Wednesday, February 10, 2010

Objection m'lord! - Three new lawyers appointed by MSC to adjudicate objections to certification

MSC has just announced the appointment of three new lawyers as "Independent Adjudicators" to deal with the increasing number of objections being received to the eco-certification of controversial fisheries as sustainable.  So far NO objection has resulted in an assessment of sustainability under the MSC process being overturned, and a number (most?) have been dismissed out of hand by the adjudicator as having insufficient grounds to proceed further.

The MSC website states that the the Independent Adjudicator will assess the objection to determine whether it has ‘a reasonable prospect of success'. This depends primarily on whether:
a. The objection identifies a serious procedural or other irregularity in the assessment process that made a material difference to the fairness of the assessment;
b. The score given for one or more performance indicators cannot be satisfactorily justified by the certifier due to factual errors, omission of relevant information or arbitrariness;
c. Additional information has been identified that is relevant to the assessment by the date of Determination and was not available or known to the certifier.

Most of the objections relate to shortcomings in the assignment of passing scores under the three MSC principles. These objections tend to be technical in nature related to fish population dynamics, stock assessment and the sustainability of management strategies. It is difficult to see how lawyers with no training in these areas could evaluate whether an objection should proceed.

If the objection is allowed to proceed, the certifier is given the opportunity to address the objection and then the adjudicator consults with the objector, the fishery and the certifier in order to determine whether the certifier has adequately addressed the issues raised in the objection.  If no resolution is achieved through consultation, the adjudicator will notify all parties that the matter will proceed to adjudication and convene an oral hearing of the objection.

If the objector(s) decides to proceed to oral hearing, they have to undertake to pay costs currently limited to £15,000.  During the oral hearing the objector(s), the certifier and the fishery present their respective cases.  The adjudicator may seek external expert advice on technical matters relating to the issues raised in the objection. (Hmmmm.....this part worries me a lot....the adjudicator can pick the technical would the adjudicator know who to pick and whether the advice was independent, expert and objective?)

Following the hearing, the adjudicator issues a written decision either confirming the original Determination by the certifier or remanding the Determination by the certifier. If the Determination is remanded the certifier must submit a written response to the MSC, the fishery and the objector.  The adjudicator then either accepts the response as an adequate resolution of the matters raised in the remand and approves the original (or amended Determination) or upholds the objection.  The certifier then amends the Final Report and Determination in the light of the findings and this forms the basis for the Public Certification Report.

Link to news item:

1 comment:

  1. Does that mean there are now 4 lawyers on the payroll of MSC acting as Independent Adjudictors over controversial certifications (3 new ones plus Michael Lodge)?