Catalog

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p. 9 of 16 BACK | NEXT Executive Summary Current ADB Inspection Function Consultations on the Review of the ADB Inspection Function Proposal for a New ADB Accountability Mechanism: A Two-Step Approach of Consultation and Compliance Review Reasons for a New ADB Accountability Mechanism Introduction to the New ADB Accountability Mechanism Specific Issues Related to the New ADB Accountability Mechanism Policy under the New ADB Accountability Mechanism Consultation Phase Compliance Review Phase Resource Implications Status of Operations Manual Updating in the Context of the Inspection Policy Effective Date of the New ADB Accountability Mechanism Transition Arrangements Review of the ADB Accountability Mechanism Recommendation

ADB Accountability Mechanism : Proposal for a New ADB Accountability Mechanism: A Two-Step Approach of Consultation and Compliance Review

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E. Consultation Phase

1. Basic Features and Appointment

62. The SPF will be a special appointee at the equivalent level of director general appointed by the President, after consultation with the Board. The SPF will report directly to the President. As the SPF will be independent of the ODs and have full control of the consultation phase, he/she will enhance the credibility of ADB in facilitating the resolution of problems in projects in which it is a principal interested party. The Office of the Special Project Facilitator (OSPF) will include one professional staff member and two administrative staff/national officers to provide secretariat support. Subject to the President's approval, the SPF may engage technical experts as consultants in accordance with ADB's Guidelines on the Use of Consultants and other arrangements satisfactory to ADB, to assist him/her in his/her work, including monitoring activities.

63. The selection criteria for the SPF will include (i) the ability to deal thoroughly and fairly with complaints brought to him/her; (ii) integrity and independence from the ODs; (iii) exposure to developmental issues and living conditions in developing countries; and (iv) knowledge of and experience with the operations of ADB or comparable institutions, and/or private sector experience. The term of the SPF will be 3 years, renewable. The SPF must not have worked in any OD for at least 5 years prior to the appointment. The SPF must disclose to all stakeholders immediately upon learning that he/she has a personal interest or has significant prior involvement in the matter. In the discharge of his/her function, the SPF will have access to all ADB staff and Management, and all ADB records the SPF deems relevant.

2. Functions of the Special Project Facilitator

64. The consultation phase is to assist project-affected people with specific problems caused by ADB-assisted projects through a number of informal, consensus-based methods with the consent and participation of all parties concerned, e.g., consultative dialogue, good offices, or mediation. The SPF will seek consensus and agreement among the parties as to the identification of the matters in dispute, the modality of problem-solving, and its time frame by creating a common forum conducive to problem-solving among the parties concerned. The SPF may suggest different approaches, including convening meetings with various stakeholders, organizing and facilitating consultation processes, or engaging in a fact-finding review of the situation. Appendix 7 summarizes suggested modes of response to complaints and the dispute settlement procedure, all subject to the consent of the parties concerned.

65. OSPF will prepare, after consultation with the Board, operating procedures to give effect to the operational provisions in this paper. The operating procedures will be approved by the President and furnished to the Board. OSPF will also adopt administrative procedures to implement its powers and obligations. These administrative procedures will be complementary to the provisions in this paper and to the operating procedures, as well as to any ad hoc procedures adopted by OSPF for the conduct of any complaint and follow-up action related to the complaint pursuant to the operating procedures. In light of experience, OSPF will, if it considers necessary, revise the administrative procedures. At any time after the President's approval of the operating procedures, OSPF may review these procedures, and recommend changes, after consultation with the Board, for the President's approval.

66. Specific activities of OSPF include the following:

1. collate and integrate internal and external experiences of problem-solving to be fed back into ADB's operations, including the formulation, processing, or implementation of projects;

2. provide generic support and advice to the ODs in their problem-solving activities but not for specific cases under review by the ODs;

3. conduct outreach programs to the public;

4. review and assess complaints;

5. obtain from the ODs all materials and analyses relating to the complaints;

6. facilitate a consultative dialogue, use its good offices, and/or facilitate the establishment of a mediation mechanism (see Appendix 7);

7. inform the Board and other stakeholders about the results of specific consultation activities; and

8. report at least annually to the President on the progress of activities, with a copy to the Board, with the publication of an annual report which will be integrated with CRP's annual report.

67. The Office of the General Counsel (OGC) will be responsible for providing OSPF with advice on any matters relating to ADB's rights and obligations with respect to any complaint, including the issuance and implementation of any course of action taken under the consultation process.

3. Eligibility

68. Who Can File a Complaint. Complaints may be filed only by (i) any group of two or more people (such as an organization, association, society, or other grouping of individuals) in a borrowing country where the ADB-assisted project is located or in a member country adjacent to the borrowing country; (ii) a local representative of the affected group; or (iii) a nonlocal representative, in exceptional cases where local representation cannot be found and the SPF agrees. The term "ADB-assisted project" refers to a project financed or to be financed, or administered or to be administered, by ADB and covers both public sector operations (loan, guarantee, or TA grant) and private sector operations (loan, guarantee, equity investment to the extent ADB's operational policies and operational procedures are covered by it, or TA grant). If a complaint is made through a representative, it must clearly identify the people on whose behalf it is made and provide evidence of authority to represent the project-affected people. The filing of a complaint will not suspend or otherwise affect the formulation, processing, or implementation of the project unless agreed to by the DMC or PPS concerned and ADB.

69. How to File a Complaint. Complaints must be in writing and be specifically addressed to the "Special Project Facilitator." The working language of the new ADB accountability mechanism is English, but complaints may be submitted in any of the official or national languages of ADB's DMCs if the complainant is unable to provide an English translation. In those cases where the complaints are submitted in languages other than English, additional time will be required for translation. Complaints will be accepted by mail, facsimile, electronic mail, or hand delivery to the SPF at ADB headquarters. Complaints will also be accepted by any ADB office such as a resident mission or representative office, which will forward them to the SPF. The identity of complainants will be kept confidential if requested, but anonymous complaints will not be accepted.

70. Contents of the Complaint. The complaint must specify the following:

1. that the complainant is, or is likely to be, directly affected materially and adversely by an ADB-assisted project, irrespective of any allegation of noncompliance by ADB of its operational policies and procedures;

2. that the complainant claims that the direct and material harm is, or will be, the result of an act or omission of ADB in the course of the formulation, processing, or implementation of the ADB-assisted project;

3. a description of the direct and material harm, i.e., the rights and interests that have been, or are likely to be, directly affected materially and adversely by the ADB-assisted project;

4. an identification of the complainant (and any representatives) and contact information;

5. if a complaint is made through a representative, identification of the project-affected people on whose behalf the complaint is made and evidence of authority to represent them;

6. a brief description of the ADB-assisted project, including the name and location if available;

7. the desired outcome or remedies that the project-affected people believe ADB should provide or help through the accountability mechanism;

8. a description of the complainant's good faith efforts made to address the problems first to the OD concerned;

9. an explanation of why any of the above information cannot be provided; and

10. any other relevant matters or facts with supporting documents.

4. Scope and Exclusions

71. The scope of the consultation phase is broader than either the current Inspection Function or the proposed compliance review phase. The consultation phase is outcome-driven, focusing not on the identification and allocation of blame, but on finding ways to address the problem of the project-affected people in ADB-assisted projects.

72. Complaints will be excluded if they are

1. about actions that are not related to ADB's action or omission in the course of the formulation, processing, or implementation of ADB-assisted projects;

2. about decisions made by ADB, the borrower or EA, or the PPS on procurement of goods and services, including consulting services;

3. about allegations of fraud or corruption in ADB-assisted projects and by ADB staff;

4. about an ADB-assisted project for which a project completion report (PCR)¹⁵ has been issued;

5. relating to matters already considered by the panel under the current Inspection Function or by CRP (unless there is new evidence presented that was not known at the time of the original complaint or unless the subsequent complaint can be readily consolidated with the earlier complaint);

6. about the adequacy or suitability of ADB's existing policies and procedures;

7. frivolous, malicious, trivial, or generated to gain competitive advantage;

8. within the jurisdiction of ADB's Appeals Committee or ADB's Administrative Tribunal or relate to ADB personnel matters; and/or

9. about ADB's non-operational housekeeping matters, such as finance and administration.

5. Procedural Steps and Time Frame

73. The following are the procedural steps and proposed time frames for the consultation process. The "days" referred to in these steps are calendar days.

74. The consultation process is expected to take about 3 months from the date when the complaint is filed with ADB. This period excludes translation time, any request for extension of time to provide information or file documents, and the time needed by the parties to facilitate resolution of their problems during the implementation of the course of action. It is in the parties' interests to move along in the process, to have their problems resolved as early as possible. The complainant is free to refer the matter for compliance review at certain stages, including as early as the end of step 3 (if and when the complaint is rejected by the SPF as ineligible) or at the end of step 4 (if and when the complainant exercises the option to file a request for compliance review instead of continuing with the consultation phase after receiving the SPF's findings). In addition, the complainant may also file a request for compliance review while carrying on with the implementation of the course of action (step 7 of the consultation process).

75. Step 1: Filing of the Complaint. The affected party, or its representative, files a complaint with the SPF. If a complaint is received by Management or another department at ADB headquarters, or by an ADB office such as a resident mission or a representative office, it will be forwarded to the SPF.

76. Step 2: Registration and Acknowledgement of the Complaint. Upon receipt of the complaint, the SPF will register it in the registry of complaints and will send an acknowledgement to the complainant, with a copy to Management. This step is mainly administrative, although if the SPF immediately determines that the complaint cannot be accepted because it is not within ADB's mandate or he/she cannot assist with the problem, he/she will notify the complainant, with a copy to Management.

77. Step 3: Determination of Eligibility of the Complaint. Upon receipt of the complaint, the SPF will screen the complaint and determine eligibility. The SPF must be satisfied with the following requirements: (i) the complaint satisfies the matters provided in para. 70; (ii) the complaint is genuine and does not fall within any of the exclusions specified in para. 72; and (iii) the SPF believes, at his/her sole discretion, that his/her involvement could be useful.

78. During the eligibility stage, the SPF may consult all stakeholders, including ADB staff, the complainant, the EA/DMC government or the PPS, and the Board member representing the country concerned. The determination of eligibility includes a desk-based review and/or a site visit. If, for any reason, the SPF rejects the complaint, he/she will inform the complainant of the reason why the complaint is ineligible and will also inform the complainant that a request for compliance review may be filed with OCRP if the complainant so wishes. The SPF will also inform the complainant that CRP will determine independently whether the request meets CRP's eligibility criteria.

79. Step 4: Review and Assessment of the Complaint. If the complaint is accepted, the SPF will undertake a review to determine how best to address the issues raised in it. The review will normally include site visits, interviews, and meetings with the complainant and the EA/DMC government or the PPS, as well as any other people the SPF believes would be useful. The SPF will obtain information from the OD, and if necessary, will request advice and support. The SPF will review relevant documents, and will field a fact-finding mission on his/her own initiative or participate, in consultation with the OD, in a special project administration mission of the OD.

80. After the review is completed, the SPF will make an assessment and determine what the real problems are; who the real parties to the problem are; what kind of remedies the complainant seeks to obtain; and how best a mechanism for the resolution of the problem can be worked out. The SPF will complete the review and assessment, and report his/her findings to the President, with a copy to the Vice-President concerned. The SPF will also refer the findings to the OD and the complainant.

81. The SPF will inform the complainant of the following two options: (i) the complainant can carry on with the consultation process and provide comments on the SPF's findings (as provided in step 5), or (ii) the complainant can abandon the consultation process if the complainant finds the process not purposeful, and file a request for compliance review with OCRP if the complainant so wishes. The SPF will highlight the different remedies available under the two phases, e.g., indicating that remedies available under the consultation phase are intended to address the problems on the ground and facilitate resolution of the problem, and that the remedies under the compliance review phase focus on bringing the project into compliance and/or mitigating any harm, if appropriate, following the Board's decision of the outcome of a compliance review resulting in the determination of noncompliance with ADB's operational policies and procedures. The SPF will give the complainant 7 days from receipt of the SPF's findings to respond to the SPF with the complainant's decision.

82. Step 5: Decision by the Complainant to Carry on with the Consultation Process or to File a Request for Compliance Review. Upon receipt of the complainant's decision to carry on with the consultation process and provide comments on the SPF's findings, the SPF will inform the OD and the complainant that they have 14 days from the date of the SPF's notification to provide their comments on the SPF's findings. Upon receipt of the complainant's decision to file a request for compliance review, the SPF will close the complaint. The SPF will submit a report to the President, with a copy to the OD concerned, the Board, and the chair of CRP, summarizing the complaint, the steps taken in addressing the problem, and the decision of the complainant.

83. Step 6: Comments on the SPF's Findings by the OD and the Complainant, and Recommendation by the SPF. Upon receipt of comments on the SPF's findings from both the OD and the complainant, the SPF will take into account their comments, make a recommendation, and seek the President's approval for either of the following: (i) determine that no further review will be purposeful and conclude the consultation process; or (ii) work out the proposed course of action in consultation with the complainant, the OD concerned, and the EA/DMC government or the PPS, and obtain their concurrence with its issuance. If the complainant finds the consultation process not purposeful, the complainant may file a request for compliance review with OCRP if the complainant so wishes.

84. Step 7: Implementation of the Course of Action in the Consultation Process. The SPF will implement the course of action in the consultation process in consultation with the complainant, the OD concerned, and the EA/DMC government or the PPS. Each course of action will be tailored to the individual complaint, depending on such factors as the type and seriousness of the problem, the principal parties to the problem, the remedies being sought by the complainant, the urgency required in fashioning appropriate mitigation measures, and the likelihood that the consultation process could have positive outcomes.

85. The object of the consultation process is to find a flexible, informal, and cost-effective way to address issues raised in the complaint. The SPF may choose one or more of several approaches including (i) continuing the consultative dialogue on the consultation process in seeking to find a mutually acceptable solution to the complaint, (ii) facilitating the consultation process by creating a forum through the SPF's good offices between the complainant and the EA/DMC government or the PPS, and (iii) facilitating the establishment of a mediation mechanism.

86. Implementing the consultation process requires the consent of every party involved, including ADB, the complainant, and the EA/DMC government or the PPS. If consent does not exist, then the options available for dialogue and consultation will be necessarily reduced. If the consultation process is working, all parties will continue with the process until an agreement is reached.

87. When the consultation process using the consultative dialogue and/or good offices modes is complete, the SPF will submit a report, including the settlement agreement (if any), subject to ADB's procedures, to the President with a recommendation agreed to by the complainant, the OD concerned, and the EA/DMC government or the PPS. The SPF will issue a report incorporating the President's decision on the recommendation and furnish the report to the complainant, the EA/DMC government or the PPS, and the Board for information. When the consultation process using the mediation mode is complete, the mediator will be required to furnish his/her report to the SPF. The SPF will submit the report to the President for information, with a copy to the Board.

88. In some circumstances, the consultation process may end with no resolution. The SPF may, for example, determine that no further consultation will be purposeful. In such circumstances the SPF will submit a report to the President summarizing the complaint, the steps taken to try to resolve the issues raised in the complaint, and a recommendation. The final report incorporating the President's decision on the recommendation will be furnished to the complainant, the EA/DMC government or the PPS, and the Board for information. Upon submission to the Board, the final report will be provided to the public. If the complainant finds the consultation process not purposeful, the complainant may file a request for compliance review with OCRP if the complainant so wishes. If the complainant finds the consultation process purposeful but has serious concerns on compliance issues, the complainant may also file a request for compliance review while carrying on with the implementation of the course of action.

89. Step 8: Termination of the Consultation Process. All parties to the consultation except the SPF can "walk away" from the process if there is no consensus on the course of action or if its implementation is not working in the SPF's reasonable opinion. Termination of mediation is subject to the procedural rules of mediation. These actions are a formal closure to the consultation process.

6. Transparency and Information Dissemination

90. The SPF's operations at all stages of the consultation phase will be as transparent as possible, subject to this paragraph, and consistent with relevant ADB policies and procedures and the need to ensure that any dialogue and consultation process is given the maximum opportunity for success. General descriptions about the process can be made public, but substantive details about the discussions will be kept confidential until a final solution is reached. The final agreement and resolution will also be kept confidential if the parties so agree. The SPF and other OSPF staff will be subject to ADB's confidentiality and disclosure of information policy, including those provisions aimed at ensuring that confidential business information is not disclosed.

91. Any material or information submitted to the SPF on a confidential basis from any party may not be released to any other parties without the consent of the party that submitted it. The SPF will exercise discretion, maintain a low profile in the borrowing country, and not give media interviews while making site visits or otherwise operating in the borrowing country. The SPF will not give any media interviews at any stage of the consultation process.

92. The SPF will also carry out outreach programs to the public, including meeting with the public, preparing materials describing the SPF, and providing advice to prospective complainants. The SPF will regularly update the registry of complaints, including changes in the status of any ongoing consultation. The SPF will have authority to issue press releases and public communications. Prior to releasing any news releases or other media communications, the SPF will inform the Office of External Relations (OER), not for purposes of review, but in order to provide ADB with an opportunity to prepare response to queries from the media or the public. OSPF will maintain its own web site. Specific milestone events during the consultation phase for which information disclosure is helpful will include updating of the registry of complaints, termination of the consultation process, and monitoring reports. The SPF will also inform the Board of these milestone events.

7. Remedial Actions

93. Any remedial actions that are adopted as a result of the consultation process will reflect an agreement among the relevant parties, subject to ADB's procedures. The range of potential remedies is quite broad. Remedial actions, if any, will be specified in a written agreement or series of agreements made by the relevant stakeholders. Remedial actions involving a major change in the project will require approval by Management or the Board according to ADB's procedures.

8. Monitoring

94. The SPF will be in charge of monitoring implementation of any agreement. Unless the President specifies a different timetable, the SPF will report annually to the President, with a copy to the Board, regarding the status of implementation. As part of the monitoring activity, the SPF will consult with the OD concerned, the complainant, and the EA/DMC government or the PPS. All stakeholders, including the public, may submit information regarding the status of implementation to the SPF. The SPF's monitoring reports will be sent to the complainant and posted on the web site after being submitted to the President and furnished to the Board for information.

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