Legal Risk and Accountability in Development Finance: Lessons from Jam v. International Finance Corporation

In a landmark decision in 2019, the U.S. Supreme Court ruled in Jam v. International Finance Corporation that international organizations like the International Finance Corporation (IFC), the private lending arm of the World Bank Group, can be sued in U.S. courts, ending the “absolute immunity” from suit that they had long claimed. The Jam lawsuit arose out of IFC’s gross mishandling of the Tata Mundra coal-fired power plant project in Gujarat, India, which has destroyed the livelihoods, environment, and way of life of local communities living in its shadow. The lawsuit, and especially the clash between IFC’s sweeping assertions of jurisdictional immunity on the one hand, and its role in harming communities and the need for remedy to the communities on the other, brought substantial international attention and public scrutiny to the broader accountability crisis at IFC. In particular, the suit revealed that too often IFC-funded projects result in harm to the poorest and most vulnerable – the very people IFC is meant to help – and when this happens, neither IFC nor its borrowers take meaningful action to remedy that harm

Updating the Caroline Doctrine: A Relic In an Age of Hypersonic Weapons

The United States dropped “Little Boy” and “Fat Man” on the cities of Hiroshima and Nagasaki in 1945, bringing an end to World War II and killing between 110,000 and 210,000 people. Japan surely needed much more than rock and roll to help them—especially since Japan had no nuclear weapons of their own to deter the United States from attacking with nuclear weapons. Nuclear weapons technology has evolved considerably in the years since 1945, when only the United States possessed nuclear weapons. Nine states now have or are suspected of having them, and at least one other state appears to be working towards a nuclear weapons capability. Delivery systems have become faster, stealthier, and more accurate while the quantity, explosive yield, and lethality of nuclear explosive devices have also increased. With the potential to cause immeasurable destruction, world leaders have for decades sought to decrease the threat of nuclear war, reduce nuclear arsenals, and—most importantly—prevent further proliferation of nuclear weapons

World Bank\u27s Roadmap and the Inspection Panel\u27s Human Rights Responsibilities

The World Bank has been under pressure to devise a process for “evolving” its mission, operations, and resources, acknowledging that decades of engagement with low- and middle-income countries has resulted, paradoxically and contrary to its official mission, in a “crisis of development.” The Bank bluntly notes in the opening to its paper “Evolving the World Bank Group’s Mission, Operations, and Resources: A Roadmap,” issued in December 2022, “after decades of progress, growth and poverty reduction have stalled.” Indeed, this “crisis of development” threatens to unleash political instability around the world

Regulating Fintech: A Harm Focused Approach

Much of the discourse around fintech regulation focuses on how regulation can best facilitate private-sector innovation. However, financial regulators in the United States do not have a statutory mandate to promote private sector innovation. This Article argues that when devising approaches to regulating fintech, financial regulators should be guided by their statutory mandates – and that these mandates (even mandates for efficiency and competition) should be conceived of as instructions to prevent or mitigate public harm. This Article then uses the framework of “accommodating, taming, or coping” to assess some extant fintech regulatory strategies in light of how they respond to the public harm arising from some fintech business models (particularly crypto business models). This Article is critical of regulatory strategies designed to peel back existing protective regulation to accommodate private sector fintech innovation; instead, it advocates for a taming approach but recognizes that, in practice, protective regulatory responses can more accurately be described as coping. The Article concludes with an exhortation for more precautionary taming regulation of fintech technologies and business models

Copyright and COVID

During the COVID-19 pandemic it became widely recognized that speedier access to patent rights should be enabled to speed global scale-up of vaccine production. This understanding was expressed in a proposal by India and South Africa that the World Trade Organization suspend multilateral intellectual property rules on COVID vaccines, treatment and containment. The original waiver proposal proposed a suspension of WTO rules on all forms of intellectual property needed for a broad range of COVID-19 response measures, including “vaccination,” “treatment,” and “containment.” The final “TRIPS Waiver,” however, was ultimately limited to a minor provision of TRIPS permitting greater use of compulsory licenses on patents for vaccine production. Other intellectual property issues, such as the many copyright barriers to responding to COVID, were left unaddressed in the waiver and also largely unexamined in the academic literature

IMF Human Rights Accountability: A Pragmatic Way to Break the Deadlock

In the three decades since the 1993 establishment of the World Bank Inspection Panel, almost all development finance institutions (DFIs) have established analogous panels, ombudsperson offices or other independent accountability mechanisms (IAMs) to allow people who believe they have been harmed by the DFI’s activities to directly trigger processes of fact-finding, dispute resolution, and, if applicable, redress. The primary exception has been the International Monetary Fund

The Impact of Inter-American Human Rights System: Transformations on the Ground

The Inter-American System of Human Rights (IASHR) is certainly a source of innovation in human rights law and policy. However, uncertainty reigns over its true legal, political, and social effects as many decisions face serious problems of compliance. To better grasp the System\u27s effects, this book broadens the focus from compliance to impact as the key criterion of effectiveness. Thus, The Impact of the Inter-American Human Rights System: Transformations on the Ground can reveal the IASHR\u27s deep and multifaceted effects, not least by embedding a common law of human rights. Outlining the IASHR\u27s historic path and contemporary practice, this book shows legal, political, and social effects with respect to the main problems that trouble the Americas. Though most of these certainly continue to exist, the System is having a transformative impact on them on the ground, though with huge differences between issues and countries. These achievements as well as the variations should be of interest to academics, judges, and policymakers in Latin America as well as other regions undergoing similar stress, such as Central and Eastern Europe or Africa. The Impact of the Inter-American Human Rights System brings together leading scholars in international and constitutional law, social sciences, and international relations to present a systematic and critical analysis of the impact of the IASHR in the various fields of its activity. These include issues of internal conflicts, transition to democracy, rights of vulnerable groups, social rights, the environment, digital rights, and the accountability of private actors. The book also offers evidence-based proposals to further enhance the transformative impact of the Inter-American System that could be taken up by courts and policymakers at the national, Inter-American, and global levels.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1419/thumbnail.jp

Exiting the Disaster, Evading the Responsibility? Wadi al-Qamar -- The Moon Valley

This essay explores a case that delivered no results for the complainants, where harm was not prevented, and where stakeholders who filed the complaint were not compensated. Investigated by the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC), the Wadi al-Qamar case illustrates some of the limitations of accountability mechanisms in limiting the harms caused directly or indirectly by projects in which the International Financial Institutions (IFIs) invest

The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law

Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of the European Union. However, research, as an activity that is indispensable to achieve the aims and objectives of the Union to enable technological, scientific, and cultural progress and work towards a sustainable future, has insufficiently featured in this constitutional discourse. The digital environment and its tremendous potential to enable new forms of research has accentuated the urgency of addressing the issue from a constitutional perspective under the heading of “digital constitutionalism”. It is therefore argued that a ‘right to research’ derived from international and European human and fundamental rights law can play an important role in the future to remove copyright barriers to research activities and to inform reforms towards more sustainable and research friendly copyright laws in the EU. Although a ‘right to research’ is not expressly included in any of the relevant human rights and fundamental rights instruments, it is so implicitly: in fact, the seeds of a right to research are already contained in a variety of fundamental rights at European and international level and in the aims and objectives of the Union’s constitutional order. Based on the relevant fundamental rights, this paper tries to identify the substance of the right to research, arguing that there is a constitutional imperative to create a paradigmatic shift in European union copyright law towards a copyright system that can help to achieve the programmatic goals of the Union such as sustainable development, innovation and justice that are the core of a regulated market economy. In order to help positioning research as a core priority of the European Union, this paper further proposes the introduction of a specific right to research in the Charter of fundamental Rights of the EU as a precondition for the protection of the moral and material interests of creators, thus mirroring the international human rights justifications of copyright protection

A Comparative Analysis of Domestic and International Legislation on Combating International Bribery and Corruption

This composition compares and contrasts the legislation used in addressing and preventing transnational bribery and corruption at the domestic, regional, and international level. Using the history and current application of the United States Foreign Corrupt Practices Act as a foundation, this composition analyzes the legislation of fifteen nations, two international organizations, and three regional bodies, and their approaches in combating the growing issue of transnational bribery and corruption. This composition analyzes and interprets the common themes, historical and contemporary patterns, as well as trends at each government level, and potential future courses of action. The denouement of this work seeks to present an egalitarian solution that accentuates the noteworthy characteristics of each level, and how they can function in a single, harmonious mechanism