Sanctions Regimes of Multilateral Development Banks

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.

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