Hardening the Legal Softness of the World Bank Through an Inspection Panel?

Article by PluriCourts coordinator Ole Kristian Fauchald, published in Scandinavian Studies in Law, Vol. 58 (2013). Read the article on SSRN.

Beyond the Articles of Agreement of the International Bank for Reconstruction and Development (1944), which is the treaty establishing the World Bank and associated procedural rules, the activities of the Bank are governed by numerous soft law instruments. Primary among these are the operational policies and procedures (OPPs). These consist mainly of Operational Policies (OPs), which are norms for how the Bank’s Management is to carry out operations, and Bank Procedures (BPs), which are more procedurally oriented instructions setting out how World Bank policies are to be implemented.

The World Bank Inspection Panel (IP), which was established by a resolution of the World Bank in 1993, has generated significant interest among legal scholars due to its characteristics. It functions as an organ reviewing acts and omissions of the Management of the World Bank as a response to requests from private parties (hereinafter ‘requesters’) affected by World Bank projects. Such requests are based on the OPPs adopted by the Board of Executive Directors of the World Bank. As of April 2012, the panel had received requests in 70 different cases. Of the 61 cases in which it so far has made a final recommendation concerning investigation, it has recommended investigation in 32, of which investigation was subsequently rejected by the Board of Executive Directors in four cases. Of the remaining 28, it has finalized investigation reports in 26 cases. All these reports concluded that there had been non-compliance with the OPPs.

The main purposes of this article are to study the normative characteristics of the OPPs upon which the IP bases its decisions, and to examine whether and how the IP has contributed to ‘hardening’ the legal characteristics of the OPPs. The latter task involves a critical examination of the view that the IP is to be regarded as a bottom-up accountability instrument essentially internal to the World Bank. My main underlying hypothesis is that the OPPs in combination with the IP have contributed to ‘harden’ the ‘soft’ characteristics of the World Bank. Such a process of hardening ‘soft law’ can be termed a process of ‘legalization’.

Read the entire article here.

Published Jan. 12, 2015 3:57 PM - Last modified Oct. 12, 2017 2:56 PM