Independent fund board

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 08/12/2010

1. What does it mean to have an “Independent Board” for a fund under the UNFCCC?

2. Could an Independent Fund Board be under the authority of and accountable to the COP?

3. How does such an Independent Board differ from the Adaptation Fund Board?

Summary:

There is no officially recognised definition of “Independent Board” in the UNFCCC context. It is possible that an Independent Fund Board could be under the authority of and accountable to the COP. Whether it is would depend on the Board’s constituting document, or a decision of the parties creating the Board. An “Independent Board” will only differ from the Adaptation Fund Board to the extent the parties want it to.

Advice:

1. There is no officially recognised definition of “Independent Board” in the UNFCCC context. As a general rule it is any grouping of individuals constituted for a particular purpose. The level of independence of any Board will depend on its constituting document; nature and the accountability mechanisms put in place to determine the relationship between the Board and any other group.

2. It is entirely possible for a Board to be set up under the authority of, and be accountable to, the COP. The Independent Board’s ultimate level of accountability and responsibility will depend on its constituting document (or decision of the parties in this setting). This will form the basis for the Board to act, and define its legal status. It will also set out its rights and responsibilities. Whether any Independent Fund Board would be accountable to the COP would depend on mechanisms built into the constituting document. Presumably, if the COP wanted to ensure some independence for a Board, it would be build mechanisms into its constituting document to ensure its independence, but include checks and balances to provide for some accountability.

3. In the absence of further information it is difficult to judge how an Independent Fund Board would differ from the Adaptation Fund Board (AFB). We note that the Adaptation Fund Board was established by a decision of the parties at the Conference of the Parties in Bali, in December 2007 (decision 1/CMP.3). The AFB is established as the operational entity to supervise and manage the Adaptation Fund, under the authority and guidance of the COP. The Board is fully accountable to the COP, which decides on the overall policies of the Fund. Further, the COP developed rules of procedure for the Board, which the Board is required to follow.

The rules of procedure do require that members of the Fund Board swear to commit to undertake their functions impartially. Moreover, a member is required to disclose a conflict of interest which might be incompatible with the requirements of independence or impartiality expected of a member. This provides for some independence between Board members and the COP, but does not affect or undermine the Board’s accountability to the COP. While it is far from clear whether this was the sort of independence envisaged by the EU, if it is, the independence may not be much of an issue to the NGOs who are happy with the current AFB arrangements.

The level of independence of any independent body will depend entirely on the intentions of the COP when the Board is constituted and how it constitutes it. To ensure that the COP maintains authority over the Independent Board, and that the Independent Board remains accountable to the COP, the document that constitutes the Board would need to include adequate mechanisms to ensure this happens.