1. Insurance, bond and guarantees – Work of the Basel Convention Juliette Voinov Kohler, legal and policy advisor Secretariat of the Basel Convention TAIEX Multi-beneficiary workshop on the Transboundary Movement of Hazardous Wastes 9-10 December 2015, Bratislava

2. Overview 1.Relevant provisions of the BC 2.ICC Guidance 3.Other relevant work

3. 1. Relevant provisions of the BC a.Art 6 para 11 BC “Any transboundary movement of hazardous wastes or other wastes shall be covered by insurance, bond or other guarantee as may be required by the State of import or any State of transit which is a party”.

4. 1. Relevant provisions of the BC b. Related provisions Art 8 (Duty to re-import) Art 9 (Illegal traffic) Art 14 (Emergency fund)

5. 1. Relevant provisions of the BC c.Implementation challenges with Art 6 para 11 BC Variations in implementation Variations concern for example -Legal requirements -Scope of application -Beneficiaries -Calculating methods Certain differences are identified as challenges to a wider use of guarantees

6. 2. ICC Guidance a.Mandate COP-12 (Dec-12/7) Builds on ICC work programme (2014-2015) at what time questionnaire on the issue was sent to Parties ICC work programme (2016-2017) Mandate to develop guidance Guidance to be consulted with the EWG on ESM For consideration at COP-13

7. 2. ICC Guidance b.Current status of work Funding from Japan Consultant recruited First draft submitted to ICC members for comments by 9 December 2015 Second draft for ICC-12 consideration (4-6 June 2016) Third draft expected in Fall 2016 (taking into account the outcome of ICC-12 and comments from parties) for consultation with EWG on ESM Final guidance by 30 September 2016 for COP-13 consideration

8. 2. ICC Guidance c.Data collection Background documents ICC report on Art 6 para 11 BC Legal instruments and guidance developed by Parties OECD decisions and guidance Surveys Responses to questionnaires Responses to specific inquires Consultations with EWG on ESM EWG Draft practical manual on insurance and liability Relevant EWG project activities

9. 2. ICC Guidance d.Structure of draft guidance Part I: Background information Part II: Suggestions to improve implementation

10. 2. ICC Guidance e.Identified variations in implementation Designation of obligee / beneficiary Types of guarantees Covered risks Covered amount Covered time period Activation criteria Monitoring

11. 2. ICC Guidance f.Suggested implementation approaches i.Areas where harmonization is not necessarily desirable Types of financial guarantees Activation criteria

12. 2. ICC Guidance f.Suggested implementation approaches ii.Designation of obligee and beneficiary Obligee: Exporter or importer? Beneficiary: CA of state of export or CA of state of import? Overlaps can create situations where exporters need to conclude two different guarantees Suggested approaches: Agreement on a single guarantee Deference to state of import or transit

13. 2. ICC Guidance f.Suggested implementation approaches iii.Covered risks Response costs Cost for safe completion of TBM (including alternate destination or re-import) Cost of transports, treatment or disposal (ESM) Costs of storage or other necessary interim measures Costs of identification, re-labeling, re-packaging and re- loading the waste Liability Separate insurance

14. 2. ICC Guidance f.Suggested implementation approaches iv.Covered amount Suggested Formula (e.g. benchmarked costs) Estimate transport costs Estimate disposal costs (ESM) Estimate storing costs (90 days) Estimate identification, re-labeling, repackaging and re- loading costs Estimate operation costs to stabilize during transit (e.g. rescue operation)

15. 2. ICC Guidance f.Suggested implementation approaches v.Covered time period Conclusion of guarantee At notification? Before commencement of shipment Release of guarantee Upon certification vs. after fixed period of time? Intermediate approach: Fixed time with guarantees

16. 2. ICC Guidance f.Suggested implementation approaches vi.Monitoring Review by CA of exporting State Review by CA of importing State Inclusion in notification/movement documents

17. 3. Other relevant work a.Expert working group (EWG) on ESM Safety and insurance/liability manual Draft manual submitted at EWG-3 Project on hold Pilot project on insurance, bond and guarantee Project approved at EWG-3 Focus on South America (Argentina) Financing guaranteed Next step: Development of SSFA EWG on ESM to be consulted on draft ICC guidance

18. 3. Other relevant work b.BC Protocol on Liability and Compensation Adopted at COP-6 / Not yet entered into force Comprehensive regime based on strict liability Covers damage from TBM (incl. illegal traffic) Does not specifically cover costs for providing ESM of waste

19. THANK YOU!