→ Visit the IRM-CRMU website
The Independent Review Mechanism entrusted to the Compliance Review and Mediation Unit of the African Development Bank
On this page you will find:
– a brief history
– an overview of some key mandate and procedure points of the current version of the Independent Review Mechanism:
1- Conditions to access the IRM
– Who can complain?
– Content and form of the request
– Are there kinds of requests which are excluded from the IRM’s scope?
– Where to submit your request
2- The pivot: the Director of the CRMU
– The Director in short
– Registration and role of the Director in the determination of the procedure
– Criteria to decide if a problem-solving exercise is a possibility
3- The problem-solving procedure
– Purpose of problem-solving exercises
– Techniques used
– Articulation with a compliance review
4- The compliance review procedure
– Triggering of a compliance review
– Rules which violation can be invoked
-The IRM Experts
5- The advisory function
– Advisory Services by CRMU
– Spot check advisory reviews
– direct links to relevant AfDB website pages
« The IRM was established for the purpose of providing people adversely affected by a project financed by the Bank, the Fund, the Nigeria Trust Fund and other Special Funds administered by the Bank (collectively the ‘Bank Group’) with an independent mechanism through which they can request the Bank Group to comply with all its own policies and procedures. » (*)
The Independent Review Mechanism (IRM) was created in June 2004. It is entrusted to the Compliance Review and Mediation Unit (CRMU), who became operational in 2006. The CRMU then consisted in a full-time Director at its head and a Roster of Experts of 3 individuals, working only when a compliance review was needed. The actual starting of the IRM was slow, with delays in appointing key-staff and very progressive dissemination of information on the IRM and networking. (1)
From the onset, the IRM has:
– had a two-fold procedure (mediation and compliance review)
– dealt with both public and private AfdB-assisted projects with a differentiation in the policies that can be invoked
– given the Director of the CRMU a pivotal role since he or she decides whether to register an eligible request for mediation or compliance review.
Furthermore, since the beginning access to the IRM has been conditioned to the fact a breach of the Bank’s policies is alleged, whatever the procedure the request will trigger. (2)
A new version of the IRM was adopted in 2010. (3) The Rules and Procedures were not substantially modified, but the 2010 version makes it bit easier to access the IRM and changes a little the way compliance review can be reached.
In January 2015, the Board approved the revised Operating Rules and Procedure (4).
The 2015 Operating Rules and Procedures create an advisory function which can be triggered « Upon receipt by CRMU of a request for advice or technical opinion from the President and/or the Boards; or (b) Upon approval by the President and/or the Boards of a proposal submitted by the Director of CRMU for such advisory service. » As in the previous version of the IRM, access to the IRM is conditioned to the fact that complainants allege the Bank has violated an applicable policy, whether a problem-solving exercise or a compliance review is sought after. The IRM and the MICI (Interamerican Development Bank’s grievance mechanism) are the only international accountability mechanisms of multilateral development banks who impose that requesters allege noncompliance with the bank’s policies to be eligible to the problem-solving phase. The 2015 Operating Rules and Procedures have dropped the distinction that was made in the 2010 version between the policies that could be invoked regarding sovereign-guaranteed projects and private sector and/or non-sovereign guaranteed projects: as far as the firsts were concerned, all AfDB policies and procedures could be invoked (5) and as far as the seconds were concerned, Para. 2xi) specified that one could only invoke a violation of policies and procedures related to environmental and social matters: « agricultural, education, health, gender, good governance or environmental policies. » Such distinction on applicable policies no longer applies.
Finally, the 2015 version includes in the kinds of violation which can be invoked violations of human rights, provided that they « involv[e] social and economic rights [and are related to] any action or omission on the part of the Bank Group. » (Para. 2)
The IRM is based on the work of the CRMU officers, headed by a Director, and experts.
• Who can complain?
« CRMU has authority to receive Requests that complain of a violation of the Bank Group’s policies and procedures from the following people or entities:
(a) Any group of two or more people in the country or countries where the Bank Group-financed project is located who believe that as a result of the Bank Group’s violation, their rights or interests have been, or are likely to be, adversely affected in a direct and material way. They may be an organization, association, society or other grouping of individuals;
(b) A duly appointed local representative acting on explicit instructions as the agent of adversely affected people,
(c) In exceptional cases (…), a foreign representative acting as agent of adversely affected people [when there is « clear evidence that there is inadequate or inappropriate representation in the country or countries where the project is located or has a direct and material impact » (§16)], or
(d) The Boards of Directors of the Bank Group. » (§6, emphasis added)
Again, it is important to note that access is conditioned to the fact that complainants allege the Bank has violated an applicable policy, whether a problem-solving exercise or a compliance review is sought after.
• Content and form of the request
The AfDB does not provide sample letters or complaint forms on its website, but people or entities « seeking advice on how to prepare and submit a Request may contact the CRMU, which will provide information or may meet and discuss the requirements with potential Requesters. » (§5) This can be made by sending an email to firstname.lastname@example.org
The request must be submitted in writing, dated and signed by the requesters and contain their names and contact addresses. The working languages of the IRM are English and French but « requests may be submitted directly by affected people themselves in their local language if they are unable to obtain a translation. » (§12) The CRMU tries to answer requests in the language of submission when possible, and at least respond in either of the official languages of the Bank Group with which the requesters are most comfortable. (§13)
The requesters and any other interested persons may request that their identities be kept confidential, and if so, the reasons for such confidentiality. (§10)
Para. 7 states that the request « should contain, to the extent possible« , the following information:
» (a) A reference to the project, stating all the relevant facts including the harm suffered by or threatened to the affected parties;
(b) How the parties have been or are likely to be materially and adversely affected by the Bank Group’s act or omission and what rights or interests of the parties were directly affected;
(c) When requesting a compliance review, an explanation of how Bank Group policies, procedures or contractual documents were violated;
[The « When requesting a compliance review » part of the sentence was added to the wording of the 2010 version. This suggests that when seeking a problem-solving exercise, though there must be an alleged violation of the Bank’s policies the requesters do not have to give details about it. Policies and procedures of the AfDB are available here]
(d) An indication if there has been any previous communication between the affected parties and the Bank Group concerning the issue (s) raised in the Request ;
(e) In Requests relating to matters previously submitted to the CRMU, a statement specifying what new evidence or changed circumstances justify revisiting the issue »
If some of the above information cannot be provided, an explanation should be included. (§8)
Requesters must also attach to the request:
» (a) Relevant correspondence with Bank Group staff; if any;
(b) A description of the location of the affected parties or area affected by the project; and
(c) Any other evidence supporting the Request. »(§17)
When parties are represented, the representatives much attach to the request written signed proof that they have authority to act on behalf of the affected people and if the representatives are not themselves affected, they must provide evidence of representation authority and the names and contact address of the affected parties. Proof of representational authority consists in the original signed copy of the affected parties explicit instructions and authorization and must be attached. (§§14-15)
Finally, it is worth noting that although it’s the Director who ultimately decides how to channel the complaint (having consulted the requesters), requesters who want a compliance review should clearly specify it in their request, so as to maximize their chances to obtain it.
• Are there kinds of requests which are excluded from the IRM’s scope?
Complaints filed « more than 24 months after the physical completion of the project concerned or more than 24 months after the final disbursement under the loan or grant agreement or the date of cancellation of the disbursement amount, whichever comes first » are not eligible. (§3)
Para. 2 specifies that are excluded requests relating to:
(a) Any procurement by the Bank Group or its borrowers from suppliers of goods and services financed by or expected to be financed by the Bank Group under a loan or grant agreement, or from losing tenders for the supply of such goods and services which shall continue to be addressed under other existing procedures. These are handled by another unit within the Bank Group;
(b) Fraud or corruption since they are handled by another unit within the Bank Group [on this matter, please see the Integrity and Anticorruption Department];
(c) Matters before the Administrative Tribunal of the Bank;
(d) Matters before other judicial review or similar bodies;
(e) Frivolous, malicious, or anonymous complaints;
(f) Complaints motivated by an intention to gain competitive advantage;
(g) Matters over which the CRMU, a Panel, the President or the Boards has/have already made a recommendation or reached a decision after having received and reviewed a Request, unless justified by clear and compelling new evidence or circumstances not known at the time of the prior request;
(h) Actions that are the sole responsibility of other parties, including the borrower or potential borrower, and which do not involve any action or omission on the part of the Bank Group; [this means that if you are affected or likely to be affected by the behaviour of the borrower or the potential borrower, your request cannot solely point at the borrower; your claim must state that the harm caused by the borrower was permitted by the fact AfDB did not do what it should have done to make sure the borrower meets the Bank’s conditions and/or did not supervise diligently enough the project to make sure it was implemented in compliance with the Bank’s policies and that the borrower complies with its commitments under the agreement signed with the Bank]
(i) The adequacy or unsuitability of Bank Group policies or procedures; and
(j) Alleged Human Rights violations, other than those involving social and economic rights alleging any action or omission on the part of the Bank Group. »
This last point is new and entails that your request can allege violations of human rights, provided that these are violations of social and economic rights (meaning you cannot invoke any civil or political right) and are related to an action or omission of the Bank Group.
• Where to submit your request
Requests can be sent « by any suitable means » (§19) either:
– to the CRMU at the Bank Group’s principal office:
Compliance Review and Mediation Unit (CRMU)
African Development Bank
2nd Floor, CCIA Building, Abidjan Plateau
Avenue Jean-Paul II
01 P.O. Box 1387 – Abidjan 01, Côte d’Ivoire
Tel: +225 20 26 29 56
Requests can also be forwarded by email to email@example.com with Cc to B.Kargougou@afdb.org, B.Fall@afdb.org and S.Toure@afdb.org.
– or to any of the Bank Group field offices who must transmit the complaint to the CRMU promptly and without reviewing its content. You’ll find their contact details on this page.
Please be aware that « the filing, assessment, registration or processing of a Request or the carrying out of a compliance review or problem-solving exercise shall not have the effect of suspending processing of, or disbursements in respect of, the relevant Bank Group-financed project. If at any time during the processing of a Request, the Director or the Review Panel is of the opinion that serious, irreparable harm shall be caused by the continued processing or implementation of the Bank Group-financed project, the Director and/or the Review Panel may make an interim recommendation to suspend further work or disbursement. Such recommendation shall be considered in light of any contractual obligation or other relevant policies of the Bank Group and the decision concerning such recommendation shall be made:
(a) By the relevant Bank Group officer or body vested with the power to make such a decision; and
(b) Only if the Bank Group has the right to suspend or cancel in accordance with the terms of any applicable loan and/or investment and/or other agreement. » (§20)
• The Director in short
The Director is selected by a panel composed of a Board member, a representative of Management and an independent external advisor. He is appointed by the President with the concurrence of the Boards, for a 5 year term that may be renewed only once for a successive 5 year period. The Director shall not have worked for the Bank Group in any capacity whatsoever for the period of at least 5 years prior to his or her appointment and shall not be entitled to work for the Bank Group in any capacity whatsoever following the expiry of his or her appointment. (§78) The Director have overall responsibility for the day-to-day operations and external relations of the IRM (§79.)
• Registration and role of the Director in the determination of the procedure
The Director plays a pivotal role since he/she ultimately determines the way the case will be handled (problem-solving, compliance review or both).
The Director checks within 14 days after receiving it whether the request is prima facie (meaning looks at first glance) eligible (i.e. it contains a good faith allegation of harm arising from a Bank Group financed operation, it appears to contain the required information and isn’t outside the scope of the IRM). If it is, he/she registers the request (or asks for additional information if need be). (§21) If additional information is required, or if it is not clear whether a request is outside the IRM’s mandate, the Director may request an IRM Expert to review the request and advice on whether it meets the requirements for registration. (§32) How the preference of the requesters for a problem-solving exercise or/and a compliance review is dealt with in the registration process is made clearer by the 2015 version of the Operating Rules and Procedures. To the extent that the criteria for registration are met, the Director respect the choice of the requesters. If the requesters have not expressed a preference, « the Director of CRMU will determine the best course of action in consultation with the Requesters. » (§22)
Once this determination is made, the Director enters the request in the register. He or she « promptly notif[ies] the Requesters, the Boards and the President of the registration and transmit[s] to the Boards and/or the President, as the case may be, a copy of the Request with any accompanying documentation requesting that Management provide a response to the allegations contained in the Request. » (§23) The notice of registration includes a « Request [to] the Bank’s Management to provide CRMU, within 21 business days after receipt of the notice and Request, with written evidence that it has complied, or intends to comply with the Bank Group’s relevant policies and procedures. » (§26 d)
After receiving the Management response to the Request, the Director shall within 5 business days, while respecting the preference of the Requesters, make a determination on whether the Request should be handled through: (i) a problem-solving exercise, (ii) compliance review or, (iii) both problem solving and compliance review. In the latter case, the sequencing will be problem solving followed by compliance review.
• Criteria to decide if a problem-solving exercise is a possibility
In considering whether a problem-solving exercise should be undertaken, the Director takes into account: whether the requesters and any interested persons are amenable to such problem-solving exercise;whether it is appropriate and may assist in addressing undue, incidental effects; whether it is likely to have a positive result; whether the Bank Group has sufficient leverage to influence change; whether it may interfere with the conduct of a compliance review; whether it may duplicate, or interfere with, or may be impeded by, any other procedure actively considered by a court, arbitration tribunal or review body (such as an equivalent mechanism at another co-financier) in respect of the same matter or a matter closely related to the Request… This list of criteria is non-exhaustive.
• Purpose of problem-solving exercises
« The objective of a problem-solving exercise is to restore an effective dialogue between the Requesters and any interested persons with a view to resolving the issue or issues underlying a Request, without seeking to attribute blame or fault to any such party. A problem-solving exercise may be conducted (…) regardless of whether a compliance review is or will be conducted. » (§41)
• Techniques used
They include independent fact-finding, mediation, conciliation and dialogue facilitation including use of best customary practices. (§42)
– If the problem-solving exercise is successful, the Director issues a Problem-Solving Report that includes the solution agreed upon by the requesters, Management and any interested person. The Report is sent to all parties in the problem-solving exercise and to the Boards and the President for consideration. (§45)
– If the problem-solving exercise is unsuccessful, either 3 month after the start of the exercise or by common consent of the parties, the Director issues a Problem-Solving Report that includes « a description of the efforts made, the reasons for their failure and (…) recommendations on steps the Bank Group could take to deal with the unresolved issue. » The Problem-Solving Report is sent to the parties in the problem-solving exercise, the Boards and the President for consideration. (§47) Interestingly, though the problem-solving exercise was unsuccessful, the President —when the concerned project has not yet been submitted for Boards’ approval— or the Boards —when the project has already been approved— must take the recommendations of the Director into account and decide « whether to accept or reject the Director’s recommendations for remedial action. If the President or Boards decide to reject the recommendation, they will inform all participants in writing of their reasons for doing so. » (§47)
The CRMU monitors the implementation of the solution agreed upon in a problem-solving exercise. » This will include meeting with the affected communities to ascertain that the problem solving exercise worked as intended and the Bank Group has met its commitments. Where the project forming the subject matter of the Request has not yet been presented to the Boards for their approval, the Director shall submit the monitoring report to the President and, as and when the project is submitted for Board approval, to the Boards. Any report to the President shall be immediately copied to the Boards. » (§46)
• Articulation with a compliance review
After a problem-solving exercise, whether successful or not, the Director can recommend a compliance review in the Problem-Solving Report. This recommendation is submitted to the President or the Boards, as the case may be. (§49)
• Triggering of a compliance review
The compliance review process is initiated with a joint determination of the eligibility of the request by the Director of CRMU and the IRM Experts. In case of a deadlock in determining the eligibility of the request, the Director of CRMU shall make the final decision. (§50) Based on the content of the request and, in case there has been an unsuccessful problem-solving exercise, on what the Director has learned during the exercise, the Director and the IRM Experts determine whether there is prima facie (meaning, through a cursory assessment) evidence that the requesters have been harmed or threatened with harm by a Bank Group-financed project and that the harm or threat was caused by the failure of the Bank Group’s staff and Management to comply with any of the Bank Group’s relevant policies and procedures. Once this determination is made, they submit within 30 business days a report recommending a compliance review of the project at issue to the (a) President, with a copy to the Boards, if the Request relates to a Bank Group-financed operation that has not been approved by the Boards, or (b) Boards if the Request relates to a Bank Group-financed operation that has been approved by the Boards. (§51) The compliance review recommendation includes draft Terms of Reference which set out the scope and time frame for the compliance review and provide an estimate of the budget and a description of additional resources required to complete the review. (§52)
The Boards or the President may approve the recommendation(s) on a ‘non-objection’ basis; not authorize the compliance review or; remit the request to the Director and the IRM Experts to reassess the recommendation regarding the draft Terms of Reference for the compliance review, with a new recommendation, if any, being submitted to the President or the Boards. (§§ 53 and 55) In any case, the decision of the President or the Boards is promptly communicated to the requesters and any other interested person. (§§ 54-55)
• Rules which violation can be invoked
As already noted above, for cases submitted before the adoption of the 2015 Operating Rules and Procedures, as regards the policies and procedures which violation can be invoked the 2010 Operating Rules and Procedures make a distinction between sovereign-guaranteed projects and private sector and/or non-sovereign guaranteed projects. As far as the firsts are concerned, all AfDB policies and procedures can be invoked. As far as the seconds are concerned, Para. 2xi) specifies that one can only invoke a violation of policies and procedures related to environmental and social matters: « agricultural, education, health, gender, good governance or environmental policies ».
The 2015 Operation Rules and Procedures only state that « CRMU shall work with Bank Group Management to establish, maintain and update a list of operational policies and procedures of the Bank Group relevant to the work of the IRM. » (Introduction, d) It follows that as far as we know, all policies and procedures of the Bank Group can be invoked.
AfDB policies and procedures are available here.
• The IRM Experts
Whether the compliance review is triggered from the start or following a problem-solving procedure, the IRM Experts are responsible to set up the Review Panel in charge of performing the compliance review with administrative and technical support from CRMU. (§52)
The Roster of IRM Experts includes 3 individuals appointed by the Boards on the recommendation of the President (§81). They are « nationals of member countries of the Bank or State participants in the Fund and shall be selected on the basis of their knowledge of and exposure to developmental issues in Africa, their experience, expertise, integrity and ability to act independently. » (§83) Executive Directors, Alternate Executive Directors, Senior Advisers and Advisers to Executive Directors, any Officer or Staff member of the Bank or persons holding consultant appointments shall not serve on the Roster of Experts at the end of their service with the Bank. If an Expert is called upon to work for the IRM during his or her term, the Expert shall not be entitled to work for the Bank or the Fund (either as staff member, Elected Officer, Senior Adviser or Adviser to an Executive Director or Consultant) after the expiry of his or her term. (§85) Their term is 5-year non-renewable (§84) and they are called when needed. On the President’s recommendation, after consultation with the IRM Experts, the Board of Directors appoints one of the members of the Roster of Experts as the Chairperson of the Roster each time a new member of the Roster is appointed. (§82)
• The process
When performing a compliance review, the Panel can ask for additional information and/or meet with the complainants and any other interested party, undertake onsite visits [note that in this regard explicit agreement of the concerned country is not required], retain additional expertise… (§56)
The IRM Experts should aim to reach a consensus of opinion on all decisions. If a consensus cannot be reached, all the opinions shall be reported to the Boards. This should enable the Boards to take into account all the views expressed on the matter by the IRM Experts. (§58) Note that under the 2010 Operating Rules and Procedures (ORP), all Panel members had one vote and decisions were adopted by a majority. (ORP 2010, § 51)
Within 30 days after the completion of investigations the Panel must issue a draft Compliance Review Report which contains the Panel’s findings and recommendations and must circulate it to the Bank Management for review and comments on factual matters only. The Bank Management submits its comments to CRMU/IRM within 21 business days from the date of receipt of the draft report from CRMU/IRM.
Upon receipt of comments from Bank Management, the Panel finalizes its Compliance Review Report, which shall:
(i) Include a summary discussion of the relevant facts, the respective positions of interested party in relation to the subject matter of the Request, areas of disagreement, if any, between the IRM Experts and Management and the steps taken to conduct the compliance review;
(ii) Set out the findings of the Panel which, unless otherwise provided in the Terms of Reference, shall be limited to determining whether or not any action by the Bank Group, or failure to act, in respect of a Bank Group-financed project has involved one or more material violations of policies in accordance with
(iii) If it concludes that any Bank Group action, or failure to act, in respect of a Bank Group-financed project has involved one or more material violations of policies in accordance with paragraph 1, recommend:
a. Any remedial changes to systems or procedures within the Bank Group to avoid a recurrence of such or similar violations;
b. Any remedial changes in the scope or implementation of the Bank Group-financed project, subject to consideration of any restrictions or arrangements already committed to by the respective Bank Group institution or any other relevant party in existing project-related agreements; and/or
c. Any steps to be taken to monitor the implementation of the changes referred to in (i) and (ii) above, and the person in charge of such monitoring (who shall be the Director of CRMU and one of the IRM Experts so appointed unless the Boards or the President, as the case may be, decide otherwise); and
(iv) Attach a copy of the original Request, the Management response and a list of supporting documents relied upon in the compliance review. » (§59)
The Report is submitted to the President with copy to the Boards for information or directly to the Boards (depending on whether the concerned project had been approved at the time of the submission of the compliance review report or not yet) (§62) The same day the report is made available to the requesters. (§63)
After the President and the Boards receive the Compliance Review Report, the Bank’s Management must: § (64)
– Prepare a Response to the findings and an Action Plan based on the recommendations of the Compliance Review Report. This Response and Action Plan shall be submitted to the President, the Boards of Directors, CRMU and the Requesters within 90 business days;
– Consult with CRMU to agree on a date for a joint presentation of the Compliance Review Report and the Management Response and Action Plan to the Boards of Directors at a meeting within a time period not normally exceeding 30 business days from the date on which the Action Plan is distributed to the Boards;
The Boards or the President decide(s) whether or not to accept the recommendations in the Compliance Review Report. (§65) [In the 2010 ORP: « whether or not to accept the findings and recommendations » (emphasis added)] This decision is promptly communicated to complainants and interested parties, and made public on the AfDB website. (§ 59)
Management consults with CRMU no later than 3 months from the date of the consideration by the Board of Directors of the Management Action Plan, and agree on the preparation and submission to the Board of any reports on the progress of implementation of any recommendations of the compliance review report that have been approved by the Board, and of the approved Management Action Plan. Management also submits to CRMU copies of reports on the progress of implementation of the Management Action Plan submitted to the Boards. (§64)
The person in charge of monitoring the implementation of remedial measure (that is to say either the Director of the CRMU or a designated IRM Expert) shall submit monitoring reports on such implementation to the Boards or the President, as the case may be, for consideration, as often as required and in any event not less than once a year. Any report to the President shall be immediately copied to the Board. The final monitoring report will conclude the compliance review process. (§67)
One of the novelties of the 2015 ORP is the creation of an advisory function, on the model of that of the CAO (the grievance mechanism of the International Finance Corporation (IFC) & Multilateral Investment Guarantee Agency (MIGA), except it goes further with the « Spot Check Advisory Reviews », which might end up being very problematic. The advisory function is indeed twofold, with an « advisory services » aspect and a high-risk project-specific aspect (the « spot-check advisory reviews »).
• Advisory Services by CRMU
The President and/or the Boards can request the CRMU to give some advice or a technical opinion which is not project-specific, or else the Director of CRMU can propose to the President and/or the Boards to submit an advice or a technical opinion which is not project-specific. (§§ 69-70) The objectives of this advisory function may be:
« – bringing about systemic improvements in environmental and social policies, procedures, strategies and/or guidelines of the Bank Group by addressing deficiencies in systems, policies, procedures, strategies or guidelines;
– improving on the social and environmental impact of projects funded by the Bank- Group by advising the Bank Management on emerging, strategic, or systemic issues or processes based on lessons learnt and trends identified by CRMU during the handling of the requests through problem-solving exercises, compliance reviews or outreach activities;
– helping the Bank Group to understand how the environmental and/or social obligations contained in Bank Group policies and procedures may be met more effectively by Regional Member Countries to safeguard development impacts; and
– providing information and recommendations on emerging trends arising from the experience of the CRMU. » (§71)
« The sole purpose of the advisory service is for institutional learning. » (§72 c)
• Spot Check Advisory Reviews
Spot check advisory reviews are project-specific. At the beginning of each calendar year, CRMU has to « select not more than 2 high risk (environmental and social) on-going projects on which the IRM Expert will conduct spot-checks to assess the Bank Group’s compliance with its policies and procedures. » (…) Once the projects have been selected, CRMU will recommend the names of the projects to the Boards for approval. Such recommendation shall include the Terms of Reference, a time frame of not more than six months for each review, and the estimated budget for the advisory reviews. (…) Each year, one IRM Expert will be given the responsibility to undertake spot check activities. The IRM Expert assigned to such spot-check activities shall not be involved in undertaking any compliance review activity during that year. » (§75) « The main objective of the spot check exercise is to gather information, draw lessons from the experience of the IRM for the purpose of advising Management on the issues associated with high risk projects. » (§73)
The 2015 ORP specify that « If in the process of a spot check exercise, a bona fide [good faith] request is made on the same project, CRMU will separate the spot checking exercise from the investigation of the complaint » (§74) and the « other two IRM Experts will be responsible for undertaking all compliance review activities for the year. » (§75)
Although the spot-check advisory reviews can seem to make sense, they raise important issues of internal (to the Bank Group) consistency, legitimacy and credibility. First, checking compliance with policies and procedures during project design, appraisal and/or implementation is the responsibility of Management, assisted by the General Counsel & Legal Services Department. While this may be an opportunity to build more trust between the IRM, Management and the Legal Department, there are risks of inconsistencies between the assessment of the IRM and that of the Legal Department, whose job is to protect the Bank, including Management staff, and it is likely to make it more difficult to know who is responsible for what and when as regards the assessment of project’s compliance with the applicable policies. Second, if one of the spot-checked projects triggers a complaint before the IRM, the IRM will be hardly credible, whatever the quality of the spot-check advisory review, the fact that the advice has been followed or not, or else the quality of the compliance review. The IRM might well end up with Management alleging they did what the IRM Expert told them to do… So much for credibility. Finally, requesters often have a hard time understanding the role of international accountability mechanisms and, based on their experience with their own country, they are often not very trusting in institutions. Understandably, if they come to learn that they submit their complaint to a body which checked the compliance of the project they are complaining about, they have no reason to make any distinction between the different roles and they won’t find the IRM either credible or legitimate to hear their grievance.
Notes (*) IRM Operating Rules and Procedures, 2015, p. 1, <https://www.afdb.org/fileadmin/uploads/afdb/Documents/Compliance-Review/IRM_Operating_Rules_and_Procedures-january_2015-_En.pdf> (1) IRM Annual Report 2006, <http://www.afdb.org/en/documents/document/2006-annual-report-of-the-independent-review-mechanism-irm-8776/>. (2) 2004 Operating Rules and Procedures of the Independent Review Mechanism, Annex of the IRM Annual Report 2006, p. 14. Also, Daniel D. Bradlow, "Private Complainants and International Organizations: A Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions", Georgetown Journal of International Law, 2005, vol. 36, especially pp. 444-447; Richard E. Bissell & Suresh Nanwani, "Multilateral Development Bank Accountability Mechanisms: Developments and Challenges", Manchester Journal of International Economic Law, 2009, vol. 6 (1), pp. 2-55. (3) IRM Operating Rules and Procedures, 2010, <http://www.afdb.org/fileadmin/uploads/afdb/Documents/Compliance-Review/IRM%20Operating%20Rules%20and%20Procedures%20-%2016%20June%202010.pdf> (4) Resolution B/BD/2015/03 – F/BD/2015/02 Amending Resolution B/BD/2010/10 – F/BD/2010/04 concerning the Independent Review Mechanism, adopted at the 1001st of the Board of Directors of the Bank and the 924th Meeting of the Board of Directors of the Fund, on 28 January 2015, <http://www.afdb.org/fileadmin/uploads/afdb/Documents/Compliance-Review/Boards_Resolution_on_Establishment_of_IRM_2015.pdf>. (5) Ibid. (meaning same reference as in the previous note), p. 1.