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An Appeals Process for the Kyoto Protocol’s Clean Development Mechanism

Ludger Giesberts, Alexander Sarac


Being able to challenge a decision taken by an administrative body, regulatory authority, or junior court is a concept with which most individuals and corporate entities will be instinctively familiar. It is a principle which lies at the heart of the majority of developed legal systems around the world. However, the commercial stakeholders operating within the CDM are an exception; for them there is no appeal from the decisions of the CDM Executive Board. Although understandable, given the genesis of the CDM arrangements as a supra-national creature of stature as opposed to a domestic body, the reality is that the CDM is a forum with a direct interface with private (non-state) actors and their interests. This absence of recognition has caused significant concern and, in the view of some, is symptomatic of an institutional approach which threatens to undermine the CDM. This article makes a case for introducing an appeals process in the context of both the CDM specific debate and in the wider setting of the principles of rule of law and the separation of powers. Against this background, the article evaluates some key elements which a CDM appeals framework might embody and explains some of the options available to the CDM institutions, should they take steps to implement a new framework.


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