The Operational Policies of the World Bank and the International Finance Corporation

Creating Law-Making and Law-Governed Institutions?

in International Organizations Law Review
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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.

The Operational Policies of the World Bank and the International Finance Corporation

Creating Law-Making and Law-Governed Institutions?

in International Organizations Law Review

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References

22

ILA Report 2004p. 6.

27

ILA Report 2004p. 5.

30

Anthony et al. (2011)supra note 28 pp. 1–16; Kingsbury et al. (2005) supra note 29 p. 139.

35

Klabbers (2009)supra note 25 pp. 4–5.

50

Chesterman (2008)supra note 45 p. 35.

71

Freestone (2003)supra note 19 p. 144.

72

Shihata (2000)supra note 5 p. 13.

76

Freestone (2003)supra note 19 p. 143.

77

Definitions Pagesupra note 75.

78

Freestone (2003)supra note 19 p. 143.

79

As at June 2012there were only nine Op Memos and one GP.

80

Freestone (2003)supra note 19 p. 143.

98

IFCCAO Annual Report 2011 p. 9 available at: <www.cao-ombudsman.org/publications/>.

103

Freestone (2003)supra note 19 p. 142.

104

Freestone (2003)supra note 19 p. 142 quoting Shihata (2000) supra note 5 p. 42.

105

Shihata (2000)supra note 5 p. 41.

107

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.

109

Effective since 1 July 2010. 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>.

119

As at July 2012only 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.

130

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.”

142

Bottelier (2001)supra note 20 p. 11.

180

CAO Operational Guidelinessupra note 100 para. 3.3.3 (emphases added).

186

Shihata (2000)supra note 5 pp. 41–49.

229

CAO Operating Guidelines p. 18.

230

CAO Operating Guidelines p. 18.

231

CAO Operating Guidelines p. 19.

232

CAO Operating Guidelines p. 26.

233

CAO Operating Guidelines p. 33.

241

Chesterman (2008)supra note 45 p. 15.

246

As at 1 July 2002available at <http://go.worldbank.org/WTA1ODE7T0>. Note: at the time of writing a review of the World Bank Safeguard Policies was underway.

247

As at 1 July 2002available at <www.ifc.org/sustainabilityframework>.

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    The Effects of Operational Policy Rule-making Processes at the World Bank and IFC.

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