Monthly Archives

June 2012

UN_fails_to_protest

UN fails to protect whistleblowers: the importance for International Civil Servants of protection by independent legal counsel.

By | Derecho Administrativo, Disputas Laborales, Funcionarios Públicos, News | No Comments

UN, NEW YORK

The United Nations Dispute Tribunal has found the international organisation’s mechanisms for dealing with whistleblowers to be so “fundamentally flawed” that they fail to protect the basic rights of its employees.  In its ruling in the case of Wasserstrom (judgment to be published), the Tribunal held that the UN Ethics Office failed to protect the applicant against reprisals from his bosses.  James Wasserstrom, an American diplomat, was sacked and then detained by UN Police, who proceeded to ransack his flat, search his car and post his picture on a wanted poster after he expressed suspicions in 2007 about corruption in senior ranks of the UN Mission in Kosovo.

The clear lack of protection for UN staff members encapsulated in this case is confirmed by the statistics.  The Guardian (27th June 2012) cites statistical analysis by the Washington based Government Accountability Project (GAP), which found that out of 297 cases in which whilstleblowers complained of retaliation, the Ethics Office fully sided with the complainant once in six years.  Statements made by GAP confirm the importance for international civil servants of seeking independent legal advice and protection when they find themselves in the position of whilstleblower.  Bea Edwards, GAP Executive Director remarked:

“Like any internal office in an international institution, it is always subjected to huge pressures from above.”  She continued, “It is very difficult for an official employed by the institution to be impartial”.

It is a view which is confirmed by the experience of the team at Bretton Woods Law: the rights of, and the protections afforded to, individuals working within international organisations are all too often subjugated by realpolitik.

Indeed, the attitude of those within the UN towards whilstleblowers was succinctly summed-up by Wasserstrom who remarked:

“I was told at some point in the whole process that the UN didn’t want a ‘culture of snitches’.  What has grown up instead is a culture completely insulated from reality.  It’s a culture of impunity.”

As well as raising concerns about staff exposure to fundamental failings in the UN system, the case is also of assistance to those seeking redress as it adds validity to the approach of directing such grievances to the Secretary General, as the office-holder with ultimate responsibility for the Ethics Office.

If you have concerns about whilstleblowing, contact Bretton Woods Law for impartial confidential advice.

multilateral development banks

World Bank Sanctions Board takes steps to improve transparency

By | Development Banks, International, Multilateral Development Banks, News, Sanctions, Sanctions Board, World Bank | No Comments

In an effort to improve transparency, the World Bank recently took the step of publishing the judgments of its Sanctions Board online

The decision to publish judgments is a positive one in several regards. Firstly, it enables companies to learn of the type of behaviour that can be construed as falling within the provisions prohibiting fraudulent, corrupt or collusive practices arising during the bidding process or the execution of a Bank-financed contract. Secondly, the sanctions process and reasoning behind rulings is made public, permitting parties to gain some insight into what to expect if they are asked to respond to an accusation, as well as the range of penalties such offences attract.

The publication of decisions further ensures that the Bank is compliant with its obligations under international public law. The requirement to publish judgments in a suit at law is specifically referred to in Article 14 of the International Covenant on Civil and Political Rights 1966, to name but one treaty ratified for the protection of human rights, but also falls within the wider fundamental principle of access to justice. Although any World Bank sanction is purely administrative, the Sanctions Board is an organ of an international organisation (itself the product of an international treaty), with a quasi-judicial function. It fulfils the role of upholding the internal laws of the Bank and the contractual obligations incumbent upon participants in the bidding process not to indulge in sanctionable practices. The Sanctions Board is therefore regulated not only by its internal laws but also the fundamental general principles of international law.

This is a development which is certainly to be welcomed and it is hoped that the Sanctions Board will, in time, publish all of its previous decisions as well as those handed down after the change in policy.

If you are concerned that you or your company may have committed a sanctionable practice Bretton Woods Law can investigate the matter on your behalf, advise you in confidence whether you have a defence, such as bona fide mistake or “rogue employee,” and suggest how best to proceed. To contact your nearest office please click here.

Fraud

Square peg in a round hole – lawyer or accountant?

By | Corrupción, News | No Comments

Question: When companies realise they have a corruption and/or compliance issue – who should they call?

Answer: The person who can serve them best.

Admittedly a rather simplistic answer to a more complex question, but in truth the reality is that simple. These two professions obviously have advantages specific to their skill set, and the best solution is to identify the exact nature of your compliance and corruption problem and then hire the appropriate professionals. Obviously depending on the particular nature of the case, it could be wise to actually employ both, but ensure each is approaching the problem from the angle that best suits their skills.

So why a lawyer over an accountant? Lawyers are obviously trained to understand and interpret the law and to evaluate evidence; all of which are essential skills when dealing with accusations from, for example, the World Bank that a company or its employees have engaged in fraudulent or corrupt practices on Bank financed contracts.  But what truly sets lawyers apart from other professionals, such as accountants or former law enforcement officers, is that Legal Professional Privilege (LPP) attaches to communications between them and their clients.  LPP means that communications between a client and his lawyer in respect of giving or receiving legal advice cannot be disclosed by the lawyer in the absence of the client’s permission; such communications are in general sacrosanct.  In contrast, communications between a client and his accountant or for that matter any professional other than a lawyer are not privileged and may result in the non-lawyer having to disclose or report to others what he finds.

The benefits of LPP are multi-fold, but primarily this privilege engenders free-flowing communication between all parties involved, which helps speed up resolution and ensures confidentiality. This ability to have honest and open discussions should not be under-valued, as it is vital to a company’s future success, as it fast-tracks problem solving and putting the appropriate procedures in place to limit any further corruption within the company.

Accountants and former law enforcement officers are of course vital resources at times, they are highly skilled at flagging up suspicious transactions, accounts and offices, and can also assist in improving a company’s compliance programme. Yet the ability to talk freely is probably the strongest tool a company has for uncovering and fixing any corruption issues they might have, and without it the consequences could prove to be a lot more serious.

In short, when faced with corruption and compliance issues emanating from the multilateral development banks, such as the World Bank Group, go to a lawyer who specialises in the relevant field, such as those found within Bretton Woods Law.