Side – event of the German Emissions Trading Association (bvek) A new generation of international public law - the introduction of an appeals process to

Side – event of the German Emissions Trading Association (bvek)

A new generation of international public law - the introduction of an appeals process to the CDM09 April 2010 at the UNFCCC AWG-KP 11 and the AWG-LCA 9 meeting

© 2010 ECOSECURITIES GROUP PLC

A new generation of international public law - the introduction of an appeals process to the CDM

Friday 09 April 2010 at the UNFCCC AWG-KP 11 and the AWG-LCA 9

Introduction

The current CDM approval and review process – an international administrative system without an independent review and consequences for its participants (both the regulator and the regulated

Alexander Sarac, General Counsel, EcoSecurities and vice-chair of the German Emissions Trading Association

Individual remedies in the UN system – a comparative review of flaws, loopholes and achievementsProf. Dr. Michael Bothe, Johann Wolfgang Goethe University, Frankfurt (Main)

General principles of public law proceedings and judicial review of administrative actions – A comparative

analysis of EU law and the administrative law of EU member statesDr. Ludger Giesberts, Partner, DLA Piper UK LLP

Comments by the secretariat Mr Feng Gao, Director Legal Affairs, UNFCCC Secretariat

The contributions by the panelists will be followed by discussions and the auditorium is encouraged to participate as well. This first side-event related to this topic should mark the starting point for an international

debate and should attract legal professionals, state representatives, and the business community.


Regulatory function of the CDM EB - Registration

Registration: 1.Project Participant (“PP”) applies for permission for voluntary participation in CDM

2.CDM EB permits voluntary participation if application is in line with procedural and material rules of the CDM

3.CDM EB denies voluntary participation if application is not in compliance with governing rules

4.By applying for Registration PPs implicitly state that they are, and will be in compliance with the governing rules for the duration of the CDM project


Regulatory function of the CDM EB – Sanctioning compliance

The CDM EB 1.reviews the behavior of the PPs; and

2.sanctions the PPs compliance with the rules.

3.Compliance will lead to the issuance of CERs and non-compliance will result in non-issuance


Current and proposed review procedures

Initial adoption (from page 54 to 60): http://unfccc.int/resource/docs/2005/cmp1/eng/08a01.pdf

Latest clarifications to facilitate the interpretation of the procedures for review at registration: http://cdm.unfccc.int/Reference/Guidclarif/reg/reg_guid01_v08.pdf

Latest clarifications to facilitate the interpretation of the procedures for review at issuance: http://cdm.unfccc.int/Reference/Guidclarif/iss/iss_guid01_v05.pdf

PROPOSED REVISION OF THE PROCEDURES (EB52)

Draft procedures for request for registration: http://cdm.unfccc.int/EB/052/eb52annagan4.pdfDraft procedures for review for requests of registration: http://cdm.unfccc.int/EB/052/eb52annagan5.pdf

TOR for the Project Assessment Committee (PAC): http://cdm.unfccc.int/EB/052/eb52annagan6.pdf

Draft procedures for request for issuance: http://cdm.unfccc.int/EB/052/eb52annagan9.pdfDraft procedures for review for requests of issuance: http://cdm.unfccc.int/EB/052/eb52annagan10.pdf

2008 preliminary results presentation – 12 March 2009


The current system in a nutshell

• Registration and issuance decisions by the CDM EB are administrative, vertical decisions within the scheme.

• However, the CDM EB also the majority of the rules on which the decisions are based and acts as a quasi-legislative organ.

• The only review process available to validate these decisions and to a limited extent the rules created is being undertaken by the CDM EB itself.


Criticisms of the current

If the current system would be measured against a national or supranational standard it would not comply with minimal requirements of, i.a., the following general principles:

• Separation of powers• Due process• Transparency• Independent review of decisions• Potential lack of legitimacy of the rule-creating body



The solution – ubi remedium, ibi ius

Agenda sub-item 5 (a): Guidance by CMP

97. In accordance with the CMP requests in paragraphs 42-43 of Decision 2/CMP.5, the Board agreed

to launch a call for public inputs opening on 26 March 2010 and closing on 23 April 2010, invitingviews on procedures for appeals brought by stakeholders directly involved in the design, approval orimplementation of CDM project activities or proposed CDM project activities, in relation to:

(a) Situations where a DOE may not have performed its duties in accordance with rules / requirements of the CMP and/or the Board; and

(b) rulings taken by or under the authority of the Board regarding the rejection or alteration of requests for registration or issuance.

The Board agreed that this call for inputs include views on how procedures for appeals interrelate to revised procedures for registration, issuance and review currently under the Board's consideration in accordance with paragraph 37 of Decision 2/CMP.5.



Thank you

Alexander SaracGeneral Counsel and Associate Director

Tel. +44 (0) 1865 [email protected]

EcoSecurities40/41 Park End Street

OX 1 1 JD OxfordUnited Kingdom

Documents

Side – event of the German Emissions Trading Association (bvek) A new generation of international public law - the introduction of an appeals process to