Americas -- Guide to using the Independent Consultation and Investigation Mechanism (ICIM) of the Inter-American Development Bank

Independent Consultation and Investigation Mechanism
Inter-American Development Bank

 
 
 

The World Bank and the Inter-American Development Bank (IDB) finance many development projects in the Americas.  These projects must comply with the banks’ own internal policies.  Both of these banks have accountability mechanisms that can review the project’s compliance with the bank’s policies.  This guide provides information about filing a request for consultation or investigation with the Independent Consultation and Investigation Mechanism (ICIM) of the IDB under the Policy Establishing the Independent Consultation and Investigation Mechanism (ICIM Policy) (February 2010) (according to the IDB web site this will be effective June 30, 2010).

If you do not know whether the project that concerns you is financed by a multilateral development bank, you can look in the project database provided on-line by each of the banks, or you can contact ELAW to help determine whether there is international financing for your project.  These accountability mechanisms should only be considered one of many tools available to challenge a project that will have local impacts.

All references in this document refer paragraphs of the Policy Establishing the Independent Consultation and Investigation Mechanism (February 2010), which can be found along with other information related to the ICIM at:

http://www.iadb.org/aboutus/index.cfm?lang=en&id=6111&artid=6111
 

I.  Before Filing a Request

It is critical to communicate your concerns to development banks during the early stages of the project approval process. These early communications could result in improved projects or a bank deciding not to finance a project. Waiting until the project is approved is often too late to prevent harmful impacts. Communicating your concerns to bank staff is also a prerequisite to filing a formal request (as outlined below).

Someone concerned about a IDB-financed project should first contact IDB management about their concerns. This allows IDB management an opportunity to address the issues raised before initiating a formal process.

IDB Headquarters:

Address:
1300 New York Avenue, NW
Washington, DC 20577
United States of America

By phone: (202) 623-1000
By fax: (202) 623-3096
By e-mail: pic@iadb.org

IDB local offices can be found on the IDB website at:
http://www.iadb.org/en/countries/select-a-country,1000.html

or

http://www.iadb.org/es/paises/selecione-un-pais,1000.html
 

II.  Who may file a Request?

A Request may be filed by “one or more persons, groups, associations, entities, or organizations (including, without limitation, from groups, associations, entities, or organizations that are community based, or that are formed by indigenous or Afro descendent peoples or entities that are organized as non-governmental organization), residing in the country(ies) where the Bank-Financed Operation is or will be implemented.” Para.  30.  The ICIM will protect the confidentiality of the Requester if requested.  Para.  33.

A representative (located anywhere) may file a Request on behalf of a Requester located in the project host country, as long as the Request identifies the local Requester and demonstrates the representative has proper authority to file the Request.  Para.  30.
 

III.  Phases of the ICIM Process

The ICIM consists of two phases: Consultation and Compliance Review.

The Consultation Phase is designed to “provide an opportunity, applying consensual and flexible approaches, to address the concerns of a party that believes it has been or could reasonably be expected to be directly, materially adversely affected by the failure of the IDB to follow its Relevant Operational Policies in a Bank-Financed Operation.” Para.  38.

The Compliance Review Phase is designed to enable “a Requester to request an investigation of a Bank-Financed Operation by a Panel of independent experts if the Requester reasonably asserts that its rights or interests have been, or could be expected to be directly, materially adversely affected by the failure of the IDB to follow its Relevant Operational Policies in a Bank-Financed Operation.  The objective of a Compliance Review investigation shall be to establish whether (and if so, how and why) any Bank action or omission, in respect of a Bank-Financed Operation, has resulted in non compliance with a Relevant Operational Policy and direct, material adverse effects (potential or actual) to the Requester.” Para.  53.

The ICIM policy states that a Requester may ask that both Phases be undertaken, but that the “Consultation Phase Request will be processed first.” Para 35.  The intent of the ICIM Policy seems to be that a Requester must initiate a Consultation Phase review before a Compliance Review Phase is commenced.  The Policy is not perfectly clear on this point.  In any case, any party may opt out of any part of the Consultation Phase after which the Phase “shall be deemed concluded,” and the Request may be forwarded to the Compliance Review Phase.  Para.  47.  In addition, a Request may not meet the eligibility requirements for the Consultation Phase found at paragraph 40 in which case the Request may also move to the Compliance Review Phase.  Arguments could be made that a Request does not need to be presented for a Consultation Phase review before commencing a Compliance Review.
 

IV.  How to Submit a Request

The ICIM will accept requests in any language, but additional time will be needed to process and translate requests submitted in languages other than the official languages of the IDB which are Spanish, English, Portuguese, and French.  ICIM, para.  32(b).

A written Request may be sent by electronic mail, regular mail, fax or a text message (to the ICIM Office phone number).  Requests may also be submitted orally if a subsequent signed communication is provided.  ICIM, para.32(a).

Requests may be delivered to the ICIM Office through the following contact information:

Address:
Independent Consultation and Investigation Mechanism Office
Inter-American Development Bank
1300 New York Avenue, NW
Washington, DC 20577
United States of America

Telephone: (202) 623-3952
Fax: (202) 312-4057
E-mail: mechanismo@iadb.org

Requests may also be delivered to any local IDB Office (attention ICIM Office) for delivery to the ICIM Office.  Para.  32(c).

The ICIM Executive Secretary will acknowledge receipt of the request within five business days by electronic mail (or regular mail if no e-mail address is provided).  This is simply an administrative acknowledgement that the Request was received, not a determination on the eligibility of the Request.  Para.  34.
 

V.  Timing

Requests filed “after twenty-four (24) months of the last disbursement” will be excluded from review under the ICIM.  Para.  37(f).  Experience with accountability mechanisms at other banks tells us that it is best to file a request before the last funds have been disbursed, while the bank still has influence over the project.
 

VI.  Information to include in a Request

A Request should allege that the Requester “has been or could be expected to be directly, materially adversely affected by an action or omission of the IDB in violation of a Relevant Operational Policy in a Bank-Financed Operation and has described in at least general terms the direct and material harm caused or likely to be caused by such action or omission in the Bank-Financed Operation.” Para.  40(f).

The Request should include the following information (to be found eligible, all of this information must be found in the Request or in IDB records):

* Names and contact information for the Requester;
* Names and contact information for the Representative, if there is one, and proof of authority to file the Request;
* Identification and location of the Bank-financed project;
* Information demonstrating that exclusions found in paragraph 37 of the ICIM Policy do not apply;
* A description of the harm caused or likely to be caused;
* An act or omission of the IDB in violation of a Relevant Operational Policy;
* The steps taken to discuss the matter with Management and its response; and
* The outcome the Requester would like to see.

A Request for the Consultation Phase should also include:

* Demonstration that the parties are amenable to a Consultation Phase exercise; and
* Demonstration that a Consultation Phase exercise may help address concerns raised, resolve a dispute, or other wise have a positive result.

A Request for the Compliance Review Phase should also include:

* Demonstration that a Compliance Review may assist in determining whether non compliance by the Bank with a Relevant Operation Policy has led to direct, material, adverse effects (potential and actual) to the Requester.
 

VII.  Relevant Operational Policies

A Request must relate to an action or omission of the IDB in violation of a Relevant Operational Policy.  Relevant Operational Policies are defined to include “only the following: those Board-approved environmental and associated safeguards, equality in gender, and information disclosure policies, as they may be amended from time to time .  .  .  which apply to the design, appraisal, approval and/or implementation of Bank-Financed Operations, as well as those relating to the enforcement of compliance with a borrower/recipient's obligations required by such policies.”

Para.  26. 

The current list of Relevant Operational Policies (OPs) includes:

· OP-102 (Disclosure of Information)

· OP-703 (Environmental and Safeguards Compliance Policy)

· OP-704 (Disaster Risk Management Policy)

· OP-761 (Women in Development)

· OP-765 (Indigenous People) and · OP-710 (Involuntary Resettlement)

Para.  26. 

The definition of Relevant Operational Policies seems to omit other important policies such as policies governing the agricultural sector (OP-721), industrial development (OP-722), forestry development (OP-723), fisheries development (OP-724), mining (OP-725), tourism (OP-726), transportation (OP-731), telecommunications (OP-732), energy (OP-733), and electric energy (OP-733-1).  We recommend that you primarily base your Request on the eligible Relevant Operational Policies (in the list above), but that you may also want to note other policies that have been violated if they are relevant. 

VIII.  Projects excluded from ICIM review

The Policy explicitly states that the ICIM will not apply to:

a.  actions that are the responsibility of parties other than the Bank, such as a borrower/recipient, technical cooperation beneficiary, or executing agency, and that do not involve any action or omission on the part of the Bank;

b.  Requests related exclusively to the laws, policies or regulations of the host country(ies), borrower/recipient or the executing agency;

c.  actions or activities that do not relate to a Bank-Financed Operation or that are not subject to the Bank's Relevant Operational Policies;

d.  procurement decisions or processes (in which case the Executive Secretary shall redirect the Request to the appropriate office within the Bank);

e.  a particular matter or matters that have already been reviewed pursuant to the Mechanism, or its predecessor, unless justified by new evidence or circumstances not available at the time of the initial Request;

f.  Requests dealing with a Bank-Financed Operation that are filed after twenty-four (24) months of the last disbursement;

g.  ethics or fraud questions, specific actions of Bank employees, non-operational matters such as internal finance or administration, allegations of corrupt practices, or other matters subject to review by other bodies established by the Bank (in which case the Executive Secretary shall redirect the Request to the appropriate office within the Bank);

h.  any Request that on its face (i) is without substance, or (ii) has been submitted to gain a competitive business advantage; and

i.  Requests that raise issues under arbitral or judicial review by national, supranational or similar bodies.

Para.  37.
 

IX.  The Consultation Phase

Within five days of receipt of a Request for Consultation Phase review, the Executive Secretary of the ICIM will forward the Request to the Project Ombudsperson.  Para.  39.  The Ombudsperson will determine the eligibility of the Request.  Id.

The Project Ombudsperson is a full-time employee of the IDB selected through a selection process briefly described in paragraph 74 of the ICIM Policy.  The Policy states that the “Project Ombudsman shall be independent of any unit or official of the Bank and shall act on his or her own initiative .  .  .  .  ” Para.  74.

Ineligibility for the Consultation Phase

If the Request is determined to be ineligible for the Consultation Phase, the Project Ombudsperson will notify the Requester and others of ineligibility in writing.  If the Requester wishes to proceed under the Compliance Review Phase, the Request will be forwarded to the Panel Chairperson for a determination of eligibility under the Compliance Review Phase.  Para.  41.

Eligible Request -- Assessment

If the Request is deemed eligible for Consultation Phase, the Executive Secretary will register the Request and notify the Requester and others.  Para.  39.  The Project Ombudsperson will conduct an assessment.  Para.  42.  The assessment “may involve a desk review, a site visit, discussions with the Requester, Management, or other relevant parties, public meetings, retainer of experts, or other steps.” Para.  43.  Any party may unilaterally opt out of the Consultation Phase at any time.  Para.  42.

The assessment must be completed within 120 days of the date the Request was determined eligible for the Consultation Phase.  Para.  45.  The Project Ombudsperson will publish a report.  Id.  “The assessment will conclude with a decision whether or not to proceed in a Consultation Phase exercise, and, as appropriate, a clear outline of the course of action proposed and agreed to by the parties.” Para.  44.  If it is determined that a collaborative solution is not possible, a Compliance Review process will be initiated.  Id.

Consultation Phase Exercise

If a decision to continue with the Consultation Phase Exercise was reached, an exercise to address the issues raised by the Requester will be undertaken.  Para.  46.  The exercises may include fact-finding, encouraging self-generated solutions, mediation or other activities.  Id.  There are “no standard rules, timeframes or procedures for this phase.” Id.

Any party may opt out of the exercise.  Para.  47.  Any part of the exercise “conducted in the territory of the borrower/recipient country may be conducted only after obtaining the written non objection of the country, which must be requested in advance of the visit .  .  .  .” Para.  49.

The Project Ombudsperson will publish a report on the Consultation Phase exercise and its results.  Para.  51.  If a settlement agreement is reached it will be published unless the parties agree on confidentiality.  Id.  The Project Ombudsperson will arrange for any required monitoring of implementation of any agreement reached.  Para.  52.

The initiation of the Consultation Phase does not halt the implementation of the Bank-Financed Operation.  Para.  48.  If the Project Ombudsperson believes that “serious, irreparable harm may result if processing or execution of a Bank-Financed Operation continue the Project Ombudsperson may recommend .  .  .  that processing or execution be halted.” Id.
 

X.  The Compliance Review Phase

A Request will proceed to consideration under Compliance Review Phase if the Requester indicated a desire for a Compliance Review, and if the Consultation Phase ended for any reason, or the Request was determined to be ineligible under the Consultation Phase.  Para.  54.  Within five days of receipt of a Request for Compliance Review the Executive Secretary of the ICIM will forward the Request to the Panel Chairperson.  Para.  55.  The Panel Chairperson will determine the eligibility of the Request within 15 days.  Id.

The Panel is a five-member panel, including the Panel Chairperson, established by the Bank to perform Compliance Review Phase investigations.  Paras.  77-78.  This Panel shall report to the Bank Board.  Para.  77.  “The Panel shall be independent of any unit or official of the bank and shall act on its own initiative, consistent with this Policy.” Id.  Selection and terms of the Panel are outlined in paragraphs 77 to 83 of the ICIM Policy.

Ineligibility for Compliance Review Phase

If the Request is determined to be ineligible for the Compliance Review Phase, the Panel Chairperson will notify the Requester and others of ineligibility in writing.  Para.  57.

Eligible Request -- Terms of Reference

If the Request is determined to be eligible for Compliance Review, the Panel Chairperson will create a Panel for the investigation that will consist of the Chairperson and two other members.  Para.  58.  The three-person Panel will prepare terms of reference (TOR) for the investigation which will include: “the objectives of the investigation, the specific investigative criteria identified, a brief description of the Bank-Financed Operation, proposed schedule and budget for the investigation, anticipated use of consultants, and a statement of the deliverables, which shall comprise the Panel report .  .  .  .” Para.  58.  The Requester will be consulted during the preparation of the TOR and will have 20 days to provide written comments on a draft TOR.  Id.  The TOR and a recommendation to conduct a Compliance Review will be submitted to the Bank Board, Donors Committee, or Bank President (as appropriate) which will have an opportunity to approve the recommendation or object.  Para.  59.

Investigation

The Panel will then conduct a Compliance Review as outlined in the TOR.  Para.  60.  The Review may include site visits, obtaining expert advice, or other actions as appropriate.  Para.  61.  All stakeholders will be consulted during the process and will have an opportunity to submit written comments, which will be annexed to the final report.  Id.  The Policy does not set a timeframe in which the investigation must be completed, but requires notice if the Review will take more than 30 days longer than outlined in the TOR.  Para.  62.

Any part of the investigation “to be conducted in the territory of a borrowing/recipient country may be conducted only after obtaining the written non objection of the country, which must be requested in advance of the visit .  .  .  .” Para.  63.

Compliance Review Report

The Panel shall publish a report which will include: “the Panel's findings as to whether (and if so, how and why) any Bank action or omission in respect of a Bank-Financed Operation has resulted in non compliance with a Relevant Operational Policy (identifying each such Policy and describing any such non compliance) and direct, material adverse effects (potential or actual) to the Requester (including a description of any such effects), and a description of the Panel's methodology used to determine its findings of harm, causality and the link to each Relevant Operational Policy with which there may have been non-compliance.  The Panel may also include its recommendations, views or observations in regard to its findings or systemic or other issues .  .  .  .” Para.  64. 

“In cases where the Panel believes that serious, irreparable harm may result if processing or execution of a Bank-Financed Operation continue, the Panel may recommend .  .  .  that processing or execution be halted.  .  .  .  The Panel shall not recommend the award of compensation or any other benefits to any person, entity or government.  This does not preclude, however, the possibility of compensation or other benefits that may be expressly contemplated in any relevant Bank policy and legal documentation.” Para.  66.

“The Panel must try to arrive at its findings by consensus; but, if this is not possible, the views of each participating member of the Panel must be expressly stated in its report.” Para.  67. 

The Panel will provide a draft report to Bank Management and the Requester who will have 45 days to submit written comments on the draft (which will be annexed to a final report.  Para.  68.  The Panel may make changes to the report before submitting a final report to the appropriate Bank officials.  The final report will be provided to the Requester and published within 20 days of providing it to Bank officials.  Paras.  68-70.

Bank Actions

The Bank Board, Donors Committee, or the President (as appropriate) will determine whether any actions should be taken in response to the final report.  These Bank officials will instruct Bank management to take any required actions, and inform the Panel of its action plan.  This information will be published.  Para.  71.  Bank officials may request that the Panel monitor implementation of any remedial or corrective actions.  Para.  72.

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