Making markets work: A review of CDM performance and the need for reform

European Journal of International Law

Volumn 19, Issue 2, 2008, Pages 409-442

  Streck, Charlotte ^a   Lin, Jolene ^b  

^a Climate Focus   (Netherlands)

^b UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 44449110050     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn014     Document Type: Review

References (146)

1. Capoor and Ambrosi, State and Trends of the Carbon Market (2007), available at: http://carbonfinance.org/docs/ Carbon_Trends_2007-_FINAL_-_May_2.pdf (accessed 15 June 2007).
2. The creation of markets to reduce greenhouse gas emissions has itself led to the development of 'carbon finance', which has been described as being broader than the trading of carbon credits because new financial instruments are being developed to facilitate the transfer to a carbon constraint economy.
3. Kingsbury, Krisch, and Stewart, 'The Emergence of Global Administrative Law', 68 Law & Contemporary Problems (2005) 15, at 17. The authors have benefited from the research output of the Global Administrative Law Research Project at New York University School of Law and would like to register an acknowledgement of thanks.
4. See 'Privileges and immunities for individuals serving on constituted bodies under the Kyoto Protocol: Implementation of decision 9/CMP.2. Note by the secretariat', 3rd Session of the Meeting of the Parties to the Kyoto Protocol. 1F3CFCCC/KP/CMP/2007/2, 13 November 2007.
5. The rights to procedural justice and due process of law are guiding constitutional and administrative principles in common as well as civil law systems. The essence of these principles is that the government must respect a person's legal rights when the government deprives a person of life, liberty, or property. The requirement to adhere to due process has been introduced into the US constitution with the 5th and the 14th amendments. It also forms part of the set of constitutional rights of citizens of the countries of the EU. References in community law can be found in Arts 6(1) (fair process) and 13 (right to appeal) of the European Convention on Human Rights (ECHR), as well as The Charter of Fundamental Rights of the European Union, OJ (2000) C 364/1, which establishes in Art. 41 the right to a good administration and in Art. 47 the right to an effective remedy and fair trial.
6. T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993), at 21.
7. Harlow, 'Global Administrative Law: The Quest for Principles and Values', 17 EJIL (2006) 187, at 190
8. Jowell, 'The Rule of Law and its Underlying Values', in J. Jowell and D. Oliver, The Changing Constitution (2007).
9. The right to be heard emanates from the fundamental principle of procedural fairness. This includes the right to be notified of charges and given opportunity to be heard (e.g., Art. 41(II) of the EU Charter of Fundamental Rights (hereinafter 'the EU Charter'), supra note 5, confirms this principle as one of the basic principles governing the interaction between EU institutions and citizens of the Union).
10. The rule against bias (nemo judex in re sua) is one of long standing in the common as well as civil law. The prerequisite of any decision-making system that seeks to lay claim to any degree of fairness is the provision of unbiased tribunals and decision-makers. It can be said that no amount of procedural safeguards (such as the right to legal representation or to cross-examine witnesses) is likely to deliver fairness if the deciding tribunal is, in the first place, biased in the sense of being inherently predisposed against (or for) the individual who is the subject of the decision.
11. For the EU, Art. 253 EC formulates the requirement to state the reasons for any act, decision, directive, or regulation adopted by the Community or Community organs. The requirement to give reasons is also embodied in Art. 41(II) of the EU Charter, supra note 5. Most EU countries possess administrative procedure Acts, which contain the obligation of public authorities to give reasons for their acts (e.g., para. 39 of the German Verwaltungsverfahrensgesetz).
12. See also Subchapter II of the US Federal Administrative Procedure Act.
13. Dyzenhaus, 'The Rule of (Administrative) Law in International Law', 68 Law & Contemporary Problems (2005) 126, at 130
14. See also Le Sueur, 'Courts. Tribuanals, Ombudsmen, ADR: Administrative Justice. Constitutionalism and Informality', in Jowell and Oliver, supra note 5.
15. See Michaelowa and Purohit, 'Additionality Determination of Indian Projects, Can Indian CDM Project Developers Outwit the CDM Executive Board?'. 2007, available at: http://medias.lemonde.fr/mmpub/edt/doc/ 20070608/920594_additionality_determination_of_indian_cdm_projects.pdf.
16. Download press articles from the Guardian (UK) are available at: www.guardian.co.uk/environment/2007/jun/02/energy.business, Le Monde (French) at: www.lemonde.fr/web/article/ 0.1-0-3244,36-920043,0.html,
17. Tagesanzeiger (German) at: Http://tages-anzeiger.ch/dyn/news/print/ausland/758571.html;
18. and the Financial Times In-Depth report on Carbon Trading at: http://www.ft.com/indepth/carbontrading.
19. Also see Press Release by UNFCCC Executive Secretary, 'Confusion threatens to limit potential of key Kyoto Protocol mechanism', available at: www.unfccc.int (accessed on 25 july 2007).
20. Annex I refers to the Annex to the UN Framework Convention on Climate Change and the Kyoto Protocol which lists the countries which agreed to assume binding emission limitation and reduction targets. Such targets are set in Annex B of the Kyoto Protocol (hereinafter 'KP'), 37 ILM (1998) 22, which came into torce on 16 Feb. 2005.
21. See Art 12(2) of Ibid.
22. Werksman,'Unwrapping the Kyoto Surprise', Rev European Community and Int'l Environmental L (1998) 147 at 151.
23. The MLF is the financial mechanism created in 1990 by the London Amendment to assist developing (Art. 5) countries meet the agreed incremental cost of fulfilling the control measures imposed by the Montreal Protocol, 26 ILM (1987) 1541.
24. The additionality requirement may be explained thus: CDM project activities must result in reducing or absorbing (sequestering) GHGs that are 'real and measurable and would not have occurred in the absence of the proposed project activity' (UNFCCC, Report of the Conference of the Parties on its seventh session, Marrakesh, 29 Oct.-10 Nov. 2001, Addendum part two: Action taken by the Conference of the Parties. Vol. II. FCCC/CP/2001/13/Add. 2, at 20). in other words, to quality for credits a project activity must demonstrate that GHG emissions were reduced against the 'baseline scenario', a representation of GHG emissions under normal circumstances.
25. Non-Annex I (developing country) Parties have no obligation to establish and manage registries. This means that, unless they maintain an account in an Annex I registry, non-Annex I country entities do not hold accounts in national registries. CERs of non-Annex I countries are held in the international CDM registry, managed by the EB and administered by the UNFCCC secretariat.
26. UNEP Risø CDM Pipeline, available at: www.cdmpipeline.org/ (accessed 29 Dec. 2007).
27. See, e.g., Art. 2(1)(b) KP.
28. For a detailed review of law-making by COPs see Brunnée, 'COPing with Consent: Law-making under Multilateral Environmental Agreements', 15 Leiden J Int'l L (2002) 1, at 32.
29. The Marrakesh Accords were adopted by the 7th session of the UNFCCC COP held in Marrakesh, Morocco, in Dec. 2001
30. and confirmed by the 1st session of the COP/MOP in Montreal in Dec. 2005; FCCC/KP/2008/8/Add.1 Decision 3/CMP.1 (Modalities and procedures for a clean development mechanism as defined in Article 12 ofthe Kyoto Protocol.
31. Art. 12(4) of KP: 'The clean development mechanism shall be subject to the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Protocol and be supervised by an executive board of the clean development mechanism.' The scope of its role and its powers is set out in Part C of Annex: 'Modalities and procedures for a clean development mechanism,' Decision 3/CMP.1, supra note 22, paras 2-4.
32. Ibid., Annex, para. 5.
33. Stewart, 'U.S. Administrative Law: A Model for Global Administrative Law?', 68 Law & Contemporary Problems (2005) 63, at 91, n. 11
34. Meijer, 'The International Institutions of the Clean Development Mechanism Brought Before National Courts: Limiting Jurisdictional Immunity to Achieve Access to Justice'. 39 NYU J Int'l L and Politics (2007) 877, at 886.
35. The EB's divergence from the Methodologies Panel's (MethPanel) recommendations in approving methodologies is an example of such divergence in interpretations between the EB and its panels. A concrete example is the pending issue of addressing the double counting of emission reductions generated by the use of biofuels. The MethPanel has developed several proposals to address this issue, the last one being rejected at the 30th session of the EB, which took place from 21-23 Mar. 2007. This renewed rejection of potential solutions to the double counting problem is likely to lead to a further indefinite delay in approval of such methodologies: See agenda item 3(b) of the Executive Board of the Clean Development Mechanism Thirteenth Meeting Report, available at: http://cdm.unfccc.int/EB/O3O/eb3Orep.pdf (accessed on 15 June 2007).
36. Pursuant to Decision 3/CMP.1, Annex, supra note 22, at para. 4(a). The EB reports are available at: http://cdm.unfccc.int. The latest report covers the period from end-Nov. 2005 to 21 July 2006 (accessed on 29 May 2007).
37. Pursuant to Decision 3/CMP.1, Annex, supra note 22, Annex, paras 2-4.
38. Ibid., para. 18.
39. See 'General Guidelines for Panels/Working Groups (version 02)'. see http://cdm.unfccc.int/Reference/Procedures/pndlguide.pdf for more information (accessed on 27 July 2007). The panels include the Accreditation Panel and the Methodologies Panel; the Working Groups assist the EB in matters relating to Afforestation and Small Scale Projects respectively. The CDM Registration and issuance Team (RIT) assists the EB to consider the requests for registration of project activities and the issue of CERS respectively that are submitted by DOEs.
40. Netto and Schmidt, 'CDM Project Cycle and the Role of the UNFCCC Secretariat', in D. Freestone and C. Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms (2005), at 175.
41. More information about the UNFCCC Secretariat can be found at http://unfccc.int/secretariat/items/1629.php (accessed on 27 July 2007). It has been suggested that the in-depth review procedure of national communications under the UNFCCC (Arts 5, 7, and 8) gives the Secretariat a dominant position in evaluating and analysing Parties' national climate policies which strengthens the position of the Secretariat: See S. Oberthür and H.E. Ott, The Kyoto Protocol: International Climate Policy for the 21st Century (1999), at 249.
42. The DOE's scope of work is set out in Section E of 'Modalities and Procedures for a clean development mechanism', supra note 22. The criteria that a Project Design Document must meet are set out in Appendix B of Decision 3/CMP.1. supra note 22.
43. Information on the issue of CERs is found in Section J of the Marrakesh Accords. A list of all accredited DOEs can be tound on the CDM website at: http://cdm.unfccc.int/DOE/index.html.
44. To obtain the host country approval for CDM projects, most DNAs require the official Project Design Document (PDD), as well as compliance with local regulation. For Chile, Peru, Argentina, Ecuador, Honduras, Panama, and Korea, meeting these conditions is sufficient to demonstrate that the project contributes to sustainable development in the host country. Other countries have established additional sustainable development criteria that a CDM project has to comply with. Countries which require compliance with sustainable development criteria in addition to compliance with local environmental laws include Cambodia, Indonesia, the Philippines, Thailand, and Vietnam: Ministry of Foreign Affairs of Japan, FEALAC (Forum for East Asia-Latin America Cooperation), Analysis of the Present Situation and Future Prospects of the Clean Development Mechanism (CDM) in the FEALAC Member Countries, Study of EALAC for the 4th Economy and Society Working Group (7-8 June 2006), available at: www.mofa.go.jp/region/latin/fealac/index.html at 32.
45. Point Carbon, Carbon 2008-Post 2012 is Now-, Oslo, 11 March 2008.
46. The market segmentation in 2006 is as follows: Governments - 8%, Funds-34%, Private buyers-58%; K. Røine and H. Hasselknippe (eds).
47. Carbon 2007 - A New Climate for Carbon Trading (2007), at 17, Fig. 3.17). According to this same report, private buyers are dominating the market as more companies see the value of project credits. Most of the governmental buyers are European countries (at 19).
48. See Yandle, 'From Local to Global Commons: Private Property, Common Property, and Hybrid Property Regimes: Grasping tor the Heavens: 3-D Property Rights and the Global Commons', 10 Duke Environmental L & Pol'y Forum (1999) 13
49. Streck and Zhang, 'Implementation of the Clean Development Mechanism in China: Sustainable Development, Benefit Sharing, and Ownership of Certified Emission Reductions', 16 Ybk Int'l Environmental L (2005) 259, at 264.
50. Through the Linking Dir. (Dir. 2004/101/EC, OJ (2004) L 338/18), CERs would be eligible for use in Phase One ofthe EU ETS (2005-2007), while both CDM and JI credits would be eligible for Phase Two (2008-2012).
51. The general rule as stated in Art. 34 of the Vienna Convention on the Law of Threaties (VCLT), 1155 UNTS 331, is '[a] treaty does not create either obligations or rights for a third State without its consent'.
52. The delegation of 'legislative' or rule-making power from the COP/MOP to the EB poses the thorny question of abdication of responsibility on the part of the COP/MOP, which has been given such powers by the Convention and the Protocol. The delegation of decison-making power to constituted bodies and subordinated panels would raises questions with respect to general principles of good governance, such as accountability. While the EB has not delegated any decision-making powers further, it is the role and authority of the EB itself and its accountability towards the COP/ MOP or any legitimized law-makers (i.e., the national governments) which is questionable.
53. When governments and legislators which bind sovereign states through the process of signing and ratifying a legal instrument are put in put place through democratic elections and legitimatized through transparent and democratic processes, treaty law also provides for democratic legitimacy on the international level.
54. Esty, 'Good Governance at the Supranational Scale: Globalizing Administrative Law', 115 Yale LJ (2006)1490, at 1504.
55. The conception that non-state actors are the regulated entities presents an evolution of international regulation away from a state-centric mode and towards a conception of global regulation of market actors, with states serving an intermediate position: Stewart, supra note 25, at 96, n. 11.Other examples can be found in the context of the WTO and the Montreal Protocol.
56. Decision 9/CMP.1 Guidelines for the implementation of Article 6 of the Kyoto Protocol (hereinafter 'Decision 9/CMP.1'), Annex, para. 10
57. Decision 3/CMP.1, supra note 22,
58. Annex, para. 8(e). The EB has adopted rules of procedures that regulate their operations.
59. The procedure is based on CDM Modalities and Procedures, supra note 22,
60. Annex, paras 7 and 8. So far no objection to the candidates proposed by the regional groups has been recorded.
61. Streck, 'The Governance of the Clean Development Mechanism - the Case for Strength and Stability', in D. Freestone and C. Streck (eds), 15(2) Special Issue, Environmental Liability Journal: The Kyoto Protocol - Current Legal Status of Carbon Finance and the Flexible Mechanisms (2007) 91.
62. See also IETA, '2006 State of the CDM, IETA Position on the CDM for COP/ MOP2', available at: www.ieta.org/ieta/www/pages/getfile.php?docID=1931 (accessed on 25 July 2007). For discussion of the environmental integrity of the CDM see Meijer and Werksman, 'CDM-Concepts, Requirements and Project Cycle',in Freestone and Streck (eds), above, at 81.
63. IETA, 'Strengthening the CDM, Position Paper for COP 11 and COP/MoP 1', Position paper to COP12 COP/MOP 2, available at: www.ieta.org/ieta/www/ pages/getfile.php?docID=1132; IETA letter dated 6 Oct. 2006 to the Chain of the Executive Board regarding the communication with the Board and its panels;
64. World Bank, Reforming the Clean Development Mechanism, Background Paper for the Steering Committee Meeting, World Bank Carbon Finance Host Country Committee, available at: http://carbonfinance.org/ Router.cfm?Page=DocLib&CatalogID=5668 (accessed on 10 Aug. 2007)
65. Center for Clean Air Policy, Washington, DC, 'Summary of an Informal Workshop on Streamlining the CDM, COP/MOPI', available at: www.ccap.org/ international/Summary%20of%20Day%201%20&%202%20Discussions.pdf (accessed on 10 Aug. 2007)
66. The following list borrows heavily from Streck, supra note 47.
67. Decision 3/CMP.1, supra note 22, Annex, para. 8(f).
68. A comparison of the list of EB members and the representatives of country DNAs (both listed on the UNFCCC website at: http://cdm.unfccc.int/index.html (accessed on 10 Aug. 2007) reveal the overlaps in responsibility. Reviewing the portfolios of the individuals within their national ministries, it also becomes clear that their responsibilities often cover all aspects of the CDM, including the purchase and sale of CERs on behalf of their respective countries.
69. Meijer and Werksman, supra note 48.
70. Eddy, 'Public Participation in CDM and JI Projects', in D. Freestone and C. Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms (2005), at 71, 79.
71. EB10 Annex 6 to the Second Annual Report of the Executive Board to the Clean Development Mechanism to the Conference of the Parties (2002-2003)/ section IV. number 54-65.
72. Para. 16 of the Annex to Decision 3/CMP.1 on modalities and procedures for a CDM, document FCCC/KP/CMP/2005/8/Add.1.
73. The Board has further complied with its mandate to develop Rules of Procedure and has proposed these Rules which were adopted by the 8th session of the COP (2002) and the 1st session of the COP/MOP (2005). Rule 26 of the Rules and Procedures emphasizes that the rule of transparency applies to all the work of the EB, see Rules of Procedure of the Executive Board of the Clean Development Mechanism available at: http://cdm.unfccc.int/Reference/COPMOP/08a01.pdf#page=31 (accessed on 20 June 2007).
74. Ibid., Rule 27.
75. The newly created 'Review and Issuance Team' has been created without any clear legal basis and, although it is highly influential, there is no international process of selecting and appraising its members, nor are the meetings of the team open the public.
76. Supra note 6, at 29.
77. Lord Hewart CJ in R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256.
78. The UNFCCC secretariat has introduced the practice of counting the 90-dav period not from the moment of submission of the documents but from the moment the secretariat and the RIT consider the documents to be complete. Misspellings or other minor issues can thus lead to significant delays in the registration process.
79. IETA, supra note 48.
80. See e.g., ibid.
81. This point is partly being address by an increasing number of professional UNFCCC secretariat staff. However, currentlv the UNFCCC staff is still new and does not possess the required institutional memory.
82. Decision 27/CMP.1, Innex, Procedures and mechanisms relating to compliance under the Kyoto Protocol, sects IX and X.
83. Meijer, supra note 25, at 925.
84. E.g., Decision 3/CMP.1, supra note 22, Annex, paras 16 and 23.
85. Supra note 3.
86. Meijer, supra note 25. Meijer argues that the review of administrative CDM decisions by national courts should be possible. Assuming that the EB would be protected by judicial immunity, she proposes a lifting of such immunity for any decisions of administrative nature.
87. The authors thank Prof. Michael Bothe for makina the link between the CDM and the targeted sanctions of the UN.
88. Hufbauer and Oegg, 'Targeted Sanctions. A Policy Alternativer?', Paper presented at symposium on 'Sanctions Reform? Evaluating the Economic Weapon in Asia and the World', 23 February 2000, available at: www.petersoninstitute.org/publications/papers/paper.cfm?ResearchID=371 (accessed on 27 July 2007).
89. T. Birsteker and S. Eckert (eds), Strengthening Targeted Sanctions Through Fair and Clear Procedures, White Paper prepared by the Watson Institute Targeted Sanctions Project, Brown University, 30 Mar. 2006, Executive Summary, at 5.
90. Frank, 'UN-Sanktionen gegen Terrorismus und europäische Menschenrechtskonvention', in L. Calfisch et al. (eds), Liber Amicorum Luzius Wildhaber. Human Rights - Strasbourg Views/Droits de l'homme - Regards de Strasbourg (2007), at 237
91. Warbrick, 'The European Response to Terrorism in an Age of Human Rights', 15 EJIL (2004) 989
92. Cameron, 'UN Targeted Sanctions, Legal Safeguards and the ECHR', 72 Nordic J Int'l L (2003) 1
93. Fitzgerald, 'Managing Smart Sanctions Against Terrorism Wisely', 36 New England LR (2002) 957
94. Schmahl, 'Effektiver Rechtsschutz gegen targeted sanctions des UN-Sicherheitsrats?' [2006] Europarecht 566
95. Aust and Naske, Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte?', 61 Zeitschrift für Äussentliches Recht (2006) 587.
96. Human Rights Watch, 'Sanctions Rules Must Protect Due Process', Mar. 2002, available at: http://hrw.org/english/docs/2002/03/04/ global5839.htm.
97. Case T-306/01, Ahmed Ali Yusuf & Al Barakaat International Foundation v. Council and Commission [2005] ECR II-03533, relating to S/RES/1267 (1999)
98. Case T-228/02, Organisation des Modjahedines du people d'Iran v. Council of the European Union [2006] ECR II-04665, relating to S/RES/ 1373 (2001).
99. Council of the European Union, 'Basic Principles on the Use of Restrictive Measures (Sanctions)', 7 June 2004, Doc. No. 10198/1/04 PESC 450 REV 1
100. cf. also Council of the European Union, 'Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy', 2 Dec. 2005, Doc. No. 15114/ 05 PESC 1084 Fin 475.
101. For UN targeted sanctions see supra note 72.
102. International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by GA Res 2200A (XXI) of 16 Dec. 1966; entry into force 23 Mar. 1976.
103. For UN targeted sanctions see van den Herik and Schrijver, 'Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law', in Biersteker and Eckert, supra note 72, Executive Summary, at 8.
104. A/RES/60/1/.
105. S/PRST/2006/28.
106. Res 1617 (2005); 1730 (2006); 1735 (2006).
107. Guidelines of the Security Council Committee Established Pursuant to Res 1267 (1999) Concerning Al-Qaida and the Taliban, adopted on 7 Nov. 2002, as amended; Guidelines of the Committee Established Pursuant to Res 1636 (2005).
108. Biersteker and Eckert, supra note 72, Executive Summary, at 38.
109. Its of. cial website is at: www.wada-ama.org (accessed 10 Aug. 2007).
110. A. Van Vaerenbergh, Regulatory Features and Administrative Law Dimensions of the Olympic Movement's Anti-doping Regime, New York University School of Law, IILJ Working Paper 2005/11, Global Administrative Law Series, at 4.
111. Ibid., at 17.
112. Note by the Secretariat, 'Privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol', FCCC/KP/COP/MOP/2005/6, paras 19 and 27.
113. Van Vaerenbergh, supra note 86, at 18.
114. Ratliff, 'The PCA Environmental Arbitration and Conciliation Rules', 1(1) Transnat'l Dispute Management (Feb. 2004), available at: www.transnational-dispute-management.com/samples/freearticles/ tv1-1-roundup_12htm.
115. FCCC/SBI/2006/21, Privileges and immunities for individuals serving on constituted bodies established under the Kyoto Protocol, supra note 88.
116. IBRD Res 93-10 and IDA Res 93-6, The World Bank Inspection Panel, was adopted by the Bank's Board of Executive Directors on 22 Sept. 1993. Also see the 'About Us' section on the Inspection Panel website at: www.worldbank.org/inspectionpanel (accessed on 10 Aug. 2007).
117. Ibid., para. 2.
118. Ibid., para. 4.
119. Ibid., para. 5.
120. Ibid., para. 6.
121. Ibid., para. 8.
122. Ibid., para. 10.
123. See 'Panel Secretariat' section on the Inspection Panel website, supra note 92.
124. Defined in the Resolution as 'an affected party in the territory of the borrower which is not a single individual (i.e., a community of persons such as an organization, association, society or other grouping of individuals)'.
125. Ibid., para. 12.
126. Bradlow, 'Private Complainants and International Organizations: A Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions', 36 Georgia J Int'l L (2005) 403, at 419.
127. Art. 2 of the European Ombudsman Statute, adopted by Parliament on 9 Mar. 1994, OJ (1994) L 113/15, and amended by its decision of 14 Mar. 2002 deleting Arts 12 and 16, OJ (2002) L 92/13. The European Ombudsman Implementing Provisions were adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004.
128. Art/2(4) of the European Ombudsman Statute, supra note 103.
129. 'How to Complain', available at: www.ombudsman.europa.eu (accessed on 27 June 2007).
130. Art. 3(1) of the European Ombudsman Statute, supra note 103.
131. Ibid., Art. 4(1).
132. Ibid., Art. 4(3).
133. Ibid., Art. 4(4).
134. Ibid., Art. 5(1).
135. Ibid., Art. 6(3).
136. Ibid., Art. 8(4). Further, a copy of this report will be sent to the complainant and the institution concerned.
137. Ibid., Art. 9(1) and (2)
138. See the decisions of the 3rd session of the COP/MOP, among others, available at: http://unfecc.int/files/meetings/cop_13/application/pdf/ cmp_guid_cdm.pdf (accessed on 29 Dec. 2007).
139. The authors appreciate the attempts of the EB and the UNFCCC Secretariat to compile the relevant rules and decisions. This compilation has however led to a rather user-unfriendly search machine on the UNFCCC website which does not lead to significantly improved access to the relevent rules.
140. Decision 3/CMP.1, supra note 22, Annex C.
141. See below for similar rules applying to the members of the World Bank Inspection Panel.
142. Annex 35 to the Report of the 23rd Meeting of the Executive Board, Additional Guidance Related to Registration Fee for Proposed Clean Development Mechanism Project Activities, available at: http://cdm.unfecc.int/EB/023/eb23_repan35.pdf.
143. See CDM statistics, available at: http://cdm.unfecc.int/Statistics/ index.html (accessed on 19 July 2007).
144. However, the broad mandate may also be seen as a low threshold so that the Ombudsman is highly accessible to the public. An 'over-inclusive' mandate also prevents the accidental exclusion of otherwise valid allegations of maladministration.
145. Biersteker and Eckert, supra note 72, at 3.
146. Art. 9(2) of tne European Ombudsman Statute, supra note 105.