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Date:  Fri, 29 Nov 2002 19:25:23 +0900
From:  Mekong Watch Japan <info@mekongwatch.org>
Subject:  Mekong Watch CATFISH TALES Issue #8 (29 November 2002) SPECIAL EDITION
To:  catfish@mekongwatch.org
Message-Id:  <200211291025.gATAPL3L000091@smtp14.dti.ne.jp>
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Mekong Watch CATFISH TALES


29 November 2002  Issue #8 SPECIAL EDITION


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SPECIAL EDITION on the COMPLAINTS PROCEDURE FOR JBIC's ENVIRONMENTAL 
GUIDELINES

The Japan Bank for International Cooperation (JBIC) has held a series of 
public consultations in its process of establishing a complaints procedure 
for its new Environmental Guidelines.  The last consultation was held on 18 
November 2002.  This Special Edition builds on the information given in 
past issues of Catfish Tales and explains the problems remaining after the 
last public consultation.  While improvements were made during the process, 
information disclosure and the timing during which JBIC will accept formal 
complaints are two issues that NGOs and JBIC have not yet been able to 
agree upon.
	
CONTENTS:

A.  Background to Complaints Procedure
B.  Why is Mekong Watch Participating in the Process?
C.  Results of the Final Public Consultation on the Complaints Procedure
     1. Timing of Filing Complaints
        a.  For Yen Loans
        b.  For International Financial Operations
     2.  Information Disclosure
D.  What's Next?

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COMPLAINTS PROCEDURE FOR THE ENVIRONMENTAL GUIDELINES OF THE JAPAN BANK FOR 
INTERNATIONAL COOPERATION:  PUBLIC CONSULTATIONS FOR JBIC COMPLAINTS 
PROCEDURE COMPLETED (18 November 2002)


A.  BACKGROUND TO COMPLAINTS PROCEDURE

The Japan Bank for International Cooperation (JBIC) established its new 
Environmental Guidelines for both ODA and International Financial 
operations.  These guidelines will go into full effect from 1 October 
2003.  In order to ensure that the guidelines are enforced, JBIC is now in 
the process of establishing a complaints procedure through which project 
stakeholders can file complaints if JBIC fails to follow its new 
guidelines. If approved, the complaint will be investigated by an 
Environmental Inspector, making this complaints procedure a form of 
inspection mechanism as well.

JBIC has been holding public consultations, making it possible for NGOs, 
private corporations, and other stakeholders to participate in the 
development of the new complaints procedure.  The first draft of the 
complaints procedure was released in late August, and many weaknesses in 
the draft have been addressed through the consultation process.  As 
reported in Catfish Tales Issue #7, however, serious concerns regarding 
information disclosure and the timing in which complaints would be accepted 
by JBIC remained, even immediately before the final consultation held on 18 
November.


B.  WHY IS MEKONG WATCH PARTICIPATING IN THE PROCESS?

Mekong Watch and other NGOs have been participating in this consultation 
process in order to make the resulting policies as useful as possible for 
people in the Mekong Region.  For communities affected by development 
projects, policy makers and those responsible for implementing policies are 
often inaccessible, making participation or input into decision-making very 
difficult.

JBIC's role in development in the Mekong Region is significant.  Looking at 
some of the major "problem projects" such as the Samut Prakarn Wastewater 
Management Project or the Hin Krut and Bor Nok Coal-Fired Power Plants in 
Thailand, it is clear that both JBIC's ODA (yen loan) and international 
financial operations (ie: export and import loans, and other operations 
which provide more direct benefit to Japanese corporations) need to be 
addressed.

While Mekong Watch has traditionally focused on specific projects in the 
Mekong Region, we have found it important to participate in the 
policy-making process in Japan.  The previous lack of sound policies for 
environmental and social considerations in JBIC's operations was one factor 
contributing to the lack of transparency and accountability in the way 
JBIC-financed projects were decided and implemented. The lack of policy 
also meant that there were few tools for NGOs and project-affected 
communities to use to raise their concerns regarding projects.  And of 
course, there were many projects in dire need of addressing!

Mekong Watch hopes that the new policies, both the environmental guidelines 
and the complaints procedure for the Guidelines, will be tools which NGOs 
and project-affected communities can use to address and prevent many of the 
problems we have seen in the past.


C.  RESULTS OF FINAL PUBLIC CONSULTATION ON COMPLAINTS PROCEDURE

During the last public consultation, the two main topics of discussion were 
information disclosure and the timing from which JBIC would begin accepting 
complaints filed through the complaints procedure.


1.  TIMING OF FILING OF COMPLAINTS

JBIC's position was that complaints could be filed only after Loan 
Agreements (L/A) were signed.  This would mean that the complaints 
procedure would be completely ineffective for addressing concerns during a 
decision-making period in which modifications to L/As would be possible.

The reason JBIC gave for this is the legal definition of "complaints 
procedure."   In Japan, there is a law regulating the filing of complaints 
regarding non-compliance with administrative procedures.  According to this 
law, complaints can be filed only in regard to decisions already made by 
the administrative body.  Decisions still in the process of being made are 
not subject to this legal complaints procedure.  In principle, people can 
raise concerns during the decision-making process which can be taken into 
consideration, influencing the final decision.

JBIC has chosen to stick with this very strict legal interpretation of the 
term "complaints procedure," while NGOs had considered it in more general 
terms. JBIC's interpretation changed the nature of the debate to define the 
precise point at which it could be said the Bank had made a decision on a 
project's compliance with the environmental guidelines.  JBIC initially 
insisted that the L/A was the point at which a final decision is made on a 
project, and it was therefore only after the L/A that complaints could be 
filed in line with the complaints procedure.

NGOs participated in this public consultation and pushed strongly for 
acceptance of complaints prior to signing of L/As and for sufficient 
information disclosure to ensure that the complaints procedure is 
responsive, transparent and accountable.

While JBIC refused to budge on these points in regard to its international 
financing operations, more flexibility was shown for ODA (yen loan) 
operations.


a.  TIMING OF FILING OF COMPLAINTS FOR YEN LOANS

In regard to yen loans, JBIC will accept complaints through the complaints 
procedure prior to the L/A.  Prior to the L/A, JBIC must send a 
recommendation to the three line ministries (MOFA, MOF and METI) for a 
project's approval, and the Cabinet then gives its approval and a pledge 
(political commitment) can be made before the L/A is signed.  JBIC 
acknowledged that at the point it sends the recommendation to the line 
ministries, it has made a decision on the environmental soundness of a 
project.  It will, therefore, accept complaints through the complaints 
procedure after it has sent the recommendation to the ministries (prior to 
the L/A).


b.  TIMING OF FILING OF COMPLAINTS FOR INTERNATIONAL FINANCIAL OPERATIONS

In regard to international financial operations, however, JBIC stood firm 
in its position that it would not accept complaints until after the L/A had 
been signed.

In the case of international financing, which provides more direct 
assistance to private corporations, JBIC insisted that though it makes 
certain decisions regarding a project's environmental soundness before the 
L/A, there is no political commitment as with yen loans, and subjecting 
international finance projects to the complaints procedure prior to the L/A 
could disadvantage companies in bidding processes. For these reasons, JBIC 
refuses to allow complaints to be filed through the official complaints 
procedure in regard to international finance projects prior to the L/A.

Participants in the consultation who came from private corporations made 
comments supporting JBIC's position, stating that even prior to the L/A, 
people can raise concerns regarding a project to JBIC's Environmental 
Inspection office, and that should be sufficient.

One of the difficulties that NGOs have faced, however, is being unable to 
measure to what degree interventions are actually taken into consideration 
in decision-making processes at JBIC.  While expressions of concern 
regarding projects may be heard at JBIC before an L/A is signed, past 
experience indicates that those concerns are not necessarily appropriately 
incorporated into final decisions.


2.  INFORMATION DISCLOSURE

In regard to information disclosure, there was again a distinction made 
between yen loans and international financing.  Generally for yen loans, 
JBIC has agreed to disclose JBIC documents.  For international financing, 
however, information such as the name of the project or the content of the 
complaint may not be disclosed.

Though the public consultations are now over, JBIC has recognized that 
there remain 3 points which could be considered further.

(1)  In the case that there are concerns raised repeatedly over a project 
to the responsible party at JBIC, and no understanding can be reached prior 
to the L/A, JBIC should accept the filing of a complaint in accordance to 
the complaints procedure.

(2) Clarification must be provided regarding the content and timing of 
information disclosure.

(3) Once a report has been made to the JBIC President regarding a complaint 
filed, it should be disclosed immediately, without waiting for the response 
required within the next month of the international finance division of 
JBIC.  The final report should be written in a way that also makes clear 
the opinions of all stakeholders.


D.  WHAT's NEXT?

In February 2003, JBIC will compile the feedback on the complaints 
procedure from governments of developing countries and release its final 
draft for public comment.  In mid-March, public consultations will be held 
again, with discussions to be based on the comments received.  The final 
version of the complaints procedure will be released at the end of March, 
and then will be put into effect together with the Environmental Guidelines 
in October of 2003.


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