A complaint by any other name…good practice among independent accountability mechanisms

15 October 2019 | Minutes

Panel co-sponsored by Centre for Research on Multinational Corporations, Accountability Counsel and FUNDEPES.


  • Koen Davidse (moderator), Executive Director, World Bank
  • Mac Darrow, Representative of DC Office, United Nations Office of the High Commissioner for Human Rights
  • Osvaldo L. Gratacós, Compliance Advisor Ombudsman Vice President, IFC/Multilateral Investment Guarantee Agency
  • Kris Genovese, Senior Researcher, Centre for Research on Multinational Corporations (SOMO)
  • Charles di Leva, Chief Environmental and Social Standards Officer, World Bank.

Minutes are not verbatim.

Koen Davidse (moderator): It is important to keep discussing these issues, a better title would be the highest common denominator. The World Bank has to do good, but also at least ‘do no harm’. This is the case across its all institutions – it was why the Inspection Panel (IPN) was established, and why the office of the Compliance Advisor Ombudsman (CAO) was established. Hear from 4 panellists on what works well with these complaint mechanisms, how can do better. The input from you all is useful for us with two current reviews.

Kris Genovese: I am assuming a high level of familiarity with independent accountability mechanisms (IAMs) in the room. Three years ago, we published report called Glass Half Full, to evaluate the effectiveness of IAMs and their institutions according to UN principle 31 on non-judicial grievance mechanisms. Wanted to be more specific about what we want to see from IAMs. AIIB (Asian Infrastructure Investment Bank) wanted best recommendations from peer institutions as they built their own IAM. So in a new report (not yet published) we went through the rules and procedures of all IAMs of other banks to find rules and procedures that we liked. It was very interesting, and there is a story behind all of the paragraphs. A story of a community being able to participate or not.

We used recommendations for the AIIB consultation process and we refined those for EIB’s revision process. The Green Climate Fund (GCF) and the EBRD (European Bank for Reconstruction and Development) had similar processes. Now we have a draft form of the 67 favourite accountability provisions from all the IAMs and why we like them. The report is organized in sections like mandate, structure, etc. Only part of project, for each recommendation, going to assess how many IAMs have equivalent provisions and have an analysis chapter that will provide some recommendations for improving existing policies. We will publish early next year in complete form. We hope it will be a living document. And we will hopefully get new provisions as we go along and will include them.

Some limitations with our approach: we were only looking at words as they are on paper, not the practice of the mechanism. It shows good policy, not a best policy. So even if an IAM has all of the recommendations, it doesn’t make it a model policy. It always can and should be strengthened. We are only looking at mechanisms themselves and not other important actors like management, client, and board.

Mechanisms are reviewed periodically. We as CSOs want to have a consistent position on what we expect from these mechanisms and the institutions. Hope to spark conversation with institutions and member govts on what they would like to see. Many recommendations are interconnected. Look at prevention of harm, remedy, providing lessons learned to institution to prevent similar harms in the future. We like the use of word redress as a remedy.

Personal favourites from the 67 areas we looked at, hard to pull out numbers 1 or 2 as a lot are interrelated. Mandate: should look at prevention of harm, remedy of harm, lessons learnt to avoid similar harms in future. GCF and CAO – we like use of the word ‘redress’. Function: compliance review, dispute resolution, and advisory. Not including monitoring separately as it is inherent part of all. Structure: best we have seen – one office with head of office overseeing structure is similar to the CAO. But that can’t be isolated, as position of the head of that office important, independence of that office important. Number 7 is on selection committee. Numbers 10, 11 are on pre-employment ban and post-employment ban (can you come from being employed at the bank or go back to bank if employed at the IAM).

Number 15 – requirement for clients to disclose existence of mechanism to project affected communities. This should be a no-brainer and we think the client is best-placed to provide information on the mechanism.

Risks to human rights defenders – number 39, 40. Looks at what mechanism can do to assess risks because they are filing complaint to take measures to mitigate that risk. And what the mechanism should do to respond if retaliation should occur, AIIB (?) – complainant can raise to board if retaliation occurs.

There is a new mechanism policy at EBRD where the mechanism can include information about client’s engagement in complaint process in due diligence information for the board to determine if they will get further funding. This provides an internal feedback loop. That information will be included in requests for additional financing. The client should not be automatically discredited for this, if they are working in good faith, it should speak well of the client. Compliance review section. Number 44 looks at whether the mechanism itself has authority to decide whether to undertake compliance review – board level.

Number 53/54 – when a complaints mechanism has undertaken a compliance review, management prepares a management action plan if findings of non-compliance. Management consults not only with complainant but with mechanism, itself in action plan, both goes to board. Number 57, some mechanisms can alert the board if there’s problems with implementation of action plan to address some of underlying problems found.

Number 58 in dispute resolution, there should be a clear distinction among mechanisms with dispute resolution. Some approach it by bringing together client and complainant in dialogue, and we endorse that approach. Others look at dialogue between complainant and bank and we don’t think we should take that approach with IAMs. We think the Overseas Private Investment Corporation’s provision and IADB have taken good approaches. Need to have client and complainant there.

Number 65 – advisory function. Making sure that advisory function doesn’t give project specific advice. Should just be looking at lessons learnt. Shouldn’t blur lines between mechanism and environmental and social specialists.

Koen Davidse: Thank you for sharing, that was a succinct summary.

Osvaldo L. Gratacós: General role in terms of secretariat of IAMs. I took over about a month ago. Growing field, important issue to highlight. Now we have over 20 across world, growth going to continue, multilaterals/bilaterals, but also private sector starting to ask questions about role of accountability. 15/20 years ago, even using the word accountability was difficult. Acknowledge that conversation expanding. Good that expanding, this can really contribute to that moving forward. Accountability is not how to deal with problem once we find problem, but it is a way of thinking. We are all accountable to someone in this room, it is the same for business. The role of an IAM more crucial to prevention, but also sending signal to institutions that accountability is who we are. Investing in difficult environment, with communities that don’t have a choice, opportunity to address concerns, grievances. Evolution of function, but key principles the same: 1) independence, meaning being able to do the work, find complaint, bring up in institutions, but also operational independence. Trust issue too, communities need to trust fact they can come to us. 2) transparency – people outside see institution as convoluted, bureaucratic, communities need to be able to understand process. 3) Has to be citizen driven, so community can actually raise their voice to us, 4) Has to be effective. If complaints raised, there should be some sort of action.

Number of good practice papers among teams, still working on a couple of them. Posted ‘disclosure and outreach’, ‘access to and use of project information’, and a number of them we are working on for publishing next year. Findings, evidence and interpretation.

We get calls from institutions about how to manage complaints, that info isn’t available unless you go through one by one. Having all in one place is a good tool for people in the field but also institutions. Find that way of leveraging this as a profession.

A couple of things that we found important: 1) Disclosure of information to communities- project level, info about project, risks, how to manage. Consultation when action plans are created in response to findings. CAO is not mandated in terms of policy but this is very important. Independent checks are key, if a number of actions accumulated, see if actions having intended result. It is an evolving field. Not the last time we will be having conversation on best practice. Expansion of mechanism field, going to have this conversation for future to come. Engaging with management on ongoing basis to move forward and expand its role to the private sector.

Mac Darrow: I was asked to speak about particular project to governments meeting at Human Rights Council – how to achieve effective remedy in private sector. Multi-year project. Non-judicial grievance mechanisms. Framed by UN Guiding Principles on Business and Human Rights, authoritative framework, third pillar on remedy, topic today. It felt that remedy was the poor cousin, that was the impetus for this project. Final phase of project broad, corporations, private sector entities writ-large. Something on remedies, specifically IAMs. Representatives of IAMs really helped us shape these components, wanted to highlight a few points. Report writing underway as we speak, draft available next month, can contribute. Culmination at country level, particularly from mechanisms and CSOs that help communities to use mechanisms. Growth in use of mechanisms. However my observation is that this rarely leads to effective remedy in themselves and to empower users. 2) Effectiveness does depend on proactive outreach. If one is not aware of an impacting project, it is impossible to activate recourse. 3) Important of independence for credibility. E.g. how members recruited, independent advisory roles. 4) roles that CSOs play to make remedy happen, technical support in actually filing a complaint. May also be facing threats of reprisals. Monitoring process. 5) Opportunities from state and mech interface, interesting observation about how that interface may work in practice. Possibility to think of situations where potential serious human rights violations need to be referred to national authorities. Are procedures in place for those difficult decisions, and how to ensure protection of individuals concerned. Potential role of national courts to decide validity of waivers, controversies about circumstances of waivers. Instances where courts can play a useful role. Thumbnail sketch of extremely complicated. Lessons, not just outcome, but how to ensure outcomes improve policies. Role of new tech, new tech being used to intimidate complainants, but also can be vital tool.

Challenges: Stakeholder engagement – how to make happen in practice. Observations coming in, not just a question of it precluding remedy but undermining trust/legitimacy of mechanism. Basic transparency, importance of that as a baseline requirement for trust in mechanism. Contextual analysis: where several development finance institutions have been working for a while, how to address power imbalances. For example, the World Bank environmental and social standards (ESS) number 10 on stakeholder engagement. Addressing cultural and gender issues as part of that. One case in the region where efforts of mediators to be helpful were threatened by the role of the religious community, solution created where moral observation group created. 3) challenges to accessibility/bureaucratic requirements, can’t underscore enough importance of accessibility. Simplicity is really important, especially with representation as an issue. 4) Overlapping jurisdiction. Clients sometimes refuse dispute resolution even when is before courts, even when functions of IAMs are very different than courts. State based mechanisms, fears of reprisals, risks.

How to address perceived tensions and empower choice. Tensions between dispute resolution function and compliance review. Not an easy question. This an important issue, and further guidance is needed. Structured follow up, independent, confidentiality. Need to take a lot further, how you approach through effective prevention lens, what are tools to respond. Response is the tougher issue, need more creativity and engagement.

Charles di Leva: Remarks about how management an enhance our function and support for accountability. New World Bank Environmental and Social Framework (ESF) does explicitly recognise key immutable principles in all functions, part of what we should also have is the principles of subsidiarity (when there are issues of conflict, if they can be addressed at local level, it is the best place to address them). Under the ESF, unlike the old safeguards, all projects have to have grievance mechanisms. Standards and worker-related issues. Need more because GBV issues Uganda and the Democratic Republic of the Congo make us realise need to address those at local level. Three tiered system of accountability at project level, at management level and under Board auspices with Inspection Panel. Interested in ways to constantly improve and enhance accountability.

One issue from management, 67 principles, no one size fits all, different institutions have different mandates, different nature of board. When I started at bank, more equivalent sense of capacity, now seeing some countries shoot ahead, their ability to have own dispute resolution, better. Led to discussions about how to staff projects – do you decentralise more – how to deal with accountability in that settings, how do you train staff. Under new system, accreditation requirements for E&S specialists in the field. We are working with Mac and other organisations. All multilateral development banks are making strides forward, workshops, gone through ESS, guidance notes, how we are providing whistle-blower protections, confidentiality. How you deal with protection, having info available. When issues come in at project level, or grievance redress at bank. Stakeholder engagement, worker condition issues, gender-based violence (GBV) developed specialised teams appreciate Mac pointing out standard 10, big issue is translation, especially when projects have budget challenges. Can be slow and difficult. That along, with disparities, context is more complex today, look at shifting nature of govts – liberal democracies one way and not the next, how do you deal with accountability in those kinds of changes. Another way to tackle accountability, in procurement system, often around actions of contractors. We have tried to marry ESF with procurement policy so we have codes of conduct where we hold contractors to account. Remedies including debarment, link up with issues like GBV and environmental and social non-compliance.

Grievance redress – board has indicators desire (management supports) in enhancing. Has provision on maintaining confidentiality, mandatory to relay to grievance redress service, caseload has doubled, time-limits. Bank has done over last decade, made clear that all of these mech have learning obligations – to convey to staff, board, outside world. Work closely to harmonise, converge where we can. Includes GCF and others. Under first review with board under IAM, have put in provision for IAMs to be put in for requestors and to convey how we deal with the board. We are making progress.

Questions and discussion

Question 1) How easy is access to these mechanisms? Is there any way to measure? Is it free, low cost. How to publicise these mechanisms?

Answer: There’s always a cost, based on complexity of policies orgs have in place. Importance of making sure clients have opportunities to convey. Complexity of how to access, some note, some more detailed.

Kris Genovese: right now mechanisms make really great effort to do outreach around the world to support civil society communities, but this is an inefficient way of addressing. Communities have to do a lot of work to find out if a Bank is financing a project. New provision in the GCF explicit provision- where will bear the cost. For example, transportation, food refreshments.

Question 2) Need to upward harmonisation. The SOMO paper shows best practice, what are obstacles that might be less obvious?

Both CAO and IPN currently going through review process, tool, be interested to hear from IFC, CAO, how useful is tool?

Kris Genovese: Glass Half Full report and this project because we are also siloed. Regarding mechanisms that have to approve of the management action plan. Would that then put the mechanism in a tough situation. Challenge notion of one size doesn’t fit all. It will look different in practice, but which of these things do not make sense for all mechanisms? A complaint is a complaint.

Constraints for resources for communities, and immense resources of multilateral companies, what is the success rate?

The Center for International Environmental Law was part of Glass Half Full, how are these mechanisms providing remedy for communities? Many of these mechanisms are not created to provide remedy, created for report on compliance of the bank, what the bank did and didn’t do. In many cases, complainant will not get anything. Often no way monetary compensation, settlement, any type of compensation. This is the question, how many people actually get remedy, that is why some communities don’t come back.

Osvaldo L. Gratacós: emphasises limitations, and yet common understanding on redress, question is how that goes from conversation to action.

Kris Genovese: On the success rate, I don’t know the exact number. Accountability Counsel measure how many complaints end in tangible results, then it takes a lot of work to go a step further. Sometimes we treat dispute resolution and compliance review as different animals, but the end result should be redress if there have been harms and learning. We often time think of compliance review about accountability of institution, as if can have that without addressing harm. Each function has to provide both, that’s why we recommend they are under one roof. Communities need to have one place to go so that they are able to understand advantages and disadvantages so they can make decision on what’s best for them. Although many communities don’t receive any results.

Charles di Leva: On redress, we need to understand that the development finance field is more complex than it used to be. More participants in process with different degrees of responsibility, including sovereign wealth funds. If development was successful, capacity would be there for actors at site level to be dealing with it at local level. Lot of these issues are to do with a deficit on the social justice side. Difficult to ever get a satisfying sense of justice. Communities should be empowered to make complaints and know who to follow up with.

Stephanie Amoako (Acting Policy Director, Accountability Counsel): Accountability Counsel will be releasing an Accountability Console with all IAM complaints where you will be able to see outcomes.

Koen Davidse: All the work here creates a sense of inevitability – that harm needs to be addressed, building capacity along sustainable development goal 16. Importance of continually lowering the threshold. Importance of safety and confidentiality. Finally, has to be about redress and institutional learning.