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Conflict Management Committee Rules

The Publisher has kindly invited me to share a NEW tool for managing conflict in sustainable  development projects. “What’s different” is that the OHADAC Conflict Management Committee  Rules ( see https://www.carohadac.org/services/conflict-management-committee.html?langue=en)  provide for Stakeholder engagement with Owners and Contractors from a project’s inception to its’  conclusion. 

The absence of stakeholder engagement has brought more than a few investment projects to  sudden and expensive halts. Whether it was hydroelectric power transmission lines in North  America, a wind farm project in Norway, or an extraction project in Peru, the failure of investors and  states to work with affected stakeholder communities early and often has doomed or delayed  projects that are, at least arguably, in the economic interests of those self-same communities.  Critics of the current mega projects approach argue that a combination of self-serving, barely  understandable (to Stakeholders) impact statements, short timelines for “discussion” and limited  follow-up, remove a projects’ “social license to operate”. The OHADAC Conflict Management  Committee Rules (“CMC Rules”) provide a different path. 

The CMC Rules work with a variant of the standing dispute board, with the CMC managing both  traditional owner/contractor issues as well as stakeholder grievances. The project owner and  contractor each select a member of the Committee, with the CARO Centre, administrator of the  CMC Rules, appointing the third, presiding member of the Committee. CARO’s remit differs from the  standard, as it is charged with balancing the need for engineering, project management and ESG  expertise on the CMC. CARO intends to develop a roster of experienced neutrals with those skills in  mind. The CARO / OHADAC Center supported the design and drafting of the CMC Rules and hired Elise Groulx to lead the effort to build this framework; this would help  better explain the name (CARO CMC RULES).  Even though the CARO is based in Guadeloupe, in the Caribbean, the application and implementation of the CMC Rules are not limited to this jurisdiction and the Caribbean and can be used anywhere in the world. The type of conflicts that are targeted here include disputes on bad work practices such as poor working conditions, lack of real opportunities of advancement, sexual violence and harassment, severe income inequalities, security issues, conflict over access to land and mineral resources, non-compliance with resettlement programmes previously agreed upon, air, water and land pollution as well as toxic wastes.

The CMC Rules provide that the CMC should be in place before project commencement, and should  be provided with any impact statements and other information necessary to assist the CMC in fulfilling its’ mission. The first order of business for the CMC is to convene one or more  organisational meetings. What differs from the traditional dispute board model is the attention given to stakeholders, as the organisational meeting agenda includes the development of a  stakeholder engagement plan. That plan provides a way forward for both contracting parties and  stakeholders, with commitments monitored by the CMC, and a grievance process provided for.  

Whether presented with an issue between the Owner and Contractor, or one involving Stakeholders,  the CMC’s procedural approach is similar. Active dialogue comes first, and can continue right up to  the time when, as its’ last means of motivating settlement, the CMC may issue written, non-binding recommendations. Where settlement doesn’t occur after a CMC recommendation is issued, the CMC  Rules provide for mediation as a last resort. 

The drafters believe that the OHADAC Conflict Management Committee Rules can be effectively utilised in a wide variety of project settings, including energy and renewable energy (wind, solar,  hydro-electric), infrastructure, extraction, deforestation, and mega-construction projects such as  sports facilities.

                        author

Elise Groulx

Elise Groulx Diggs, ESQ, Ad.E., LLM, international human rights lawyer and mediator based in Washington, D.C. She is licensed in several jurisdictions, and, is with 9 Bedford Row Chambers in London, UK. Elise was recently given the title of Elite Global Market Leader by the Global Guides Chambers and Partners… MORE >

                        author

Mark Appel

Mark Appel has nearly 40 years of global arbitration and mediation experience, having served in both executive and senior executive positions at the American Arbitration Association (AAA) and International Centre for Dispute Resolution (ICDR), leaving ICDR/AAA as Senior Vice President, EMEA in December of 2015. While serving as a AAA… MORE >

                        author

Eve Tessera

Eve Tessera is a French lawyer, and she practices in France and Italy. She has developed expertise for more than fifteen years in the field of human rights and since 2015 in the field of business and human rights, dispute resolution, mediation, and access to remedy. Her practice focused on… MORE >

                        author

Wolf von Kumberg

Wolf von Kumberg brings over 30 years of international legal and business experience to the practise of ADR. He served as Legal Director and Assistant General Counsel of Northrop Grumman Corporation and Litton Industries Inc. Wolf is a certified CEDR mediator and a Fellow and former Chair of the Management Board of… MORE >

                        author

Marie-Camille Pitton

Dr. Marie-Camille Pitton is an attorney registered in France and in New York, with over a decade of experience in the field of International arbitration. Since September 2021, she is acting as Secretary-General of the “CARO Centre”, which is a Centre for arbitration and mediation located in Guadeloupe (French West… MORE >

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