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‘Right to appeal’ IFIs and Accountability – on the Way to Independent Compliance and Appeal Mechanisms for the EIB Conference on 30 November 2006, Brussels What Accountability Mechanism Are We Looking for in the Case of the EIB? Kunibert Raffer http://homepage.univie.ac.at/Kunibert.Raffer
Article 29, Statute of the EIB Disputes between the Bank on the one hand, and its creditors, debtors or any other person on the other, shall be decided by the competent national courts, save where jurisdiction has been conferred on the Court of Justice. The Bank shall have an address for service in each Member State. It may, however, in any contract, specify a particular address for service or provide for arbitration. The property and assets of the Bank shall not be liable to attachment or to seizure by way of execution except by decision of a court.
Recalling the IBRD Art. VII(3), Articles of Agreement: actions against IBRD (except by members or persons acting for or deriving claims from members) in “courts of competent jurisdictions” - property and assets “immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.” General Conditions for Loans (of 1 July 2005) Section 8.04 (formerly: General Conditions, Section 10.04) =>ARBITRATION
Internal Mechanisms - External Mechanisms (Not Being Party, Judge, and Jury) FinancialAccountability(Raffer 1993, 1990, 2004) • Paying for damages caused by (grave) negligence or by not obeying minimal professional standards • Not benefiting from one’s own errors and negligence to the detriment of one’s clients • Linking economic decisions and risks – the fundamental principle of any market economy (moral hazard)
Applying Tort Law – As Obviously Intended by Founders Economic & Legal Consequences • Compensation for Costs Caused by • (Grave) Negligence • Willfully Inflicted Damage • Allowing the Market Mechanism to Work • Allocative Efficiency • Taxpayers’ Money Properly Spent
Introducing Financial Accountability • (Inter)NationalCourts orArbitration (Permanent International Body) Role for NGOs – Would be logically in Line with Cotonou’s “fundamental principle” of participation • International Chapter 9 (Raffer 1987, 1990, 2006): • Symmetrical Treatment of All Creditors
Inspection Panel AT LEAST: Aris, Fischer, Flano, and Herfkens (also called February 10 Proposal) Panel members NOT officials of the Bank, NOT“subject to the requirements of the Bank's Articles of Agreement concerning their exclusive loyalty to the Bank” IF/Whenever IP finds negligent behaviour => obligation to financial compensation PRECONDITION Transparency, Access to Information
THANK YOU MERCI BEAUCOUP DANK U DANKE SCHÖN