General procedures

The general procedural provisions to be followed by both branches deal, in particular, with matters of due process, sources of information, expert advice, public participa-tion, and transparency.

Several provisions are aimed at ensuring due process for the party concerned.⁵⁵ The party concerned is entitled to be represented during the consideration of any ques-tion of implementaques-tion; although it may not be present during the elaboraques-tion (that is, the process of discussion and drafting) and the adoption of a decision, at which points only the members of the Committee and the Secretariat staff may be present.⁵⁶ The party concerned is entitled to all of the information considered by the branch and may submit written comments on both such information and any decision of the branch. Any comment on a final decision submitted, which submission must be within forty-five days of the adoption of the final decision, is to be annexed to the annual report of the Committee to the CMP.⁵⁷ Further provisions related to due

53 Compliance Procedures, section VII.1; Rules of Procedure, rule 19. The Secretariat is to ensure proper notification of the members and alternates of the branches.

54 Compliance Procedures, section VII.

55 Section VIII, paras. 2, 6–9; Rules of Procedure, rules 9, 13 and 22.2.

56 Section VIII.2 and Rules of Procedure, rule 9.2.

57 By the end of 2010, all of Canada, Croatia, and Bulgaria had used this right. Canada challenged an aspect of the EB’s decision not to proceed further. Since the case was closed and there was no legal basis for reo-pening the proceedings, Canada followed the suggestion that its submission be treated as a comment on the decision not to proceed further. Third Annual Report of the Compliance Committee, supra note 39, at para. 30 and Annex V; for the comments by Croatia and Bulgaria, see Fifth Annual Report of the

process concern the handling of information provided by the party concerned; and the use of other languages than English.⁵⁸

In respect of information sources, the branches are to ground their deliberations on information provided by reports from ERTs, by the party concerned, by the party that submitted the question of implementation (if this is what happened), by the Conference of the Parties to the UNFCCC, by the CMP, by the subsidiary bodies, and by the other branch of the Compliance Committee.⁵⁹ Relevant factual and technical information may also be submitted by competent intergovernmental and non-governmental organizations;⁶⁰ however, by the end of 2010, no such organiza-tions had taken this opportunity.

Expert advice may also be sought by the branches.⁶¹ If this option is chosen, the branch must define the questions on which the expert opinion is to be obtained, identify the relevant experts, and establish the procedures to be followed.⁶² Since many of the issues to be addressed by the branches are of a technical nature, such expert advice has proved to be crucial in the operation of the Committee.⁶³

As for transparency, all branch decisions are made public. The same is true for all information which the relevant branch considers, although the branch may decide, either at its own initiative or at the request of the party concerned, to make certain information available only after the conclusion of the proceedings. All decisions, including both preliminary and final decisions, are required to contain a list of spe-cific elements including conclusions and reasons for the decision.⁶⁴ Each member and alternate member has a sworn duty under the Rules of Procedure not to disclose confidential information.⁶⁵ Although ‘confidential information’ is not comprehen-sively defined, it presumably includes information disclosed in confidence in closed meetings of the Committee; information subject to other confidentiality protections that is received upon request of the Committee; and information on discussions of

Compliance Committee, supra note 27, at para. 30 and Annex II, and para. 38 and Annex III, respec-tively.

58 Compliance Procedures, section VIII.6 and 9, and Rules of Procedure, rule 13.

59 Compliance Procedures, section VIII.3.

60 Compliance Procedures, section VIII.4. They should do so in writing after the preliminary examination:

Rules of Procedure, rule 20.

61 Compliance Procedures, section VIII.5.

62 Rules of Procedure, rules 20 and 21.

63 The EB has obtained expert advice in all four of the cases it had addressed by the end of 2010, and the advice given played a significant role in the EB’s consideration of the questions of implementation with respect to Greece, Canada, and Bulgaria. See Final Decision (Party concerned: Greece), Enforcement Branch of the Compliance Committee, Doc. CC-2007-1-8/Greece/EB (2008); Decision not to Proceed Further (Party concerned: Canada), Enforcement Branch of the Compliance Committee, Doc. CC-2008-1-6/Canada/EB (2008); Final Decision (Party concerned: Croatia), Enforcement Branch of the Compli-ance Committee, Doc. CC-2009-1-8/Croatia/EB (2009); Final Decision (Party concerned: Bulgaria), Enforcement Branch of the Compliance Committee, Doc. CC-2010-1-8/Bulgaria/EB (2010).

64 Compliance Procedures, section VIII.6–7; Rules of Procedure, rules 12 and 22.

65 Rules of Procedure, rule 4.2.

a decision in closed meetings (however, voting records will be publicly disclosed in the decision itself).

To enhance public participation, meetings of the plenary and the branches (but not of the bureau) are open to the public, unless decided otherwise for ‘overriding’ rea-sons – but only members and Secretariat officials may be present during the elabora-tion and adopelabora-tion of a decision. Since 2007, the Committee has admitted registered observers – any person may register as an observer⁶⁶ – to attend the open parts of its meetings, has recorded its proceedings, and has made these available through internet access. The word ‘overriding’ has not been defined; as for practice, a vote on a pro-posed decision to hold a plenary meeting in private, where the issue to be addressed was the alleged conflict of interest of an alternate member, did not achieve a quorum and was therefore not adopted.⁶⁷

The use of electronic means of decision-making inevitably results in a somewhat restricted observation of the process by both the party concerned and the general public. Electronic means are used for the transmission, distribution, and storage of documentation, as well as for the elaboration and adoption of decisions.⁶⁸ Only after much internal debate did the Committee agree to allow the use of electronic means for elaborating and taking decisions to facilitate its work between meetings – this being seen as necessary in order to comply with the tight timelines for the al-location of a question of implementation,⁶⁹ the preliminary examination, and the special procedures for the EB addressed below.

Despite there being only limited scope for discussion using this method, electronic means of decision-making had, by 2010, become the usual method used for taking decisions on allocation, preliminary examination, and expert advice. This has served to reinforce the important role of the chairperson and vice-chairperson of each branch in guiding the drafting of proposed decisions to be adopted by electronic means. However, decisions on the substance of questions of implementation have usually been drafted and discussed in face-to-face meetings and not by electronic means. In some cases, decisions elaborated in a meeting have been subsequently adopted through electronic means where there was no quorum for the adoption of the decision at the meeting itself. Such a decision was made in the case of the pre-liminary examination of the submission by South Africa, discussed above, as well as in the case of the final decision on Croatia.⁷⁰

66 Rules of Procedure, rule 9; working arrangements in: ‘Second Annual Report of the Compliance Com-mittee’, supra note 39, at paras 15–17; on the review and the continued application of these arrangements, see Fifth Annual Report of the Compliance Committee, supra note 27, at para. 16.

67 See ‘Report on the Meeting’, Plenary of the Compliance Committee, Seventh meeting, Doc. CC/7/2010/5 (2010), at para. 3; see supra Part 2.

68 Rules of Procedure, rule 11.

69 See also rule 19.1 of the Rules of Procedure.

70 ‘First Annual Report of the Compliance Committee’, supra note 7, at paras 19–25; ‘Report on the Meet-ing’, Enforcement Branch of the Compliance Committee, Eighth meeting, Doc. CC/EB/8/2009/2 (2009), at para. 6.