Sanctions Regimes of Multilateral Development Banks

What Process is Due

Author:
Jelena Madir
In Sanctions Regimes of Multilateral Development Banks: What Process is Due, Jelena Madir examines the type of due process rights that should characterise sanctions regimes of multilateral development banks (MDBs). By benchmarking against comparable regimes, including the jurisprudence of the European Court of Human Rights and administrative tribunals of international organisations, the author analyses the extent to which MDBs’ sanctions regimes should be bound by the rules of law, analogous to those of national judicial bodies, and the level of due process and transparency that should be required from these ever-evolving regimes that are generally immune from judicial review.

The book should be of use to scholars, practicing lawyers and legal advisers in government and international organisations, as well as to lawyers whose practice concerns global sanctions and MDBs’ privileges and immunities.
Copyright Year:
2021
E-Book (PDF)
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Published
ISBN:
978-90-04-41412-9
Publication:
30 Nov 2020
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Published
ISBN:
978-90-04-39586-2
Publication:
05 Nov 2020
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Jelena Madir is the General Counsel at Gavi, the Vaccine Alliance.  Previously, she was a Chief Counsel at the European Bank for Reconstruction and Development (EBRD), where she served as the Secretary of EBRD’s Enforcement Committee for nearly ten years. She has also worked in law firms in Washington, DC, Frankfurt and Zagreb, and is admitted to practice in Washington, DC; England and Wales; and to the Roll of Solicitors in the Republic of Ireland.
"A timely and in-depth comparative study of the development and operation of the sanctions regimes of the MDBs viewed from the perspective of due process. A practical guide to the procedures, range of sanctions and sanctioning practices of MDBs with a blue print for future developments. Of interest to a broad range of practitioners, academics and generally those concerned with anti-corruption initiatives." - Andrés Rigo, Current and former member of several Sanctions Boards
"Jelena Madir’s insightful analysis of the origins, strengths and weaknesses of the sanctioning regimes of the multilateral development banks’ is a significant achievement. She draws attention to the impact these regimes have had on corporate behaviour but raises legitimate questions about the accountability of the organisations that administer these regimes. The author argues convincingly that the MDBs must consider what she calls “enhancements” if these regimes are to withstand growing judicial challenges. Drawing upon customary and international law, national jurisprudence, as well as jurisprudence from the MDBs’ own administrative tribunals, Ms Madir makes a strong case that greater harmonisation and enhancement of due process protections are key to the survival of the MDBs’ ability to safeguard against the misuse of their funds." - Enery Quinones, Former Chief Compliance Officer, European Bank for Reconstruction and Development
"This is a very interesting and well-researched book, that will be of great use for anyone who has an interest in the sanctions regimes of the multilateral development banks." - James Spinner, Former Chair of the World Bank Group Sanctions Board
Preface and Acknowledgements
Abbreviations

Introduction

1 Origins and Description of Multilateral Development Banks’ Sanctions Regimes
1 Introduction
2 Origins of Multilateral Development Banks’ Sanctions Regimes
 A Federal Acquisition Regulation (far)
  (I) Causes for Debarment
  (II) Suspension
  (III) Debarment Procedures
  (IV) Judicial Review and Due Process Rights
 B Evolution of the World Bank Group’s Sanctions System
  (I) First Sanctions Regime
  (II) The Thornburgh Report
  (III) Expansion of Sanctions Regime beyond Procurement and Launch of the Voluntary Disclosure Programme
  (IV) Early Harmonisation Efforts with the Other MDBs
3 Description of Multilateral Development Banks’ Sanctions Regimes
 A World Bank Group’s Sanctions Regime
  (I) Two-step Decision-making Process
  (II) Range of Possible Sanctions
  (III) Settlements
 B Inter-American Development Bank’s Sanctions Regime
  (I) Early Developments and the Thornburgh Repor
  (II) Two-step Decision-making Process
  (III) Range of Possible Sanctions
  (IV) Settlements
 C European Bank for Reconstruction and Development’s Sanctions Regime
  (I) Early Developments
  (II) Two-step Decision-making Process
  (III) Range of Possible Sanctions
  (IV) Settlements
  D African Development Bank’s Sanctions Regime
  (I) Early Developments
  (II) Two-step Decision-making Process
  (III) Range of Possible Sanctions
  (IV) Settlements
 E Asian Development Bank’s Sanctions Regime
  (I) Early Developments
  (II) Two-step Decision-making Process
  (III) Range of Possible Sanctions
4 Comparison of Multilateral Development Banks’ Sanctions Regimes and the Cross-debarment Regime
 A Comparison of Multilateral Development Banks’ Sanctions Regimes
 B Cross-debarment Regime
5 Conclusion

2 Judicial Review Standards
1 Introduction
2 Judicial Review Standards in the UK
 A Bases for Judicial Review
 B Required Procedures
  (I) Notice
  (II) Right to Make Representations: Written or Oral Proceedings?
  (III) Right to Call and Cross-examine Witnesses
  (IV) Right to Legal Representation
  (V) Failure to Give Reasons for the Final Decision
3 Judicial Review Standards in the US
 A Bases for Judicial Review
 B Required Procedures
4 Conclusion

3 Accountability of International Organisations
1 Introduction
2 Basis of International Organisations’ Immunities
3 Case Law
 A US Courts
 B UK Courts
 C Italian Courts
 D French Courts
 E Belgian Courts
 F Human Rights Dimension and the ECHR
4 Conclusion

4 What Legal Principles Should Form the Basis of the MDBS’ Sanctions Regimes? 1 Introduction
2 Customary International Law and General Principles
3 Global Administrative Law
4 Article 6(1) of the European Convention on Human Rights
 A Civil Rights
 B Hearing
 C Independent and Impartial Tribunal
5 Public Judgment/Reasoning of Judicial Decisions
 A Fair Trial
6 Jurisprudence of Multilateral Development Banks’ Administrative Tribunals
 A Discovery Rights
 B Oral Hearings and Witnesses
 C Publication of Decisions
 D Composition of Administrative Tribunals
  (I) WBAT
  (II) UN Appeals Tribunal
  (III) IMF Administrative Tribunal
7 Conclusion

5 Due Process Standards in Multilateral Development Banks’ Sanctions Regimes
1 Introduction
2 Discovery Rights
 A Permissive Approach and Production of Documents
 B Experts’ Reports and Assessment of Evidence
 C Witnesses and Oral Hearings
3 Publication of Decisions
4 Referral to National Authorities
5 Composition of Sanctions Boards
 A Sanctions Board Members’ Independence and Impartiality
 B Appointment of Sanctions Board Members
6 Range of Sanctions and Their Proportionality to the Wrongdoing
7 Baseline Sanction
8 Restitution
9 Settlements
10 Conclusion

6 Treatment of Corporate Groups under the Multilateral Development Banks’ Sanctions Regimes
1 Introduction
2 Overview of the Harmonized Principles on Treatment of Corporate Groups
3 Liability of a Company for Its Employees’ Wrongdoings
 A US Law
 B UK Law
 A Application of the Foregoing Principles to the MDBS’ Sanctions Procedures
4 Liability of a Parent for Its Subsidiaries’ Wrongdoings
 A US Law
  (I) General Approach
  (II) Criminal Liability, Including FCPA
  (III) Proposals for Reforms of the US System
 B UK Law
  (I) General Approach
  (II) Criminal Liability, Including UK Bribery Act
 C Application of the Foregoing Principles to the MDBS’ Sanctions Procedures
5 Liability of a Subsidiary for Its Parent’s Wrongdoings
 A US and EU Sanctions Regimes
 B Application of the Foregoing Principles to the MDBS’ Sanctions Procedures
6 Successor Liability
 A US Law
 B UK Law
 C Application of the Foregoing Principles to the MDBs’ Sanctions Procedures
7 Conclusion

7 Conclusion and Way Forward

Bibliography
Index

The book should be of use to scholars, practicing lawyers and legal advisers in government and international organisations, as well as to lawyers whose practice concerns global sanctions and privileges and immunities of international organisations.
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Publisher:
Brill | Nijhoff
Language:
English
Pages:
xii, 268 pp.
DOI:
https://doi.org/10.1163/9789004414129

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