An appellate body for the clean development mechanism: A due process requirement

With thousands of projects in the pipeline and about 1.5 billion carbon credits to be generated by 2012, the Clean Development Mechanism (CDM) has become a socio-economic order of scale that involves international institutions, governments and private entities worldwide. The concept of mobilizing investment in low carbon technology in developing countries in exchange for cost-efficient Certified Emissions Reductions (CERs) has been embraced by the private and public sector in developing and industrialized countries alike. While the administrative process is struggling to satisfy the demand of those participating in the system, the CDM lacks basic due process safeguards. Exposed to decisions affecting property positions and the freedom to exercise profession, non-state entities do not have any recourse to a review or appeals mechanisms under the CDM. The need to establish such a mechanism has been recognized by academics as well as parties to the Kyoto Protocol, however, is it still waiting to be translated into practice. This article explores the architecture of an appeal system that would fit into the structure and design of the CDM. On the basis of both core due process requirements of contemporary transnational law and the CDM’s functional-economic needs, we will look at what can be established within the existing framework of the Kyoto Protocol and the Marrakesh Accords.

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