The AIIB Under International Law
The AIIB is an international organization established by the AIIB Articles of Agreement (entered into force December 25, 2015), a multilateral treaty, the Parties to which comprise the Membership of the Bank. Accordingly, the AIIB is both constituted, and governed, by public international law, the sources of which include applicable international conventions, customary international law, general principles of law and subsidiary means for the determination of rules of law.
Notwithstanding its international legal personality independent of that of its Members, the AIIB, unlike States, does not possess general competence. In other words, it may only exercise those powers expressly or impliedly bestowed upon it by the Articles of Agreement. In the furtherance of the AIIB’s mandate, internal legislation is issued by the governance organs of the AIIB, deriving its effect from the Articles of Agreement. The resulting organization and effect of such legislation is established by the AIIB’s Internal Legal Framework.
Internal Legal Framework
The AIIB’s Internal Legal Framework legally and logically arises from the Articles of Agreement and the roles and competence attributed to the Board of Governors, the Board of Directors and the President. It responds to the authority of the Board of Governors to adopt rules and regulations, and the power of the Board of Directors to establish Policies and adopt the Staff Regulations. It is also established in accordance with the generally recognised principles of international administrative law which derive from public international law which governs the AIIB.
Together, this forms a governance hierarchy, ordering the Board of Governors highest, with the Board of Directors subject to the Board of Governors, and in turn the Board of Directors may direct the President. However, the Articles of Agreement specify that the President is, independently of both Governors and Directors, the chief of staff and legal representative of the AIIB. As such, the President may add to the Policies and Staff Regulations issued by the Board, but not detract from them or alter them.
Therefore, within the AIIB, the Board of Governors adopts the Codes of Conduct for Bank Personnel and Board Officials, the Board of Directors adopts all Policies as well as the Staff Regulations. The President adopts Directives and also the Staff Rules. Directives may implement Policies, but they may sometimes be standalone initiatives of the President. Directives and Staff Rules may be complemented by Administrative Guidance issued under the delegated authority of the President.
In accordance with Article 30(2) of the Articles of Agreement, the Staff Regulations adopted by the Board of Directors set forth the fundamental conditions of service and the basic rights, duties and obligations of AIIB and its staff. These establish the broad policies in accordance with which the President shall organize and manage AIIB staff.
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The Staff Rules are adopted by the President and prescribe the legal employment rights of AIIB staff. The Staff Rules, together with the Staff Regulations, form the essential employment law of the AIIB. This is complemented by individual contractual provisions as well as application of the generally recognized principles of international administrative law.
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Directives are binding instructions issued by the President to AIIB staff. They may also serve to delegate authority and attribute responsibilities. Directives may implement a Policy adopted by the Board of Directors are be standalone. They are one of the ways in which the President, as chief of staff, ensures the staff of the AIIB work together in a coordinated, efficient, confident way that leads to high-performance and institutional success. Some key points:
- Directives are issued by the President (following deliberation by the Executive Committee).
- Directives are binding rules, enabling provisions and delegations of authority and responsibility.
- Staff Members who disregard a Directive are disregarding the President’s authority as chief of staff and so will likely be acting contrary to the terms of the Code of Conduct for Bank Personnel.
- For these reasons, the content of Directives is intended to be precise, specify what is to be done and by whom, and provide no more binding rules than are strictly necessary.
Directives and Staff Rules are usually supported by Administrative Guidance (AG). AG may contain written administrative practices, forms and details, which AIIB staff should follow because it is essential for superior performance. AG is issued by Vice Presidents and other Heads of Department reporting directly to the President. AG can be updated and changed as often as needed. AG cannot, however, revise, amend or contradict any Policy, Staff Regulation, Directive or Staff Rule. In order to ensure the functional integrity of the AIIB, AG is not made public.
AIIB 2018 Law Lecture
The AIIB 2018 Law Lecture will be given by the distinguished international jurist, Professor Georg Nolte, Chair of the United Nations International Law Commission (69th session, 2017/2018).
AIIB 2018 Legal Conference
This year’s conference theme is "International Organizations and the Promotion of Effective Dispute Resolution". As legal entities and global actors, international organizations are sustained by the rule of law, in place of the hinterland of states, and the effectiveness of international organizations is aligned with the efficient interaction of the laws which enable them to exist and to act. The lawful effective resolution of disputes is therefore the central concern to all international organizations.
As with last years’ inaugural AIIB Legal Conference, attendees will include senior lawyers from other international organizations along with senior academics, arbitration and other practitioners as well as AIIB Senior Management.
Inaugural Meeting of Chief Legal Officers of Asia-based IFIs
The first meeting of Chief Legal Officers (CLOs) of Asia-based IFIs was held on Oct. 20, 2017 at the AIIB Headquarters. Participants included Christopher Stephens, General Counsel of the Asian Development Bank; Gerard Sanders, General Counsel of the Asian Infrastructure Investment Bank; Gene Soon Park, General Counsel of the Credit Guarantee & Investment Facility; Olga Glukhova, Managing Director (Legal) of the Eurasian Development Bank; Raul Herrera, Interim General Counsel of the Green Climate Fund and Nikolay Chernenkiy, Head of Legal of the International Investment Bank. Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and Legal Counsel, joined the Plenary Session as Special Guest. Other senior lawyers from represented IFIs also participated in and contributed to the discussions.
During the meeting, the CLOs introduced the legal development at their institutions and discussed the legal challenges they faced and the solutions they produced during 2016/2017. The event was organized as follows: Plenary Session I: Introductions/Presentations; Plenary Session II: Governance; Breakout Session A: Treasury & Investment Operations; Breakout Session B: Institutional Matters; Closed Session for CLOs and Open Session for All.
Inaugural AIIB Law Lecture
Attendees at the AIIB Legal Conference were also able to hear the inaugural AIIB Law Lecture on Oct. 19, 2017 at AIIB Headquarters, given by Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and Legal Counsel. The title of the Under-Secretary-General’s lecture was "The Necessity of Cooperation between International Organizations".
Gathering of General Counsel
Some 23 general counsel and other chief legal officers of international organizations participated in the 2017 AIIB Legal Week. A closed-session meeting of these participants was held. The purpose was to facilitate networking and to share, on a confidential basis, views on legal and other issues relevant to many organizations.
AIIB 2017 Legal Conference
The 2017 AIIB Legal Conference theme was Good Governance and Modern International Financial Institutions. Four panels were convened, chaired by senior lawyers of the AIIB’s Office of the General Counsel, on the topics of "The Governance Role of Multilateral Shareholders", "Institutional Design and Effective Governance", "External Dimensions and Governance Mandate" and "Governance and the Rule of Administrative Law". The Conference concluded with a plenary discussion, chaired by the AIIB's General Counsel, and closing remarks by the President.
The 2017 AIIB Legal Conference speakers were drawn from Academia, International Financial Institutions and Practitioners. From Academia: Yifeng Chen, Peking University Law School; Catherine Weaver, University of Texas; Ngaire Woods, Dean of the Blavatnik School of Government, University of Oxford; and Dan Sarooshi, Essex Court Chambers and University of Oxford. From International Financial Institutions: Marie-Anne Birken, General Counsel, EBRD; Pascale Helene Dubois, Vice President for Integrity, World Bank Group; Yan Liu, Assistant General Counsel, IMF; and Rutger de Witt Wijnen, General Counsel, Global Fund. As well as other Practitioners: Whitney Debevoise, Arnold and Porter Kaye Scholer LLP and former World Bank Group Executive Director; Natalie Lichtenstein, inaugural General Counsel, AIIB; Stilpon Nestor, former Head of Corporate Affairs Division, OECD; and Joan Powers, former Assistant General Counsel, IMF.
2018 AIIB Yearbook of International Law
This first edition of the AIIB Yearbook of International Law (AYIL) examines the theme of ‘Good Governance and Modern International Financial Institutions’ (IFIs). Drawing upon the dialogue begun at the 2017 AIIB Legal Conference and expertise from other IFIs, international law practitioners and eminent academics, this edition of AYIL is divided into three parts to reflect a series of overarching themes. Firstly, the role of the membership of IFIs as expressed through their executive governance organs, including the benchmark of private financial institution management, the influence of gender diversity, and the particularly essential governance role of an IFI’s leading shareholder. Second, the legal basis of governance of IFIs, utilizing the example of the rule of law at the IMF, a comparative constitutional analysis of the AIIB and the accountability ensured by international administrative tribunals. Third, the interaction around governance between IFIs and external stakeholders, with case studies afforded by the public information policies, implementation of international labor standards, and anti-corruption enforcement procedures of IFIs.