International financial institutions (‘IFIs’), such as the World Bank and the International Finance Corporation (‘IFC’), have progressively refined their own operational policies and established institutional accountability mechanisms, such as the Inspection Panel and Compliance Advisory Ombudsman, in response to external and internal demands for their enhanced accountability. This article argues that these two developments are instrumental in transforming IFIs such as the World Bank and the IFC into law-making and law-governed institutions. We argue that the operational policies, as well as the institutional processes surrounding these policies (that is, rule-making, rule-application and rule-enforcement processes), should be assessed in legal terms – even though the legal nature of the operational policies are contested, and the policies are only applicable to IFI staff and their borrowers. The main objective of this article is to provide an analysis in support of this contention.
Freestone (2003)supra note 19 p. 142 quoting Shihata (2000) supra note 5 p. 42.
Shihata (2000)supra note 5 p. 41.
Hunter (2010)supra note 5 p. 199. And see Shihata (2000) supra note 5 pp. 155–203. For an account of NGO participation in the 1999 Board review of the Inspection Panel Resolution see D. Bradlow ‘Precedent-Setting NGO Campaign Saves the World Bank’s Inspection Panel’ (1999) 6 Human Rights Brief p.7.
Effective since 1 July2010. The new policy makes a significant portion of documents available (e.g. minutes of Board meetings) and works on the principle “that the World Bank will disclose any information in its possession that is not on a list of exceptions” (compared to working with a list of documents that are available to the public). Another change of note is the possibility of appeal should an individual be refused access to a particular document. See World Bank Group ‘New World Bank Access to Information Policy Takes Effect July 1’ (3 June 2010) Press Release No. 2010/448/EXC available at : <http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0contentMDK:22105228~menuPK:51455649~pagePK:64141683~piPK:64141620~theSitePK:50218400.html>.
As at July2012only 29 (out of 86) CAO cases went to the (initial) compliance review stage; moreover in several of these compliance review cases there is (currently) no documentation available (typically because of current confidentiality issues or because the case did not actually proceed to the full compliance audit stage): See e.g.Indonesia Wilmar Group-02/Sumatra (Complaint filed 1 December 2008); Georgia / BTC Pipeline-26/Krstanisi (Complaint filed 12 December 2005); and Georgia / BTC Pipeline-27/Tbilisi (Complaint filed 15 June 2005). Also see supra note 97.
Shihata (2000)supra note 5 41–49. See also e.g.DRC Anvil Mining Congo SARL 01 WB President Request (Complaint filed 1 July 2005) Compliance Advisor Ombudsman Audit Report (November 2005) para. 3.3.4: “The CAO does not claim that if Anvil had fully implemented the Voluntary Principles the events at Kilwa would have taken a different course. This remains an area of uncertainty and in volatile operating environments there is a residual risk that abuses may happen even where the Voluntary Principles have been followed. Had the Voluntary Principles been applied in a systematic manner however they would have provided an essential bridge across the current disconnect between the treatment of conflict as an insurable risk and the potential for a project to influence the dynamics of conflict in a way that might cause harm to local communities. For MIGA’s due diligence to have been adequate it would have needed to systematically review its clients’ work on implementing the Voluntary Principles and satisfy itself of the adequacy.”
Bottelier (2001)supra note 20 p. 11.
CAO Operational Guidelinessupra note 100 para. 3.3.3 (emphases added).
Shihata (2000)supra note 5 pp. 41–49.
CAO Operating Guidelines p. 18.
CAO Operating Guidelines p. 18.
CAO Operating Guidelines p. 19.
CAO Operating Guidelines p. 26.
CAO Operating Guidelines p. 33.
Chesterman (2008)supra note 45 p. 15.
As at 1 July2002available at <http://go.worldbank.org/WTA1ODE7T0>. Note: at the time of writing a review of the World Bank Safeguard Policies was underway.
As at 1 July2002available at <www.ifc.org/sustainabilityframework>.