB-assisted project” may file a complaint to the ADB Accountability Mechanism. A representativemay file on behalf of an affected group if the affected people are clearly identified and the

23 See http://www.adb.org/about/overview .24 The current Accountability Mechanism Policy replaces the previous 2003 Accountability Mechanism Policy,

which expired on May 23, 2012.25 See Accountability Mechanism Policy 2012, available at http://www.adb.org/sites/default/files/accountability-mechanism-policy-2012.pdf .



20

representative provides proof that they are authorized to represent. A nonlocal representativemay file on behalf of an affected group only in special cases where local representation isunavailable and the Accountability Mechanism, which has broad discretion, agrees to thearrangement.

A complaint must meet the following eligibility criteria to qualify for either theProblem Solving or Compliance Review functions:

• The complaint must relate to harm caused by an ADB-funded project. For acomplaint that requests Compliance Review, the harm must be caused by the ADB’s

violation of its own policies.

• Project-affected people – or their representatives – must have made a good faitheffort to resolve the issues with the ADB’s Operations Department prior to filing thecomplaint. This means you should contact the Operations Department andcommunicate your concerns and the remedy you are seeking before filing acomplaint, and keep a record of your communications and the Operations

Department’s response.• A complaint cannot be filed after two years have passed from the grant or loan

closing date.

• The complaint must not relate to project procurement decisions.

The ADB prefers complaints to be submitted in English, but will accept complaints inany official or national language of an ADB developing member country. Complaints shouldcontain the following information:26

• the identity and contact information of the affected people, and of their

representative if they have one,• whether the complainants wish to keep their identities confidential,

• whether the complainants wish to pursue Problem Solving or Compliance Review,

• details about the project, including name, location, and a brief description,

• a description of the direct and material harm that has been, or is likely to be, causedto the complainants,

• an explanation linking the harm to specific policy violations by the ADB (if possible – this is not required for the problem-solving function),

• a description of the good faith efforts to address the problems first with the ADB’s

operations department (this is not required for the compliance review function),• the desired outcome or remedies, and

• any other relevant information or supporting documents.

A complaint that requests Compliance Review after a Problem Solving process hasalready occurred should also include a description of the Problem Solving process and anyresults achieved.

26 See ADB Accountability Mechanism Policy 2012 , ¶ 150-51, available athttp://www.adb.org/sites/default/files/accountability-mechanism-policy-2012.pdf .



21

How Does the Accountability Mechanism Operate?

After the CRO receives a complaint, the CRO acknowledges receipt to the complainantsand provides them with an information packet about the Accountability Mechanism. Thecomplainants will have 21 days to change their minds regarding which function to use (Problem

Solving or Compliance Review). The CRO then forwards the complaint to the SPF for ProblemSolving or the CRP for Compliance Review.

The Problem Solving function is designed to assist project-affected people to solvespecific problems using informal, consensus-based methods, with the participation of the projectsponsor and all other interested parties.

The SPF will determine the complaint’s eligibility for problem solving based on theeligibility criteria discussed above, and based on the SPF’s analysis of whether its involvementmay be useful to resolve the dispute.

If the SPF finds the request eligible, it will conduct a review and assessment byinterviewing and holding meetings with complainants, reviewing project documents, and meeting

with ADB staff. The SPF will issue a report setting out the positions and goals of the parties andsuggesting methods and a timeframe for resolving the dispute. The parties decide together on acourse of action to attempt to resolve the dispute, which can include joint fact-finding, dialoguesand mediation. The parties then carry out the agreed actions, with the goal of reaching anagreement.

Either party can end the problem solving process at any time if they decide thatcontinuing the process will not be useful. The SPF can also conclude the process after the initialreview and assessment if it finds that additional problem solving will not be useful.

If the parties reach an agreement through problem solving, the SPF will monitor theimplementation of the agreement. After the parties reach an agreement, or after the problem-solving process has ended for any reason, the affected people may request that their complaintbe sent to compliance review.

The Compliance Review function involves an analysis of whether the ADB has violated its own policies or procedures in a particular project.27 The CRP conducts aninvestigation to determine whether the ADB complied with its policies in formulating,processing, or implementing a project, and if not whether its non-compliance resulted in directand material harm to the complainant.28

When the CRP receives a complaint, it will forward the complaint to Management andrequest a response within 21 days. CRP will then determine the eligibility of the complaint basedon information in the complaint itself, in Bank Management’s response, and from otherdocuments. If the CRP finds the complaint eligible, the CRP must ask the Board to authorize acompliance review. The CRP investigation may include a site visit, meetings with relevantparties, and desk reviews. The length of the investigation will depend on the complexity of the

27 See The ADB Compliance Review Panel Homepage at http://compliance.adb.org/.28 See The ADB Accountability Mechanism Policy 2012, ¶ 145, available athttp://www.adb.org/sites/default/files/accountability-mechanism-policy-2012.pdf .



22

request and the scope of the alleged policy violations.

After CRP completes its investigation, the CRP will produce a report with its findings. Ifthe CRP finds that the ADB violated its policies, Bank Management will propose ways to bringthe project into compliance. The CRP will provide comments on Management’s proposed

actions, and the Board will make a final decision about what actions the ADB will take to correctthe violations. The CRP will monitor the implementation of any remedial actions.

Policies and Procedures That May Apply in Claims to the ADB Mechanisms

Your complaint should reference any ADB policies or procedures that you believe the ADB has violated, or is likely to violate. This is required for the complaint to be eligible forCompliance Review.

ADB policies include the Safeguard Policy Statement, which includes sections onEnvironment, Involuntary Resettlement and Indigenous Peoples, as well as Sector Policy Papers

on topics such as Energy, Forestry, and Water.29

The ADB’s Operations Manual contains moredetailed instructions for bank staff on how to implement these various policies.30

For projects that have been proposed but have not yet been implemented, the applicablepolicies are those that were in effect when the complaint was filed. For existing projects, thepolicies that apply are those that were in effect when the ADB’s Board of Directors approvedthe project.

For more information on ADB policies, please see NGO Forum and Bank InformationCenter’s “Unpacking the ADB: A Guide to Understanding the Asian Development Bank.”31

The ADB’s Information Sharing and Disclosure Policy

The ADB’s Public Communications Policy of 201132 entitles the public to receiveinformation about ADB-assisted activities, as well as provide feedback to the ADB about projectdesign and implementation. Under this policy, the public has the right to a wide variety ofdocuments, including Loan Agreements, Project Agreements, Social and EnvironmentalMonitoring Reports, Initial Poverty and Social Assessments, Indigenous Peoples Plans (IPP),Environmental Assessments, Project Data Sheets (PDS), Project Safeguard Documents, Legal

Agreements for Sovereign Projects, and Resettlement Plans.

The ADB provides public access to the information above through its Public

Information and Disclosure Unit, known as the “InfoUnit.” You may request informationthrough the InfoUnit website at http://adb.org/email/17162/field_email or you may contactthe InfoUnit by mail or email at the below address. You may also contact your nearest ADBCountry Office to request information.33

29 See ADB Policies, available at http://www.adb.org/Development/policies.asp. 30 See ADB Operations Manual, available at http://www.adb.org/documents/operations-manual.31 The BIC ADB Toolkits for Activists, including the Guide in five languages, is available for download fromhttp://www.bicusa.org/resources/capacity-building-and-tools/unpacking-adb/ 32 See http://www.adb.org/sites/default/files/pcp-2011.pdf . See also BIC’s ADB Toolkits for Activists,http://www.bicusa.org/resources/capacity-building-and-tools/unpacking-adb/ 33 A list of Country Offices is available at http://www.adb.org/about/departments-offices.



23

The InfoUnit’s contact information is:

Public Information and Disclosure Unit (InfoUnit)

Department of External Relations

Asian Development Bank6 ADB Avenue, Mandaluyong City

1550 Metro Manila, [email protected]

If you believe that you have not been given information that you deserve, you may makea written request for review to the Public Disclosure Advisory Committee (PDAC) online athttp://www.adb.org/email/17160/field_email or by writing to PDAC at the InfoUnit addresslisted above.

If the PDAC upholds the denial of your request, you may file a written appeal to theIndependent Appeals Panel within 90 days. Appeals may be addressed to the Independent Appeals Panel and submitted by mail, email, or fax to the InfoUnit address above.

Limits to Use of the ADB Accountability Mechanism

Some communities have encountered problems with the ADB AccountabilityMechanism, in particular with the Problem Solving phase where communities seekingconfidentiality have been intimidated by the mechanism and have feared reprisals. Please contact

Accountability Counsel for if you are concerned about retribution or intimidation as a result offiling a complaint. We may be able to assist with finding support.

Example of a Complaint to the ADB Accountability Mechanism

In 2002, the ADB approved a loan to Sri Lanka for construction of a highway that wouldcross four river basins, cut through 100 small and large wetlands and paddy fields, pass throughnumerous villages, and require the destruction of 1,300 houses. Altogether, it was estimated that5,683 households would be affected by the project.34 In June 2004, a group of project-affectedpeople filed a complaint to the ADB Accountability Mechanism with both the Special ProjectFacilitator (SPF) and the Compliance Review Panel (CRP) arguing that the project failed tocomply with ADB policies on, among other things, the environment, land acquisition practices,lack of consultation, and involuntary resettlement.35 The complainants argued that the project

violated their human rights and caused a loss of homes and livelihoods. The complainantssought changes to the project planning and design, including that the ADB pay fullcompensation for resettlement, consider alternative routes for the road to minimize the need forresettlement, and fully consult with affected people after completion of the new assessment.

Additionally, the complainants asked for the suspension of loan disbursements and theestablishment of an independent committee to investigate the potential for an alternativeplacement of the road.

34 ADB-JBIC Funded Southern Transport Development Project, Sri Lanka: A Fact-finding Report on Status ofResettlement Implementation Plan, Prepared by Bank Information Center, NGO Forum on ADB and Center forEnvironmental Justice (June 2006).35 Id .



24

The SPF found the request for problem solving eligible 15 days after it was filed andarranged a series of meeting with the complainants and other stakeholders to take place over thecourse of the next several months. During the problem solving process, the SPF heard thecomplainants’ grievances about the inadequate and threatening consultations that had occurred,

about the lack of proper resettlement compensation and aid, and the questionable impactassessments that did not properly document the impending harm to the environment and tocultural sites.

Following the conclusion of consultations in February 2005, the SPF released a finalreport in March 2005. The report included a series of findings favorable to the complainants,including that the consultations and information given to the project-affected people wereinsufficient, that the land acquisition process and resettlement plan had serious shortcomings,and that adverse environmental impacts would result from the project. However, the SPFconcluded that halting disbursement of funds would actually hinder the problem solving process.

The consultation period ultimately ended without the parties agreeing to any sort of mediated

settlement, despite the involvement of an international mediator/facilitator.

At the time of the review and assessment, the SPF noted “all three parties seemed tohave reached a point where they realized that their options were limited.” The internationalmediator likewise determined that “the complainants’ perceived grievances were incapable ofresolution within the forum of a mediated settlement… [and] could only be effectivelysanctioned within the judicial system.” Thus, the SPF concluded the problem solving process

with a series of recommendations to increase the participation of project-affected people andconduct more extensive studies on the adverse impacts that would arise from the project.

According to the report conducted by Bank Information Center, NGO Forum on the ADB, andCenter for Environmental Justice, many of these recommendations have not been fully

implemented and several problems remain outstanding.36

After the ADB’s CRP determined the request was eligible, the Board of Directorsauthorized a compliance review and the CRP conducted an investigation. The CRP issued itsfindings and recommendations in its Final Report in June 2005. The CRP noted that the ADBhad not complied with the environmental impact assessment requirements for the project, thatno gender assessment had been done despite the project’s large impact on women, and that theplans for involuntary resettlement had been changed without public participation, which violated

ADB policy. The CRP issued a series of recommendations to the ADB concerning how theproject should be brought into compliance.

The Board approved the CRP’s recommendations in July 2005. Thereafter, the CRPtook steps to officially monitor the ADB’s compliance with its recommendations. By August2005, ADB Management prepared a “course of action” plan to implement the recommendationsmade by the CRP. The CRP’s monitoring report notes that ADB Management prepared the“course of action” without input from the complainants.37 The CRP advised Management to

36 Id.37 ADB Accountability Mechanism Compliance Review Panel, Annual Monitoring Report 2005-2006 to the Boardof Directors on CRP Request No. 2004/1 on the Southern Transport Development Project in Sri Lanka (ADBLoan No. 1711-SRI[SF]) (July 11, 2006), available athttp://www.compliance.adb.org/dir0035p.nsf/attachments/STDP-MonitoringReport2006.pdf/$FILE/STDP-MonitoringReport2006.pdf .



25

consult with the complainants and return with a revised plan, which they did. The CRP’smonitoring efforts included review of ADB Management’s monitoring reports, a visit to theproject site, and review of additional documents requested by the CRP. The CRP determinedthat while the ADB had complied with some of the CRP’s recommendations, they had onlypartially complied or not complied at all with many others.

As this case demonstrates, the ADB has made some efforts to bring the project intocompliance because of the project-affected peoples’ request to the SPF and the CRP, howeverseveral problems are outstanding and the results have not quite met the expectations of thecomplainants. With the continued monitoring role of the Accountability Mechanism, thecomplainants have a means of communicating continuing problems with the project to the

ADB, yet many of their concerns related to resettlement and compensation have yet to beresolved. Although the ADB is still in violation of many of its policies, the reports of the SPFand the CRP have brought attention to deficiencies, and the ADB is now under pressure tomake change.

Where to Submit a Complaint

Complaints may be sent to any ADB office, which will forward them unopened to theCRO, or they may be sent directly to the CRO by mail, fax, email, or by hand delivery to:

Complaints Receiving Officer Asian Development Bank6 ADB Avenue, Mandaluyong City1550 Metro Manila, [email protected]

Tel: + 63 2 632 4444

Fax: + 63 2 636 2444



26

The European Bank for Reconstruction and Development’s (EBRD)Project Complaint Mechanism (PCM)38

What is the EBRD?

The EBRD, formed in 1991,finances development projects. Withregards to Asia, ERBD only invests inCentral Asia.39 The EBRD investsmainly in the private sector, but often

with public partnerships.

What is the EBRD’s ProjectComplaint Mechanism?

The Project Complaint

Mechanism (“PCM”) is the EBRD’saccountability mechanism that cameinto force in March 2010. The ERBDis currently in the process of reviewingthe PCM Rules of Procedure. ThePCM provides people and civil societyorganizations40 affected by EBRD-financed projects a means to raisecomplaints with the Bank. Complaintsfall into one or both of the followingcategories:

• Problem-Solving – thisfunction of the PCM is designedto create dialogue between theparties using methods of “fact-finding, mediation, conciliation,dialogue facilitation, investigation or reporting.”41

• Compliance Review - this function of the PCM reviews complaints to determine whetherthe EBRD has complied with its own environmental, social, and information disclosurepolicies.

Once the complaint has been received, the PCM’s Chief Compliance Officer and a PCMExpert determine whether the complaint is eligible for “Compliance Review,” “Problem-Solving,” both, or neither.

38 For more information, go to http://www.ebrd.com/pages/project/pcm.shtml.39 Countries include Kazakhstan, Kyrgyzstan, Mongolia, Tajikistan, Turkmenistan, and Uzbekistan.40 See http://www.ebrd.com/pages/project/pcm/about.shtml (“Civil society organizations are able to request onlycompliance review under the PCM.”).41 See http://www.ebrd.com/pages/project/pcm/about.shtml.

EBRD Quick Summary

For a Problem-solving Initiative (PSI), youmay submit a complaint if you are anindividual, group, or civil societyorganizations, and you are either:

• located in an EBRD project area, or

• your livelihood may be impacted by anEBRD project.

For a compliance review, any person ororganization may submit a complaint.

In both cases, you must have informationthat a project supported by the EBRD hascaused, or is likely to cause, harm.

The PCM determines eligibility andproceeds with a PSI, a compliance review,or both.

The PCM issues public reports of findings,EBRD management responds, then thePCM monitors and publicly reports on anyapproved actions to correct noncomplianceuntil there is compliance.



27

When is the Earliest a Complaint May be Submitted?

For projects not yet approved, complaints may be brought only if the EBRD has made a“clear indication that it is interested in financing the Project”.42

When is the Latest a Complaint May be Submitted?

Complaints must be brought while there is still a “financial interest in the project”.43 Inaddition, the complaint must be filed within 12 months of the last disbursement of funds fromthe EBRD.

In addition, you may not submit a complaint unless you have already tried to resolve thedispute; this includes attempting to resolve the dispute with the local EBRD office ordepartment in charge of the project and with the corporation(s) implementing the project withthe EBRD.

What to Include in the Complaint

The EBRD’s PCM Rules of Procedure detail the information required in a complaint.One of the criterion for a complaint to be eligible for a Compliance Review consists of theproject-affected people’s complain relating to “more than a minor technical violation of aRelevant EBRD Policy unless such technical violation is alleged to have caused harm.”44

A complaint to the EBRD’s PCM must include:

• Identifying Information About the Requesters

• One or more individuals or organizations from a project-affected area maysubmit a complaint if it is “concerning a Project which allegedly has caused,or is likely to cause, harm.”45

• One or more individuals may submit a complaint for a Problem-solvingInitiative if they are in an Impacted Area or have financial concerns in suchregion.

• Prior to registration of complaint, it must identify the complainant includingcontact information, and if petitioning for a Compliance review, also includepresumed violation of Relevant EBRD Policy.

• List the language you would like to use (English, French, German, orRussian) with your communications with the EBRD’s PCM, keeping in mindthat languages other than English will require additional response time due to

42 See PROJECT COMPLAINT MECHANISM: R ULES OF PROCEDURE 18 (2010), available athttp://www.ebrd.com/downloads/integrity/pcmrules.pdf .43 See PROJECT COMPLAINT MECHANISM: R ULES OF PROCEDURE 18 (2010), available athttp://www.ebrd.com/downloads/integrity/pcmrules.pdf .44 See PROJECT COMPLAINT MECHANISM: R ULES OF PROCEDURE 23 (2010), available athttp://www.ebrd.com/downloads/integrity/pcmrules.pdf .45 See PROJECT COMPLAINT MECHANISM: R ULES OF PROCEDURE (2010), available athttp://www.ebrd.com/downloads/integrity/pcmrules.pdf .



28

translation.

• Confidentiality

• Note that the PCM does not guarantee confidentiality. If you would like the

names and addresses of the requesters or representatives to be keptconfidential, you can submit information in your complaint about why youbelieve the information should be confidential, but the PCM Officer willultimately determine whether or not your information is kept confidential. Ifnot, the PCM Officer will collaborate with the Complainant on whether ornot to proceed.

• Evidence of Efforts to Resolve the Problem

• The complaint should include a description of the steps you have taken toresolve the problem with the EBRD department in charge of the project andthe corporate project partner.

• The PCM also requires copies of correspondence with, or notes frommeetings with, EBRD staff and other relevant parties about the problem, andany other supporting information.

• Information and Evidence Regarding Your Claim

• EBRD project name, country in which the project is located, and descriptionof the project.

• You should include all evidence you have describing the harm caused orlikely to be caused by the project, including any drawings, photos, plans,letters, taped interviews or other materials.

• If possible, the Complaint should describe why you think the EBRD has notfollowed its Environmental and/or Public Information policy on a project.

• If possible, describe how you would like the problem to be resolved – do you want a Compliance Review to determine whether the EBRD has followed itsown policies and procedures? Or do you want a Problem-solving initiativethat might include fact-finding, mediation, conciliation, dialogue facilitation,investigation or reporting?

The Problem-solving Process

If eligible and the PCM’s Eligibility Assessors recommend conduct of a Problem-solvingInitiative, the problem-solving process will not move forward unless the President of the EBRDapproves the recommendation within ten (10) days. If approved, a Problem Solving Expert willconduct the Initiative and then issue a Problem-solving Completion Report. The Report willidentify the need for any follow-up monitoring and reporting by the PCM Officer.



29

The Compliance Review Process

If eligible, a Compliance Review Expert will conduct the Compliance Review and issue areport. The report will either contain a finding of compliance, which will complete the review,or a finding of non-compliance that will include recommendations for how to achieve

compliance and monitor implementation of changes.

Bank Management will have a chance to respond to a finding of non-compliance. TheManagement Action Plan (their response) and the Compliance Review Report will go to thecomplaining party for comments. The final Report, Action Plan and any comments will go tothe complaining party, the President (if the project was not yet approved by the Board), or theBoard, and will be made public. The PCM Officer will monitor implementation of finalrecommendations.

Policies That May Apply in Claims to the PCM

The primary policy that guides the EBRD’s project operations is the Environmental andSocial Policy. The 2008 Environmental and Social Policy is a key document of the Bank, whichdetails the commitments of the agreement establishing the Bank particularly for the “promotionof environmentally sound and sustainable development.”

The EBRD’s Public Information Policy

The Public Information Policy (PIP) sets out how the EBRD discloses information andconsults with its stakeholders so as to promote better awareness and understanding of itsstrategies, policies and operations. At the same time, the PIP establishes clear lines ofdemarcation to distinguish the information that is made publicly available (either on a routine

basis or upon request) from information that may not be disclosed on the grounds of beingconfidential.46

The EBRD Public Information Policy entitles the public to information including:

• Sectoral Policies

• Country Strategies

• The EBRD Environmental Policy

• Project Summary Documents (PSDs)

• Environmental Impact Assessments (EIAs)

• Public Sector Project Board Reports (after Board approval, available upon request)

To access any of the information above not available on the EBRD website, contact theEBRD’s Head of Civil Society Engagement Unit at phone: +44 20 7338 7912, fax: +44 20 73386102, or email: [email protected]. You may also use the EBRD’s online information request form:http://www.ebrd.com/pages/about/contacts/form.shtml. Additionally, you can send a requestfor information by fax: +44 207 338 6102, or regular mail to the Bank’s CommunicationsDepartment at One Exchange Square, London, EC2A 2JN, United Kingdom.

46 See Public Information Policy, European Bank for Reconstruction and Development (July 2011), available athttp://www.ebrd.com/pages/research/publications/policies/publicinfo.shtml.



30

If a request for information is rejected, you can appeal by submitting a letter to theSecretary General at One Exchange Square, London, EC2A 2JN, United Kingdom, by e- mail [email protected], or by fax: +44 207 338 6488 within 30 working days of the receiptof the decision which is the subject of the appeal.

Example of a Case Brought to the PCM

On April 27, 2010, the EBRD approved a loan of up to $250 million for the design,build, finance and operation of portions of the “D1 Motorway Phase 1” roadway project in theSlovak Republic. On June 7, 2010, the Priatelia Zeme – CEPA and SOS BirdLife Slovenskoorganizations jointly filed a complaint with the PCM seeking compliance review concerninginadequate assessment of the project’s environmental impacts and consequential harm toprotected areas and habitats of community importance.

The PCM determined the request was eligible for a compliance review to “assess whether

and – if so – which EBRD policy or policies may have been violated and if harm has beencaused due to action or inaction on the part of the Bank.”47 On September 2, 2010, the newlyelected Government of the Slovak Republic chose not to proceed with the project followingdelays in financing deadlines and negotiations with the European Commission overenvironmental concerns raised by civil society. The PCM nonetheless opted to move forward

with compliance review in order to address outstanding questions regarding EBRD compliance with its own safeguard policies.

The PCM conducted an investigation and issued its findings in its Compliance ReviewReport in March 2011, which was also submitted to the EBRD Board of Directors. Despitefinding significant deficiencies in the initial study assessing expected project impacts, the PCM

independent expert concluded that no non-compliance had occurred as a result of subsequentdue diligence conducted by EBRD identifying and stipulating appropriate mitigation measures.48

This case demonstrates the limits of compliance review, which is aimed solely atdetermining whether a bank is in compliance with its own policies. As demonstrated by thiscase, even a deficient initial study may not lead to a finding of non-compliance.

Where to Submit a Complaint

A Sample Complaint is available on the website. File your complaint with supportinginformation to your local EBRD office, or via mail, e-mail or fax to:

Project Complaint Mechanism Attn: PCM OfficerEuropean Bank for Reconstruction and DevelopmentOne Exchange SquareLondon EC2A 2JNUnited Kingdom

47 Project Complaint Mechanism Eligibility Assessment Report, Complaint: D1 Motorway Phase 1, Slovak Republic 7 (Aug. 2010), available at : http://www.ebrd.com/downloads/integrity/Eligibility_Assessment_Report.pdf .48 Project Complaint Mechanism Compliance Review Report, D1 Motorway Phase 1, Slovak Republic 7 (May 2011),available at : http://www.ebrd.com/downloads/integrity/Compliance_Review_Report_D1_Slovakia_FINAL.pdf .



31

Phone +44 20 7338 7813; Fax +44 207 338 7633Email [email protected]

According to the EBRD, “Complaints submitted by email should contain theComplainant’s or Authorised Representative’s scanned signature; if emailed without a scanned

signature, a signed version of the Complaint must be sent by fax, post or hand delivery to thePCM Officer or one of the Bank’s Resident Offices as soon as possible after the emailsubmission.”49

49 PROJECT COMPLAINT MECHANISM: R ULES OF PROCEDURE 8 (2010), available athttp://www.ebrd.com/downloads/integrity/pcmrules.pdf .



32

The European Investment Bank’s (EIB) Complaints Mechanism

What is the EIB?

The European Investment Bank

(“EIB”) was created in 1958 and lendsmoney to the public and private sectors inthe area of EU convergence, and providessupport for small and medium-sizedenterprises, environmental projects,research, transport and energy. Under thecurrent mandate EIB is authorized to lendup to EUR 1.0 billion for Asia and Central

Asia.50

What is the EIB’s Complaints

Mechanism?

The EIB has the newest of the IFIaccountability mechanisms, having releasedits Complaints Office policy in 2008, andrevised versions in February 2010 and April2012.51 The EIB Complaints Mechanismtakes a flexible approach; it conductscompliance reviews, problem-solving, gives“advice and recommendations to EIBManagement” and reviews implementation

of corrective actions.52 The ComplaintsOffice applies to both private- and public-sector EIB operations.

What May Be the Subject of aComplaint?

The EIB has the widest scope ofany of the IFI accountability mechanisms. Itmay accept complaints from any person allegingoperational “maladministration”53 by the EIB.

The EIB Complaints Mechanism Policy defines “maladministration” as occurring “whena member of the EIB Group fails to act in accordance with the applicable legislation and/orestablished policies, standards and procedures, fails to respect the principles of good

50 Eligible countries include Bangladesh, Brunei, Cambodia, China, India, Indonesia, Iraq, Kazakhstan, Kyrgyzstan,Laos, Malaysia, Maldives, Mongolia, Nepal, Pakistan, the Philippines, Singapore, South Korea, Sri Lanka, Tajikistan,

Thailand, Turkmenistan, Turkmenistan, Uzbekistan, Vietnam, and Yemen.51 See Revised Policy EIB Complaints Mechanism (Apr. 2012) athttp://www.eib.org/infocentre/publications/all/complaints-mechanism-policy.htm.52 EIB Complaints Mechanism Policy, ¶ II. 3.1.53 EIB Complaints Mechanism Policy, ¶ II. 1.2.

EIB Quick Summary

Any person or group may submit acomplaint to the EIB ComplaintsMechanism Office if you believe the EIBhas failed to act according to:

• applicable law,• EIB policy,• fails to respect the principles of good

administration, or• violates human rights

The Office will respond within 10 daysacknowledging receipt of the complaint.

This may include, or be followed by, adecision as to whether the complaint willbe processed. If so, the Office willconduct an investigation using a flexibleapproach, which may include compliancereview and/or problem-solving. Note:complainants may expressly requestproblem-solving in their complaint.

The Office concludes its work with anrecommended corrective actions andissues a Conclusions Report.

If you are not satisfied with the result, within one year, you may appeal to theEuropean Ombudsman. This is the onlyIFI accountability mechanism that has anappeal process.



33

administration or violates human rights.”54 Instances of maladministration may also concern“environmental or social impacts” of the EIB Group’s activities.55 The EIB gives examples ofsuch failures, as determined by the European Ombudsman, as: “administrative irregularities,unfairness, discrimination, abuse of power, failure to reply, refusal of information, unnecessarydelay.”56

Who May Complain?

Complaints may be submitted to the Complaints Office by “any person or group”alleging maladministration of a member of the EIB Group due to an EIB action or omission.57

The complaining party may be “any person or group that is or feels affected by allegedenvironmental, developmental or social impacts of the EIB Group’s activities.”58

Furthermore, any member of the public who feels “affected by the activities of the EIBGroup but who [is] not aware of the rules, regulations, policies or procedures applying to theGroup may also submit complaints.”59 Thus, in terms of standing to file a complaint, the EIB

offers the widest access of any of the mechanisms.

Language of the Complaint

Complaints must be filed in any of the official EU languages. If a complaint is filed in alocal language, the complainant will be asked to have the complaint translated into an EUlanguage.60


The complaint must provide the contact information, including mailing address, of the

complainant; the description of the maladministration complained of; the desired outcome of theprocess; and it must attach all relevant documentation.61 A complaint submission form isavailable online at: http://www.eib.org/infocentre/complaints-form.htm.

Confidentiality

Unlike the other accountability mechanisms where requesters must affirmatively requestconfidentiality, the EIB Complaints Mechanism Policy treats all information confidentially unlessthe complainant has waived that right.62

54 EIB Complaints Mechanism Policy, ¶ II. 1.2.55 EIB Complaints Mechanism Policy, ¶ II. 1.2. 56 EIB Complaints Mechanism Policy, ¶ II. 1.2.57 EIB Complaints Mechanism Policy, ¶ IV. 2.1.58 EIB Complaints Mechanism Policy, ¶ IV. 2.1, n.5.59 EIB Complaints Mechanism Policy, ¶ IV. 2.2.60 EIB Complaints Mechanism Policy, ¶ IV. 3.2.61 EIB Complaints Mechanism Policy, ¶ IV. 6.62 EIB Complaints Mechanism Policy, ¶ IV. 13.



34

What Happens After a Complaint is Filed

Once the complaint is received, the EIB Complaints Office has ten days in which toacknowledge receipt of the complaint. The acknowledgement may include the ComplaintsOffice’s decision as to whether the complaint is admissible and will inform the complainant

when EIB’s official reply can be expected.63

If the complaint is admissible, the Complaints Office will conduct an inquiry thatincludes reviewing documents and when judged necessary, holding meetings with the relevantinternal and external stakeholders.64 In a blend of both compliance and problem-solving roles,the Complaints Office “will focus on fact-finding and whenever appropriate will use disputeresolution techniques such as mediation, conciliation and dialogue facilitation, thus ensuring togive the adequate emphasis to problem solving.”65 The Complaints Office may conduct site

visits, request oral or written submissions from the parties, meet with local and internationalorganizations, and may rely on expert research.66 The Complaints Office may also proposecorrective actions and improvements to EIB policy.

At the end of an inquiry, the EIB Complaints Office will prepare a “ConclusionsReport” and formulates corrective actions and recommendations. Corrective actions will includean implementation plan with a detailed timeframe.67

If Unsatisfied, Opportunity to Appeal to the European Ombudsman

Unlike any of the other accountability mechanisms discussed above, if the requester isnot satisfied with the decision from the EIB Complaints Office, that decision may be appealedto an independent higher authority. Procedures for appeal to the European Ombudsman are inSection V of the Revised Complaints Mechanism Policy.68

a. Timing of Steps Taken Before An Appeal

According to the EIB Complaints Office rules, “A complaint must be lodged within twoyears from the date of acknowledgement of the facts on which the complaint is based.”69

b. Scope of European Ombudsman Investigations

Appeals may be brought to the European Ombudsman if there is a concern that the EIBComplaints Office failed to deal with the complaint in a “timely and/or correct manner.”70

63 EIB Complaints Mechanism Policy, ¶ IV. 7.1.64 EIB Complaints Mechanism Policy, ¶ IV. 7.6.65 EIB Complaints Mechanism Policy, ¶ IV. 7.7.66 EIB Complaints Mechanism Policy, ¶ IV. 8.67 EIB Complaints Mechanism Policy, ¶ IV. 7.14-17.68 See Revised Policy EIB Complaints Mechanism at http://www.eib.org/infocentre/publications/all/complaints-mechanism-policy.htm.69 EIB Complaints Mechanism Policy, ¶V, 5.1.70 EIB Complaints Mechanism Policy, ¶ V. 1.1.



35

The goal of the European Ombudsman’s procedure is to find a satisfactory resolution ofthe issue. The European Ombudsman may make a finding that the EIB has committedmaladministration and make recommendations if appropriate.

If the EIB fails to accept the European Ombudsman’s recommendations, the European

Ombudsman may make a special report to the European Parliament.71

Policies That May Apply in Claims to the EIB’s Complaints Mechanism

EIB has a set of environmental policies and strategies, including EIB’s Statement ofEnvironmental and Social Principles.72 The Statement outlines the standards that the Bankrequires of the projects that it finances, and the responsibilities of the various parties. It providesa sense of urgency about the problems of climate change, gives greater recognition to theimportance of biodiversity, and expands the section on the social dimensions of sustainabledevelopment.

The EIB adopted a Transparency Policy on 2 February 2010. The new TransparencyPolicy replaces the Public Disclosure Policy (2007) and the Transparency Policy (2004). The newtransparency policy fully takes into account the Lisbon Treaty on the functioning of the EU.73

How to Submit a Complaint

Written complaints to the EIB may be submitted through email, the complaint form onthe EIB website, by mail to the below address, by fax or delivered directly to the EIBComplaints Office, any EIB local representation office or any EIB staff. 74

Secretary General100 boulevard Konrad AdenauerL-2950 LuxembourgPhone: (+352) 43 79-1Fax: (+352) 43 77 04 www.eib.org Email: [email protected] Online Complaint Form: http://www.eib.org/infocentre/complaints-form.htm

71 EIB Complaints Mechanism Policy, ¶ V. 6.2.72 See http://www.eib.org/infocentre/publications/all/environmental-and-social-principles-and-standards.htm.73 See http://www.eib.org/infocentre/publications/all/eib-transparency-policy.htm.74 EIB Complaints Mechanism Policy, ¶ IV. 3.1



36

P ART III N ATIONAL A CCOUNTABILITY MECHANISMS

Most national accountability mechanisms relevant for this version of the guide arelocated in national export promotion agencies, some of which are called export credit agencies,are government-run institutions that give loans, grants, and insurance to domestic corporations

doing business abroad. The stated goal of such support is to promote domestic companies andto contribute to development abroad. Put together, these agencies fund and support moreprivate sector projects than any other type of financial institution.75 Only a few of the exportpromotion agencies around the world have accountability offices. The agencies created by the

Japanese, Canadian, American and Australian governments are discussed below.

Japan Bank for International Cooperation’s (JBIC) and Japan InternationalCooperation Agency’s (JICA) Objection Procedure

What is Japan Bank for

International Cooperation (JBIC)and Japan InternationalCooperation Agency (JICA)?

JBIC is the export creditagency of the Japanese Government.

JBIC promotes Japanese exports,imports and economic activitiesthrough loans, equity, guarantees andother financial support.

JICA is part of the JapaneseOfficial Development Assistance(ODA) and provides bilateral aiddirectly to developing countries in theform of Technical Cooperation,

Japanese ODA Loans, and Grant Aid.76 JICA is currently working inSoutheast Asia, East Asia, Central Asiaand South Asia.77

75 For a critique of the ECAs, visit the ECA Watch Website at http://www.eca-watch.org/eca/index.html.76 See About JICA, Japan’s ODA and JICA, available at http://www.jica.go.jp/english/about/oda/index.html 77 Countries include Afghanistan, Bangladesh, Bhutan, Cambodia, China, India, Indonesia, Kyrgyzstan, Laos,Malaysia, Maldives, Mongolia, Myanmar, Nepal, Pakistan, Philippines, Sri-Lanka, Tajikistan, Thailand, Timor-Leste,Uzbekistan, and Vietnam. For more information on projects in Asia seehttp://www.jica.go.jp/english/countries/asia/index.html

Examiner Quick Summary

Two or more people may complain to theExaminer when:

• they live in a country where JBIC or JICA have financed a project;

• they have suffered or are likely tosuffer harm from the project;

• the harm has resulted from JBIC’s or JICA’s failure to follow its own

Guidelines; and• they have made efforts to address their

problem with both the project sponsorand JBIC’s or JICA’s operationaldepartment before filing a complaint.

The Examiner assesses eligibility and thendecides whether or not to investigate. TheExaminer may also attempt to mediate thedispute through a dialogue phase. Within 3months, the Examiner will issue a report

with a finding regarding JBIC compliance. The operational department must respond,and the JBIC Board decides what action totake, if any.



37

What are the Objection Procedures and the Guideline Examiner?

The Objection Procedures call for the appointment of an Examiner of the guidelines. The JICA Examiner reports to the President of JICA, and under JBIC, the Examiner reports to

the Executive Committee of JBIC.

The Objection Procedures was established to 1) ensure compliance with the social andenvironmental guidelines of JBIC and JICA; and 2) encourage dialogue and assist in disputeresolution between the parties. The JBIC and JICA procedures have been consolidated to theextent a combined review will provide an overview of the process and procedures.

JBIC Guidelines for Confirmation of Environmental and Social Considerations includeproject consideration and assessment of anti-pollution measures (air, water, waste, soil, noise and

vibration, subsidence, odor and sediment); natural environment (protected areas, ecosystem,hydrology, typography, geology and management of abandoned sites); and social environment

(resettlement, living and livelihood, heritage, landscape, ethnic minorities and indigenouspeoples, and working conditions).78

The impacts to be assessed according to the JICA Guidelines for Environmental andSocial Considerations include human rights related issues of human health and safety, migrationand resettlement, livelihood and other social impacts, as well as impacts on the naturalenvironment that are transmitted through air, water soil, waste, accidents, water, climate changeetc.79

Projects coming under the Procedures

Requests to raise objections may be made “with respect to the projects in which JBICprovides funding and in which substantial damage has actually been incurred or is likely to beincurred in the future, due to JBIC’s non-compliance with the Guidelines”80 or with respect to

JICA “projects of 1) Loan aid, 2) Grant aid (excluding projects executed through internationalorganizations), 3) Preliminary studies of grant aid undertaken by the Ministry of Foreign Affairs(hereinafter referred to as “MOFA”), 4) Technical cooperation for development planning, and 5)

Technical cooperation projects, covered by the Guidelines, in which substantial damage hasactually been incurred or is likely to be incurred in the future due to JICA’s non-compliance withthe Guidelines.”81

78 See Japan Bank for International Cooperation Guidelines for Confirmation of Environmental and SocialConsiderations, April 2012, available athttp://www.jbic.go.jp/en/about/environment/guideline/business/pdf/pdf_01.pdf 79 See Japan International Cooperation Agency Guidelines for Environmental and Social Considerations, available athttp://www.jica.go.jp/english/our_work/social_environmental/guideline/pdf/guideline100326.pdf 80 See Summary of Procedures to Submit Objections concerning JBIC Guidelines for Confirmation ofEnvironmental and Social Considerations, July 2012, available athttp://www.jbic.go.jp/en/about/environment/guideline/disagree/pdf/en-disagree-2012.pdf 81 See JICA Objection Procedures Based On The Guidelines For Environmental And Social Considerations, April2010, available athttp://www.jica.go.jp/english/our_work/social_environmental/guideline/pdf/objection100326.pdf



39

• After JICA discloses the project’s agreement document and up to one month afterthe final report is disclosed on the website.

Steps that Must Be Taken Before Filing a Complaint

Before filing a complaint, a requester must try to contact: (1) the Project Sponsor and (2)the JBIC or JICA Operational Department.

(1) Contacting the Project Sponsor. A requester may only bring a complaint to theExaminer after the requester has attempted to resolve the issue with the ProjectSponsor or “Project Proponent.” The Project Sponsor is generally the corporationor group actually constructing or creating the project at issue.

(2) Contacting JBIC’s or JICA’s Operational Department. The requester must alsocommunicate the concerns to the Operational Department before filing a complaint.In order to communicate your issues with the Operational Department, send a

description of your issues to the closest JBIC or JICA office with a request that thecomplaint be forwarded to the Operational Department. There are 16 JBIC officesaround the world and 22 JICA offices in Asia alone.83

In both cases, the requester should take detailed notes regarding any telephone callsmade to these groups and should keep copies of any letters, facsimiles or e-mails sent to thesegroups regarding their complaints. If any meetings are scheduled or conducted, the requestershould make a record of when and where the meeting took place and who attended. It isimportant that the requester have at least two people present at any in-person meeting. Therequester should also keep a record of the response received from the Project Sponsor or theOperational Department, if any.


The complaint may be submitted in English, Japanese, or your country’s officiallanguage. The following information must be included in the complaint:

• The names and contact information for the requesters;

• If someone else (an agent) is filing the complaint on behalf of the requesters, includeinformation about the agent and proof that the agent is authorized to act on behalfof the requesters (for example, a signed letter from the requesters giving the agent

authority to act on the requesters’ behalf);• Information about the project at issue, including:

! the name of the country where the project is located,

! the specific location of the project, and

! a short description of what the project is, including information about theProject Sponsor;

83 For the nearest JBIC office, please visit http://www.jbic.go.jp/en/about/office/index.html; and for the nearest JICA office, please visit http://www.jica.go.jp/english/about/organization/overseas/index.html



40

• A description of the harm that the requesters have suffered (or are likely to suffer inthe future) as a result of JBIC’s or JICA’s failure to follow its own Guidelines;

• Relevant provisions of the Guidelines that the requesters believe have been violated;

• Facts supporting the requesters’ belief that Guidelines have not been followed;

• Facts to explain why the JBIC or JICA failure to follow the Guidelines has causedthe harm (or expected harm) to the requesters;

• A description of how the requesters think the issue should be resolved. For example,explain the:

! type of compensation required,

! changes that must be made to the project, or

! mitigation of environmental impacts needed;

• Facts describing how the requesters first tried to resolve the issues with the Project

Sponsor and the JBIC or JICA Operational Department.! Here, the requesters should describe and include copies of records of any

phone calls made, any letters, facsimiles or e-mails sent, or any in-personmeetings conducted with the Project Sponsor and the OperationalDepartment.

! The requesters should describe what happened as a result of thosecommunications (describe any response) and why the response or lack ofresponse did not resolve the issue.

A sample request form can be found in Appendices section of the Objection Proceduresfor either JICA or JBIC.

Steps in the Examiner Process

The Examiner will notify the requesters that the request has been received within 5business days of receipt of the request. There are at least four stages in the Examiner’s process,described below.

(1) The Eligibility Stage. The Examiner will first verify that the requesters havesubmitted all the required information (see above). The Examiner may check thefacts in the complaint or interview the requesters at this point to make sure that therequester or agent is qualified to bring a complaint and that the complaint was madein “good faith.” The Examiner should complete the Eligibility Stage within onemonth after the Examiner’s acceptance of a complaint.

(2) The Examiner’s Decision to Investigate, Not Investigate, or Wait. If theExaminer decides to continue at this point with an investigation of the issues raisedin the complaint, the Examiner will notify the requesters, JBIC or JICA management,the Project Sponsor and other parties involved. If the Examiner decides not toinvestigate, the Examiner will notify the JBIC or JICA management and therequesters of the reasons thereof. Even if a decision is made not to investigate theExaminer may transfer the request to the Operational Department for examination



41

and monitoring of the project. As a third possibility, the Examiner may decide to wait to make a decision if the issues raised in the complaint are the subject of alawsuit in either Japan or the requesters’ country or any other dispute resolutionproceeding. In that case, the Examiner will notify the requesters of this decision.

(3) The Investigation Stage. The Examiner’s investigation of the issues in thecomplaint may include interviews with the requesters and members of theOperational Department staff, and inspection of documents or other relevantmaterials. The Examiner may also interview other residents of the project area whoare not requesters, the Project Sponsor, specialists or local or national governmentalofficials.

(4) The Dialogue Stage. The Examiner may attempt to mediate the dispute byencouraging dialogue. The Examiner may conduct individual interviews as part ofthis process.

Within two (JICA) or three (JBIC) months of receiving the complaint from therequesters, the Examiner must issue a report that will describe the results of the investigationinto compliance with the relevant Guidelines and will recommend how to bring a project intocompliance if violations are found.

The Examiner will send the report to the requesters and other interested parties as soonas it is completed. The requesters and other parties are then invited to send their comments onthe report to the Examiner, who will take them into consideration and may respond to them.

One month after the Examiner’s report has been completed and sent to the parties, theOperational Department must issue its written opinion of the report and measures that need to

be taken to ensure compliance with relevant Guidelines.

Confidentiality

The requesters must give their real names and contact information to the Examiner inthe complaint. However, if the requesters do not want the project sponsor (the corporation orgroup running the project) to know their identity, the requesters may request confidentiality intheir complaint. It is important to note that there is no guarantee of confidentiality in thisprocess.

Where to Submit the Complaint

JBIC: JICA:

Office of Examiner for Environmental Guidelines Examiners for the Guidelines Japan Bank for International Cooperation Office of Audit4-1, Ohtemachi 1-chome Chiyoda-ku, Japan International Cooperation Agency

Tokyo 100-8144, Japan Nibancho Center BuildingFAX: + 81-(0)3-5218-3946 5-25, Niban-cho, Chiyoda-ku,E-mail: [email protected] Tokyo 102-8012, Japan

FAX: +81-03-5226-6973E-mail: [email protected]



42

Information About JBIC and JICA Projects

While JBIC’s and JICA’s websites may be the best source of information regardingprojects, see http://www.jbic.go.jp/english/environ/joho/ and http://www.jica.go.jp/english/,the NGOs Friends of the Earth Japan,84 Mekong Watch85 and JACSES86 are other important

sources of information if you are considering submitting a request through the ObjectionProcedure.

84 See http://www.foejapan.org/en.85 See http://www.mekongwatch.org/english.86 See http://jacses.org/en.



43

The Nippon Export and Investment Insurance (NEXI) Examiner for theGuidelines on Environmental and Social Considerations in Trade Insurance

What is Nippon Export andInvestment Insurance

(NEXI)?

NEXI is an incorporatedadministrative agency of the JapaneseGovernment with the role of providingtrade and investment insurance to

Japanese companies.87

NEXI has committed toconfirming that project sponsors andother relevant parties implement

appropriate environmental and socialconsiderations in their projects. Inorder to fulfill this commitment, NEXIhas established Guidelines onEnvironmental and SocialConsiderations in Trade Insurance(“Guidelines”), which set out theguiding policy and procedures forconfirming that the borrowers orproject proponents have takenappropriate steps for environmental and

social considerations. 88

What is the NEXI“Examiner”?

The Examiner is an office within NEXI established to hear complaints regarding violations of the Guidelines. NEXI describes the Examiner as “an organ working under thedirect control of the Chairman & CEO” but “independent” of the NEXI Departments in chargeof underwriting projects.89 The Examiner conducts investigations to determine whether or notNEXI has complied with the Guidelines, and reports the results Chairman & CEO. TheExaminer is made up of a maximum of two people who are appointed by the Chairman & CEO

for a two-year term.90

87 NEXI, About Us, http://www.nexi.go.jp/en/corporate/.88 NEXI, Guidelines on Environmental and Social Considerations in Trade Insurance (2009)http://nexi.go.jp/en/environment/social/pdf/ins_kankyou_gl-e.pdf .89 The relevant Department could be the Underwriting Department, Structured and Trade Finance InsuranceDepartment or the Environmental Group of Financial Risk Management Department.90 NEXI, Procedures for Submitting Objections on Guidelines of Environmental and Social Considerations in

Trade Insurance (2003), pg 1, 9, http://nexi.go.jp/en/environment/objection/pdf/08b_1.pdf .

NEXI Quick Summary

Two or more people may submit anobjection the NEXI Examiner when they:

• live in a country where NEXI hasfinanced a project;

• have suffered or are likely to sufferharm from that project;

• show that the harm has resulted fromNEXI’s failure to follow its own

Guidelines; and• have previously made efforts to

address the issue with both the projectsponsor and the relevant NEXIDepartment.

The Examiner determines eligibility of aRequest and then decides whether or not toproceed with a Formal Investigation. TheExaminer may also attempt to mediate thedispute during a dialogue stage. Within 3

months, the Examiner will issue a report with a finding regarding compliance. Therelevant NEXI department must respond,and the NEXI Chairman & CEO decides

what action to take, if any.



44

Who Can Submit a Request?

Complaints about a project’s compliance with the Guidelines are referred to as“Requests” or “objections.” In order to submit a Request to the Examiner, there are severalrequirements:

• The Requesters must be two or more people who live in a country where a NEXI-promoted project is being implemented;

• The Requesters must have either suffered actual direct damage or are likely to sufferdamage in the future from NEXI’s policy violation with regard the project; and

• The Requesters must have previously made efforts to address the issue with both theproject sponsor and the relevant NEXI Department.

Another person may file a Request on your behalf (your agent), but you must showevidence that it is necessary due to the circumstances of the “Project Country” and also that the

agent is authorized to act on your behalf. The Requesters must still be identified in the Request.

When May A Request Be Filed?

Requesters may submit their Request any time after the conclusion of the insurancecontract and before the completion of the supply of funds. However, even after funding hasbeen disbursed, a Requester may submit an objection alleging NEXI’s non-compliance with themonitoring provisions of the Guidelines.

If the Examiner receives a Request too early – before the conclusion of the insurancecontract – NEXI’s Examiner may send the Request to the section of NEXI’ in charge of

underwriting business. This section may be asked by the Examiner to respond to the Requestand will report to the NEXI Chairman.

Steps that Should Be Taken Before Filing a Request

There are two groups that the Requester should try to contact before filing a complaint:(1) the Project Sponsor, and (2) the relevant NEXI Department in charge of underwriting thebusiness.

The Requester should take detailed notes regarding any telephone calls made to thesegroups and should keep copies of any letters, facsimiles or e-mails sent to these groups regarding

their Requests. If any meetings are scheduled or conducted, the Requester should make a recordof when and where the meeting took place and who attended. The Requester should also keep arecord of the response received from the Project Sponsor or the NEXI Department, if any.

What to Include in the Request

The Request may be submitted in English, Japanese, or your country’s official language. The following information must be included in the Request:

• The names and contact information for the Requesters (if the Requesters do not want their personal information disclosed, they should state that in the Request);



45

• If an agent is filing the Request on behalf of the Requesters, include informationabout the agent and proof that the agent is authorized to act on behalf of theRequesters (for example, a signed letter from the Requesters giving the agentauthority to act on the Requesters’ behalf);

• Information about the project at issue, including:

! the name of the country where the project is located,

! the specific location of the project, and

! an outline of what the project is, including information about the ProjectSponsor;

• A description of the harm that the Requesters have suffered (or are likely to suffer inthe future) as a result of NEXI’s failure to follow its own Guidelines;

• Relevant provisions of the NEXI Guidelines that the Requesters believe have been violated;

• Facts supporting the Requesters’ belief that NEXI Guidelines have not beenfollowed;

• Facts to explain why the NEXI failure to follow the Guidelines has caused the harm(or expected harm) to the Requesters;

• A description of how the Requesters think the issue should be resolved. Forexample, explain the:

! changes that must be made to the project, or

! mitigation of environmental impacts needed;

• Facts describing how the Requesters first tried to resolve the issues with the ProjectSponsor and the NEXI Department or what “unavoidable reasons” prevented themfrom engaging;

! Here, the Requesters should describe and include copies of records of anyphone calls made, any letters, facsimiles or e-mails sent, or any in-personmeetings conducted with the Project Sponsor or the relevant NEXIDepartment.

! The Requesters should describe what happened as a result of thosecommunications (describe any response) and why the response or lack ofresponse did not resolve the issue.

Steps in the NEXI Examiner Process

The Examiner will notify the Requesters that the Request has been received within 5business days of receipt of the Request. Note that if Requests are submitted in a language otherthan Japanese or English, the Request will first be translated. There are eight stages in theExaminer’s process, described below.

(1) The Preliminary Investigation. The Examiner will first verify that the Requestershave submitted all the required information and may ask the Requesters foradditional information if necessary. The Examiner may check the facts in theRequest or interview the Requesters at this point to make sure that the Requester or



47

underwriting the project must issue its written opinion of the report and measuresthat need to be taken to ensure compliance with NEXI Guidelines. The response issent to the Examiner, who will forward a copy to all parties concerned. TheRequesters and other parties are then invited to send their comments on the Reportand the Department’s opinion. All Reports and opinions shall be disclosed on the

NEXI website to the extent that they are allowed to be disclosed by law.

(7) Decision of the Chairman & CEO. The NEXI Chairman & CEO will use theExaminer’s report, the response from the Department, and the opinions of the otherparties concerned to decide what action, if any, to take. The Department will then bedirected to implement any changes.

(8) Examiner Follow-Up. The Department is responsible for reporting to theExaminer on its progress in implementing the changes required by the Chairman &CEO. The Examiner reports back to the Chairman & CEO in the annual report.

This information will be disclosed to the public on the NEXI website.

Confidentiality

The Requesters must give their real names and contact information to the Examiner inthe Request. However, if the Requesters do not want the project sponsor (the corporation orgroup running the project) to know their identity, the Requesters may ask for confidentiality intheir Request. It is important to note that there is no guarantee of confidentiality in this process.

Where to Submit the Request

Chiyoda First Building 3rd Floor 3-8-1, Nishikanda,

Chiyoda-ku Tokyo 101-8359, JapanNippon Export and Investment InsuranceExaminer: Mr. Kazuo MatsushitaE-mail: [email protected]: +81-3-3512-7660

Information About NEXI Projects

While NEXI’s website92 may be the best source of information regarding NEXI projects,the NGOs Friends of the Earth Japan,93 Mekong Watch94 and JACSES95 are other sources ofinformation if you are considering submitting a Request to the NEXI Examiner.

92 NEXI, http://www.nexi.go.jp/en/.93 See http://www.foejapan.org/en.94 See http://mekongwatch.org/english.95 See http://jacses.org/en.



48

Export Development Canada’s (EDC) Compliance Officer

What is Export DevelopmentCanada (EDC)?

Export Development Canada(EDC) is Canada’s export credit agency.It provides risk management andfinancial support to Canadian exportersand Canadian companies investingabroad.96 The EDC has a framework ofenvironmental policy documents thatguide their operations and therequirements of their clients.97

What is the EDC Compliance

Officer?

EDC’s Compliance Officerprovides a mechanism for resolvingcomplaints and also “recommendscompliance audits to determine if EDC isfollowing its corporate socialresponsibility practices and policies.”98

The Compliance Officer position beganin 2001.

Who May Submit a Complaint?

“Any individual, group, community, entity or other party affected or likely to be affectedby EDC’s corporate social responsibility policies and initiatives can submit a complaint.”99

These corporate social responsibility policies include those regarding public disclosure ofinformation, environmental reviews, human rights and business ethics.

“If a complaint is being made on behalf of another party, that group should be identifiedand evidence of authority to represent that group provided.”100


According to the EDC website, the “complaint must be in writing, or submitted

96 See EDC, About Us, http://www.edc.ca/EN/About-Us/Pages/default.aspx 97 See EDC's Environmental and Social Risk Management Framework, http://www.edc.ca/EN/About-Us/Corporate-Social-Responsibility/Environment/Pages/default.aspx 98 See EDC's Compliance Officer:, http://www.edc.ca/en/About-Us/Management-and-Governance/Compliance-Officer/Pages/default.aspx 99 See EDC's Compliance Officer, Guidelines to Submitting a Complaint, http://www.edc.ca/EN/About-Us/Management-and-Governance/Compliance-Officer/Documents/compliance-officer-steps-to-resolution.pdf 100 See EDC's Compliance Officer, Guidelines to Submitting a Complaint, http://www.edc.ca/en/About-Us/Management-and-Governance/Compliance-Officer/Pages/default.aspx

EDC Quick Summary

Any individual or group may complain toEDC’s Compliance Officer when they havebeen, or are likely to be, affected by EDC’spolicies on public disclosure ofinformation, environmental reviews, humanrights and business ethics.

Within a “reasonable” amount of time, theCompliance Officer will let you know

whether your complaint is eligible. If

eligible, the Officer will use a preliminaryassessment to determine which method touse to handle the compliant (such asdialogue, facilitation or negotiation).

If the problem is not solved, theCompliance Officer can make arecommendation to EDC’s Board ofDirectors about future action that shouldbe taken to address the concerns raised.



49

electronically via our Request for Review Form however it does not need to follow a specificformat. It does, however, help to speed up the process if we receive the following details:

• Your name, address and other contact information such as phone and fax numbers,cell phone, email address.

• If you are representing a complainant, please provide contact information foryourself and the group/person you are representing.

• Background information on your complaint, including the names of any people youmay have dealt with in an attempt to resolve the issue or raise your concerns.

• A clear statement outlining your opinion of the social, business or environmentalimpact of the problem.

• Your opinion on the desired result or outcome of an investigation (this way we havea clear understanding of what you expect from the process).

• What has been done to solve the problem, including any previous contact withEDC.”101

Steps in the EDC Compliance Office Process

According to the Compliance Office website, upon submission of a complaint:

The Compliance Officer will contact you within a reasonable period of timeto let you know if your submission falls within the office’s mandate and to letyou know how long the review may take.

You will receive periodic updates throughout the investigation.

If the Compliance Officer decides that your submission does not fall underthe office’s mandate, you will receive a letter explaining why this decision wasmade.

When the submission does fall within the office’s scope, a preliminaryassessment is done to determine how it should be handled. This ‘call toaction’ looks at problem-solving techniques such as dialogue, facilitation ornegotiation.

If it is felt that further investigation or problem-solving techniques will notresolve the problem to the satisfaction of either party, you will be advised in

writing. When this happens, the Compliance Officer can make arecommendation to EDC’s Board of Directors about future action toaddress the concerns raised.102

At the end of this process, “as part of the resolution, the Compliance Officer will

101 Id .102 See EDC's Compliance Officer, Steps to Resolution, http://www.edc.ca/EN/About-Us/Management-and-Governance/Compliance-Officer/Documents/compliance-officer-steps-to-resolution.pdf



50

include a process for follow up monitoring and review. The Compliance Officer can askEDC to help ensure monitoring and follow up is done.”103

Confidentiality

While anyone can request a review of EDC’s human rights or environmental practices, as with the other mechanisms, anonymous complaints are not investigated. The ComplianceOfficer does, however, consider communication during the resolution process privileged and willnot release confidential information without consent.104

The EDC Disclosure Policy

The EDC Disclosure Policy 105 entitles the public access to information such as:

• Annual Reports

• Reports of EDC’s Insurance and Financing Activities

• Information about Category A projects financed, including EnvironmentalInformation

• General information about projects financed (see Reporting on Transactions,Individual Transaction Information athttp://www.edc.ca/english/disclosure_9237.htm )

• Policies and Procedures such as EDC’s Environmental Review Directive and Codesof Conduct and Business Ethics

The information above is available through the EDC website at http://www.edc.ca. Ifyou are unable to locate information on the EDC website, contact the EDC’s Glen Nichols at

[email protected] or contact EDC by phone: ( 613) 598-2500 or fax: (613) 237-2690.


The submission, in English or French, should be sent via mail, hand delivery, email orfax to:

Compliance OfficerExport Development Canada151 O’Connor StreetOttawa ONK1A 1K3 CanadaFax: 613-597-8534Email: [email protected]

Requests for review may be submitted electronically at:https://www19.edc.ca/edcsecure/eforms/csr/request_review_e.asp

103 See EDC's Compliance Officer, Steps for Resolution, http://www.edc.ca/EN/About-Us/Management-and-Governance/Compliance-Officer/Documents/compliance-officer-steps-to-resolution.pdf 104 See http://www.edc.ca/english/docs/compliance_officer_e.pdf#search=%22.105 See EDC's Disclosure Policy, http://www.edc.ca/EN/About-Us/Disclosure/Documents/disclosure-policy.pdf



51

U.S. Overseas Private Investment Corporation’s (OPIC) Office of Accountability

What is OPIC?

The Overseas PrivateInvestment Corporation (OPIC) is anagency of the United StatesGovernment. While it is nottechnically an “export credit agency”,OPIC provides financing and insuranceto U.S. businesses in their investmentsabroad and works to promote U.S.foreign policy through its private-sectorsupport programs. OPIC policies arecurrently under review.

What is the OPIC Office of Accountability?

OPIC’s Office of Accountability has two functions, the:

• Problem-Solving Function, andthe• Compliance Review Function.

The Office of Accountability’s Problem-Solving function is similar to the CAO’sombudsman function. According to OPIC, the Problem-Solving function is used to “review andattempt to resolve outstanding complaints of local communities, withor without allegations of non-compliance by OPIC. A problem-solving initiative may includeindependent fact-finding, dialogue facilitation or mediation.”106

The Compliance Review function “assesses and reports on complaints regarding OPIC’scompliance with its policies related to environment, social impacts, worker rights and humanrights under an OPIC-supported project.”107

Who May Submit a Complaint?

As detailed more below, the requirements for submitting a complaint to the OPIC Officeof Accountability are different depending on whether you are seeking problem-solving orcompliance review. Requests to the Problem-Solving mechanism of the Office of

Accountability may be submitted by:

106 See http://www.opic.gov/who-we-are/office-of-accountability .107 See http://www.opic.gov/who-we-are/office-of-accountability/compliance-review (“These policies includesections 231 (n), 231A, 237(m), 239(g) and 239(i) of the Foreign Assistance Act of 1961, as amended, and OPIC’sEnvironmental Handbook - February 2004.”).

OPIC Quick Summary

Any individual or group may complain toOPIC about a project if they are located inthe project area and have concerns aboutadverse impacts of an OPIC-supportedproject. For a problem-solving complaint,there is also a requirement that thecomplainant be from a local community thatis or is likely to be materially, directly, andadversely affected by the project.

The Problem-Solving function addressescommunity complaints through methodssuch as independent fact-finding, dialoguefacilitation or mediation.

The Compliance Review function assessesand reports on complaints regarding OPIC’scompliance with its policies related toenvironment, social impacts, worker rightsand human rights.



52

1. “member/s of the local community who are, or are likely to be, materially, directly,and adversely affected by an OPIC-supported project,”108

2. an authorized representative of the affected community, or

3. the project sponsor (this is the US company that had received OPIC support for

their project).

Compliance Review requests may be submitted by:

• People in the project area with “concerns about adverse environmental, social, worker rights or human rights impacts of an OPIC-supported project,”109

• their authorized representative;

• OPIC’s President & CEO; or

• OPIC's Board of Directors.

A local representative of those in the project area may file a request for Problem Solvingor Compliance Review only if the representative clearly identifies the community they arerepresenting and shows evidence of the community’s permission to allow the representation.Furthermore, OPIC’s Office of Accountability allows representation by non-local people only

where “there is clear evidence that there is no adequate or appropriate representation in thecountry where the project is located”.110

What to Include in a Problem-Solving Complaint

As with the other mechanisms, the Office of Accountability requires that those filing a

request include their identifying information – they do not accept anonymous requests.However, you may ask for confidentiality when you file the request, along with a reason whyconfidentiality is needed.

Only OPIC-supported projects are eligible for a Problem-Solving consultation. You mayidentify OPIC support for a project by looking to an OPIC-issued “commitment letter” betweenOPIC and the project sponsor, or to an insurance contract signed by OPIC and the projectsponsor. Projects are no longer eligible for a Problem-Solving consultation when OPIC hasdisbursed the entire amount of the loan.

As with the World Bank Inspection Panel, prior to submitting a Problem-Solving

request, the project-affected person or people must have “made good faith efforts to bring theproblem to OPIC’s attention and/or to the attention of the sponsor or local community. Therequester will need to show that s/he has worked with OPIC and/or the project sponsor or localcommunity to try to address the problem.”111

According to the OPIC Office of Accountability website, the request “must be written inEnglish or the native language of the requesters and should include the following information:

108 See http://www.opic.gov/who-we-are/office-of-accountability/problem-solving .109 See http://www.opic.gov/who-we-are/office-of-accountability/compliance-review .110 See http://www.opic.gov/who-we-are/office-of-accountability/problem-solving .111 See http://www.opic.gov/who-we-are/office-of-accountability/problem-solving .



53

• The requester’s identity and contact information.

• The identity, contact information and credentials of any representative, and evidenceof the nature and scope of the representative authority.

• Whether the requester wishes his/her identity and/or information provided to theOffice of Accountability to be kept confidential, giving reasons.

• The nature and location of the project that is the subject of the request forconsultation, the identity of the project sponsor, and whether the project issupported by OPIC.

• A clear statement of the way in which the requesters have been or are likely to beaffected by the project.

• A succinct statement of efforts to resolve the problem, including the identity of theparties involved in, and relevant times of, those efforts, and specifically any contact

with the sponsor, OPIC or the government.

• A precise statement of how the requesters would like to see the problem resolved.

• Any other relevant facts (any supporting documents or relevant materials should beattached).”112

What to Include in a Compliance Review Complaint

As with the Problem-Solving function, anonymous requests for compliance review arenot permitted. However, you may ask for confidentiality when you file the request, along with areason why confidentiality is needed.

You may only file a request for Compliance Review if it relates “to a project for whichOPIC has executed a financial agreement or insurance contract with the sponsor, and OPICmaintains a contractual relationship with the project.”113

According to the Office of Accountability website, “Requests for compliance reviewmust be written in English or the native language of the requesters and should include thefollowing information:

• The requester’s identity and contact information.

• The identity, contact information and credentials of any representative, and

evidence of the nature and scope of the representative authority.

• Whether the requester wishes his/her identity and/or information provided to

the Office of Accountability to be kept confidential, giving reasons.

• The nature and location of the project that is the subject of the request, the

identity of the project sponsor, and whether the project is supported by OPIC.

• A clear statement of evidence (or perceived risk) of adverse environmental,

112See http://www.opic.gov/who-we-are/office-of-accountability/problem-solving .113 See http://www.opic.gov/who-we-are/office-of-accountability/compliance-review .



54

social, worker rights or human rights outcomes attributed to the project.

• If possible, identification of the OPIC statutes, policies, guidelines or proceduresrelated to environmental, social, worker rights or human rights impacts that arethe subject of the compliance review request.”114

Steps in the OPIC Office of Accountability Process

The Problem-solving Process

After receiving a completed request, the Office of Accountability registers and acknowledges therequest. Next the Director of the Office determines whether the request is eligible “guided bythe following criteria:

• the Problem-solving Request is filed by: (a) member/s of the local community who are, or are likely to be, materially, directly and adversely affected by anOPIC-supported project and there is prima facie evidence of such material, directand adverse effects, or (b) the project sponsor;

• any representatives’ authority to represent the local community or sponsor, andthe extent of that authority, are documented and verified;

• the Problem-solving Requesters have made good faith efforts to resolve theissues with the other project stakeholders, whether sponsor or local community,and/or OPIC staff; and

• the Problem-solving Request relates to a project for which OPIC has clearlyindicated interest in financing the project. Such interest would commence when acommitment letter or insurance contract is issued, and end with financial

completion or final disbursement.”

115

The Director then notifies the requester that the request has either been accepted orrejected. If the request is accepted, the Director “conducts a preliminary investigation, includingrequesting relevant OPIC management” to provide relevant information.116

The Office of Accountability then conducts the problem-solving consultation, “whichcan include dialogue, mediation or further investigation.”117 The Office may end the process atany time if after consulting the parties it is clear that the process is unlikely to lead to positiveresults.

Next, the Director reports the results and conclusions of the process to the OPICPresident, CEO and the parties. The results and conclusions are then made public.

Afterward, the Office of Accountability “monitors any changes made in response to the

114 See http://www.opic.gov/who-we-are/office-of-accountability/compliance-review .115 Administrative Order 05-02.1, OPIC Problem-solving & Compliance Review Procedures at 6.1.5 (July 1, 2005),available http://www.opic.gov/sites/default/files/files/Admin%20Order%20-%20Office%20of%20Accountability.pdf 116 See http://www.opic.gov/sites/default/files/docs/problemSolvingChart.pdf .117 See http://www.opic.gov/sites/default/files/docs/problemSolvingChart.pdf .



55

problem-solving initiative.”118

The Compliance Review Process

First, if the Office receives a complete request, they will register the request and

acknowledge to the requester that it was received.

The Director makes an eligibility determination “guided by the following criteria:

• the Request is filed by: (a) member/s of the local community with concernsabout adverse environmental, social, worker rights or human rights impacts of anOPIC-supported project, which may indicate a failure of OPIC to follow itsrelevant policies; (b) P&CEO; or (c) OPIC’s Board;

• any representatives’ authority to represent the local community, and the extent ofthat authority, are documented and verified; and

• the Compliance Request relates to a project for which OPIC has executed a

financial agreement or insurance contract with the sponsor, and maintains acontractual relationship with the project.”119

Unlike other IFI accountability mechanisms, the Director determines whether to acceptor reject the request for compliance review in consultation with the President and CEO of OPIC . TheDirector then notifies the requester and relevant parties of the decision.

The Office of Accountability then “conducts a preliminary investigation, referring torelevant OPIC management a request for comment and additional relevant information.” 120 TheOffice of Accountability then “examines whether OPIC has complied with relevant policies inthe course of design or implementation of an OPIC-supported project”.121 However, the Office

Director does not make the final decision as to whether or not there has been compliance.Unlike the other IFI mechanisms where the compliance decisions are made by independentexperts, here the President and CEO “determine whether there has been a failure to comply, and[whether] preventive or corrective action should be taken.”122

Thereafter, a draft report is circulated to OPIC management and relevant departments within OPIC for review and comment. Those comments are due within 15 working days.

After that, the Director of the Office of Accountability reports the results of thecompliance audit to the President and CEO of OPIC, notifies requesters of the results and theyare made public on OPIC’s website.

Finally, the Office of Accountability monitors implementation of any recommendationsmade by the President and CEO “in response to the investigation, & reports to the President &CEO on an annual basis.” 123

118 See http://www.opic.gov/sites/default/files/docs/problemSolvingChart.pdf .119 Administrative Order 05-02.1, OPIC Problem-solving & Compliance Review Procedures at 6.2.5 (July 1, 2005),on file with Accountability Counsel.120 See http://www.opic.gov/sites/default/files/docs/complianceReviewChart.pdf 121 See http://www.opic.gov/sites/default/files/docs/complianceReviewChart.pdf 122 See http://www.opic.gov/sites/default/files/docs/complianceReviewChart.pdf 123 See http://www.opic.gov/sites/default/files/docs/complianceReviewChart.pdf



56

Policies That May Apply in Claims to OPIC’s Office of Accountability

On October 15, 2010, OPIC adopted a revised Social and Environmental PolicyStatement (ESPS).124 The ESPS adopts the International Finance Corporation’s Performance

Standards on Social and Environmental Sustainability and Industry Sector Guidelines. Additionally, the ESPS includes standards related to human rights and internationally recognized worker rights.125

Confidentiality and Disclosure

“Subject to OPIC’s disclosure policy,126 summaries of problem-solving reports andcompliance review reports will be made publicly available. Annual reports on operations of theOffice of Accountability, including requests received, consultations and audits conducted, andtheir results will also be available on-line.

Information identified by OPIC’s disclosure policy and/or by OPIC, a requester, asponsor, co-financier or relevant government as confidential or sensitive may not be disclosed.Subject to OPIC’s disclosure policy and relevant legislation, such as the Freedom of Information

Act, confidential information provided to the Office of Accountability in the course ofmediation and investigations will remain confidential.”127

Requesters may ask that their identify remain confidential.128 If a Requesters wishes tokeep his or her identify confidential, he or she should state that in the request and providereasons.129

Example of an Office of Accountability Complaint

In late 2010 and early 2011, three villages in Oaxaca, Mexico filed complaints with theOPIC Office of Accountability regarding the Cerro de Oro Hydroelectric Project. Thecomplaints explain that the communities did not receive information about the Project and werenot consulted before construction began. They detail impacts to Chinanteco indigenous groupsthat were not considered during the Project’s design and reveal insufficient plans to address andmitigate social and environmental impacts, including destruction of important waterways thatcommunities depend on for consumption, household use and fishing. Complainants also noteproblems with land acquisition and the absence of a required local grievance mechanism.

The communities participated in a successful dialogue process through OPIC’s Office of

Accountability (“OA”), and were able to reach an agreement in March 2011 which halted projectconstruction and placed the future of an alternate design for the Project into the hands of thecommunities. In November 2011, the communities rejected the Company’s alternative Project

124 See http://www.opic.gov/sites/default/files/consolidated_esps.pdf .125 See http://www.opic.gov/doing-business-us/OPIC-policies/worker-human-rights.126 See http://www.opic.gov/who-we-are/information-quality-guidelines.127 http://www.opic.gov/who-we-are/office-of-accountability/confidentiality-disclosure.128 Administrative Order 05-02.1, OPIC Problem-solving & Compliance Review Procedures at 6.3.2 (July 1, 2005),on file with Accountability Counsel.129 See http://www.opic.gov/who-we-are/office-of-accountability/problem-solving ; http://www.opic.gov/who-we-are/office-of-accountability/compliance-review .



57

design. As of Summer 2012, the Project remains stopped.130

In April 2012, OPIC’s Office of Accountability determined in its Compliance AppraisalReport that a full compliance review to determine OPIC’s compliance with its own policies infunding the Cerro de Oro Hydroelectric Project was not necessary in this case. While the

Appraisal Report did not include formal compliance findings, it did generate several importantrecommendations for OPIC aimed at avoiding problems that arose in this case.131

This case demonstrates that, under certain circumstances, communities can achievesignificant results through the use of accountability mechanisms.

Where to Submit a Request

Requests should be submitted to OPIC headquarters in Washington, DC by mail, fax, e-mail or hand delivery. “If you fax or e-mail your request, you must still send an original copy

with original signatures by mail.”132 The Office of Accountability may be contacted at:

Director, Office of AccountabilityOverseas Private Investment Corporation1100 New York Ave., NW

Washington DC 20527 Tel. 1-202-336-8543Fax 1-202-408-5133E-mail: [email protected]

How to Locate Information About OPIC-Financed Projects

As an agency of the United States Government, OPIC must release informationpursuant to the Freedom of Information Act (FOIA). For instructions on how to requestinformation about OPIC through the FOIA process, visit http://www.opic.gov/who-we-are/foia.

130 See http://www.accountabilitycounsel.org/communities/mexico/.131 See http://www.opic.gov/sites/default/files/042712-cerrodeoroappraisalreport-english_0.pdf .132 See http://www.opic.gov/who-we-are/office-of-accountability/compliance-review .



58

Australian Export Finance & Insurance Corporation (EFIC)

What is EFIC?

The Australian Export Finance& Insurance Corporation (EFIC) is

Australia’s export credit agency. EFICis a Commonwealth authority andsupports the export of Australiangoods and services overseas byproviding financial solutions andadvice to Australian businesses andtheir overseas buyers.133

What is the EFIC Complaint

Mechanism?

EFIC has created a complaintmechanism to which any customer, client, individual, group, community, entity or other partyconcerned about, affected by or likely to be affected by EFIC’s activities or supported projects,can submit a complaint.134 All complaints are reported to the EFIC Board Audit Committee.


The complaint must be in writing, but does not need to follow any specific format.Complaints are recommended to include:

• The name and contact information of the complainant;

• If someone else is representing the complainant, contact information for therepresentative;

• An outline of the complaint and any previous efforts to resolve the issue;

• A description of the desired result or outcome of the complaint;

• Whether complainant has had any previous contact with EFIC on this or similar issues;and

• If desired, a request that the identity of the complainant or party being represented, orany information in the complaint be kept confidential, support by a statement of reasons

for the request.

Complaint Process

There is limited information available about the details of this process.

133 See EFIC’s Vision, Mission and Values, available athttp://www.efic.gov.au/about/Pages/ourvisionmissionandvalues.aspx 134 See EFIC Complaints Mechanism’s website, available at http://www.efic.gov.au/ABOUT/Pages/Complaints-mechanism.aspx

EFIC Quick Summary Anyone concerned about an EFICsponsored activity can submit a complaint tothe Complaint Mechanism who willinvestigates and respond to the complaint.

Emphasizes is placed on dispute resolution,potentially through mediation.

Actions and decisions of the Complaint

Mechanism can be appealed to theCommonwealth Ombudsman.



59

The EFIC Complaint Mechanism will notify the complainant that the complaint hasbeen received within five business days. In the notification, the complainant is provided with acontact person within the EFIC Complaint Mechanism.

At this time, the complaint is recorded on EFIC’s Incident Register and reported to the

EFIC Board Audit Committee. The Complaint Mechanism then investigates the complaint,potentially contacting the complainant. Ten business days after notification, the complainant isprovided with a written response to the complaint. If a response cannot be made within the tenday timeframe, EFIC will explain why, what they are doing and when the complainant canexpect to receive an answer.

The EFIC Complaint Mechanism expects most complaints between EFIC and thecomplainant to be resolved. However, after agreement with the complainant, the ComplaintMechanism might involve other parties in the resolution process such as mediators or externalexperts. The complaint may also be referred to another party for resolution. EFIC provides noadditional information about how this dispute resolution process would work.

Confidentiality

Complainants can request in the complaint that their complaint or identity be keptconfidential. Such a request will be respected unless disclosure is required “(i) under anyapplicable law, rule or regulation or (ii) by any competent judicial, governmental, supervisory orregulatory body or (iii) under any OECD or other international instrument to which [EFIC] issubject.”135 EFIC’s ability to provide information to complainant might be restricted by EFIC’scontractual obligations. EFIC might undertake to keep transaction information confidential.

If Unsatisfied, Opportunity to Appeal to the Commonwealth Ombudsman

The Commonwealth Ombudsman can investigate complaints about actions anddecisions of EFIC Complaint Mechanism. Complaints can be made to the Ombudsman bytelephone, in person, in writing, by fax, or using an online complaint form.136 Translationservices can also be provided.


Complaints can be made using either the online form available at the website orsubmitted to:

General CounselExport Finance and Insurance CorporationPO Box R65Royal Exchange NSW 1223

AustraliaFAX: +61-2-9251-3851email: [email protected]

135 See EFIC Complaints Mechanism’s website, available at http://www.efic.gov.au/ABOUT/Pages/Complaints-mechanism.aspx 136 See Commonwealth Ombudsman for more information http://www.ombudsman.gov.au/pages/contact-us/



60

Canadian Corporate Social Responsibility (CSR) Counsellor

What is the CSR Counsellor?

The Office of the ExtractiveSector CSR Counsellor is a federalagency set up by the Canadiangovernment in October of 2009(though it opened in March of 2010) tofurther its corporate socialresponsibility strategy for Canada’sinternational mining, oil, and gassectors.137 The Office has both anadvisory role and a dispute resolutionrole referred to as the Review Process.

What is the CSRCounsellor’s Review Process?

In the Review Process, the CSRCounsellor facilitates dispute resolutionbetween Canadian companies andcommunities outside of Canada.Consequently, the Counsellor existsonly as a neutral convening institutionfor dispute resolution, and cannot

make any compliance findings.

Disputes or issues must be connected with the Canadian Government’s endorsedPerformance Guidelines, which include the IFC Performance Standards, the VoluntaryPrinciples on Security and Human Rights and the Global Reporting Initiative. The mandate ofthe Counsellor is very strict on not accepting requests regarding Canadian or host country law,international law or other criminal activities. Requests for review must also relate to events thattook place after October 19, 2009.138

Who can bring a request for a Review Process?

Requesters must be either:

• a Canadian mining, oil, or gas company (registered or head-quartered in Canada); or

• a project-affected individual, group, or community outside of Canada who is beingaffected by the activities of a Canadian extractive sector company not in compliance withthe Performance Guidelines.

137 See http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/review_process-processus_examen-eng.pdf 138 See http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/rules_procedure-regles_procedure-eng.pdf

CSR Counsellor QuickSummary

The CSR Counsellor performs disputeresolution in cases involving the Canadianprivate extractive sector.

Anyone affected by a Canadian mining, oil orgas company can complain, but disputesraised must be connected with thePerformance Guidelines.

If a request passes the Initial Assessment aReview Process is initiated with a focus onmediation through information gathering,relationship building and dialogue.

The Review Process ends if 1) an agreementis reached between the parties (completion);or 2) no progress is made in mediation(termination). Either way a Final Report willbe published.



62

decision, which will also be published on the Counsellor’s website.

(2) Informal Mediation. This stage begins with a “trust-building” phase of up to 120business days to determine if a structured dialogue will be appropriate. Gathering ofpublicly available information and engagement of independent experts takes places

during this phase. If no progress is made, the Review Process may be terminated,and a final report will be published. If parties make progress, the Review willcontinue to the “structured dialogue” phase of up to an additional 120 business days.If the parties reach an agreement, the Review will be considered complete. If noagreement is reached, the Review Process will be terminated.

(3) Fact-finding. Independent third parties, or the participants themselves, mayconduct fact-finding throughout the Review Process, with the intention to clarify theissues under dispute and identify possible alternatives for resolution of the dispute.

(4) Access to Formal Mediation. If the Counsellor finds it appropriate, an external

mediator may be engaged to assist the parties in the resolution of their dispute.

(5) Reporting. At the completion or termination of the Review Process, the Counsellor will publish a final report.

Confidentiality

A requestor can request confidentiality, but this is only with regards to any informationto be published on the CSR Counsellor’s website.

The CSR Counsellor and persons acting on his or her behalf shall not disclose any

information that is acquired while carrying out the CSR Counsellor’s responsibilities without thepermission of any person affected, except in accordance with an Act of Parliament.

Strategic Considerations

The Review Process raises several issues to consider before filing a complaint. First, theProcess is entirely voluntary, so a party may decline to participate. Second, the CSR Counsellorcannot independently investigate or make findings about whether a company is in compliance

with any standards. Third, the CSR Counsellor takes a fairly narrow view of its mandate and itseligibility requirements, and will either exclude any other issues raised or ask requestors raisingoutside issue, such as compliance with national or international law, to specifically limit their

request. Finally, the CSR Counsellor may require requesters to use project-level grievancemechanisms prior to submitting a request.


Requests for Review must be received in writing, via electronic or regular mail or fax to:

The Extractive Sector Corporate Social Responsibility (CSR) Counsellor1 Front Street West, Suite 5110

Toronto, Ontario M5J 2X5 CANADA; Tel: +14169732064; Fax: +14169732104Email: [email protected]



P ART IV TRAININGS, CONSULTATIONS & MORE INFORMATION

It may help to use this Guide along with interactive trainings and/or consultations with Accountability Counsel. Communicating with Accountability Counsel may help you todetermine which tools or strategies may be the most effective for your particular circumstances.

Some of the tools discussed in this Guide are appropriate for some communities but may not beappropriate for others. Trainings or consultations may also enable you to:

• work in collaboration with local, regional or international organizations to gain fromtheir experience and work with them in solidarity; and

• may assist others working on similar issues to be aware of your campaign.

To schedule a training session for your group or organization, for a consultation aboutparticular issues, or for a referral to a local lawyer or organization with expertise, contact

Accountability Counsel at [email protected] .

This Guide includes information about a limited set of accountability mechanisms, butthere are a number of other accountability mechanisms around the world. While theinformation in this Guide is regularly updated, please be sure to check before filing a complaintthat you are referring to the latest guidelines and policies of the accountability mechanisms. Ifyou would like to access the full and most recent version of the Accountability Resource Guide,

which includes regional banks from Africa, Latin America and Europe, as well as other exportcredit agencies, it is available for download at:http://www.accountabilitycounsel.org/resources/arg/.