2013 – 2014 OPIC OA Policy Review

In August 2013, the OPIC Office of Accountability (OA) began accepting public comments on its draft operational guidelines as a part of a review process. The public review process occurred as a result of Accountability Counsel’s advocacy efforts to improve the transparency and functioning of the OA.

On 18 October, 2013, Accountability Counsel and 25 organizations and individuals submitted comments for the review process. Accountability Counsel also submitted supplementary comments based on experiences in our OPIC OA Cerro de Oro case.

The Result

On 11 April, 2014, the OA publicly released a final version of the revised procedures governing the functioning of its office and a comparison of the 2005 rules to the new final policy:

• OPIC OA 2014 operational guidelines
• OPIC OA comparison of old and new operating procedures

Our Impact

Several of Accountability Counsel’s key suggestions were adopted in the final policy. These positive changes included:

Accessibility

• Designated representatives now have the ability to request that the OA keep the identity of complainants confidential.
• Communications with and reports sent to the complainants must now be translated into a local language or a language locally understood.
• The eligibility criteria were revised to align with the OA’s mandate: complaints now must only contain allegations of actual or expected harm resulting from environmental or social effects of an OPIC-sponsored project. Draft language requiring allegations of “material, direct, and adverse impacts” was deleted.
• A possible barrier to the OA was removed: the language in the draft allowing OPIC officials to work with the OPIC client to address the issues before the OA’s own problem-solving services was deleted.

Effectiveness

• The list of policies that that could potentially be covered during a compliance investigation was expanded to include the OPIC procedures manual.

Fairness

• The determination of which service(s) will be provided (compliance review and/or problem-solving), and in which order, is now based on the complainants’ preference.
• Although the OA can still unilaterally terminate problem-solving, the OA must now provide advance notice to the parties of its intention to terminate the process.
• Language allowing the OA to evaluate the potential to address the conflict with third parties, instead of the OA, was deleted.

Key issues remain that should be addressed in future OPIC OA Operational Guidelines reviews:

• The OA should separate the problem-solving and compliance review functions so that the same person does not conduct both, as housing both functions in the same person raises the risk of conflicts.
• The OA should not be permitted to unilaterally close a process without engaging in a consultation with the parties.
• Although the final guidelines removed language that specifically allowed the OA to evaluate whether to engage with third parties about the conflict, the guidelines are now silent on the issue. If the OA ever decides to transfer problem-solving to a third party in practice, it should seek complainants’ permission and respect their decision about their choice of facilitator.
• The OA must communicate with the complainants in their language, not just a “language that is locally understood.” The OA must ensure that it communicates in a language that the complainants fully understand, regardless of whether or not it is spoken by others in that area.
• The updated guidelines now require the OA to maintain direct communication with all parties, regardless of representation. The OA must respect the complainants’ right to have representatives present and included in all communications with the OA, should they so desire.
• The updated guidelines provide that the OA will seek agreement from the parties as to who will monitor the implementation of agreements. The OA should always have a monitoring role and should not give up this authority.
• The appraisal stage should be removed from the Guidelines. The OA should not engage in a cost-benefit analysis to determine whether to conduct a compliance review.
• During a compliance review, the OA should be required to consult with complainants. The current guidelines only provide that the OA may consult with complainants.
• Complainants, not just OPIC management, must be allowed to review a draft compliance investigation report and to respond to the final compliance report in order to enhance transparency, fairness, and effectiveness.

The OPIC Office of Accountability Review, 2012 – 2014

Advocating for an Independent and Transparent Review Process

January 2012 – The OA Director began to undertake a closed, private review of the OA’s procedures without public notice and comment and without a transparent timeline or any public information about the scope of the review.

6 April, 2012 – Accountability Counsel launched a campaign to encourage an open and transparent review process. We submitted a letter joined by 18 civil society partners around the world.

July 2012 – The OA announced that it would initiate a public review process.

December 2012 – The OA publicly announced its review process.

25 June, 2013 – Despite several requests for a timeline, the OA failed to provide any information about when it would initiate its public comment period, prompting Accountability Counsel and 12 other civil society groups to send a letter to the OPIC OA requesting an update.

More information about this campaign to ensure that the OA’s review process was independent and transparent is available here.

The Public Review Process

August 2013 – The OA began accepting public comments on draft guidelines to replace the rules then governing the office.

18 October, 2013 – Accountability Counsel and 25 organizations and individuals submitted joint comments to the OPIC OA on its draft guidelines (also available in Spanish). Our comments focused on removing restrictions on eligibility criteria, eliminating the OA’s deference to OPIC Management prior to processing complaints, and maintaining independence within the problem-solving and compliance review processes.

Accountability Counsel also submitted supplementary comments based on our experiences in the Cerro de Oro case involving a complaint to the OA.

11 April, 2014 – The OPIC OA publicly released its final version of the revised Operational Guidelines, which contained some of our main recommendations.