Monthly Archives

April 2013

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The Application of Human Rights to International Organisations: Do Employees of International Organisations Enjoy the Right to a Fair Hearing of their Employment Disputes?

By | Centre of Excellence, Civil Servants, Human Rights, IAL, International Administrative Law, News | No Comments

International organisations are products of international law, as they are invariably created by means of multilateral treaties.  It is therefore not surprising that the International Court of Justice (“ICJ” or “World Court”) has made it quite clear on several occasions that international organisations “are bound by any obligations incumbent upon them under general rules of international law” (Advisory Opinion on the Interpretation of the Agreement of March 25th, 1951 between WHO and Egypt [1980] I.C.J. Reps at 89-90.  See also the Reparation for Injuries Case [1949] I.C.J. Reps 174 at 179: an international organisation is “a subject of international law and capable of possessing international rights and duties”).

It is now generally accepted that international organisations, as international persons, are bound by the customary rules of international law, including the customary aspects of international human rights law.  By way of example, Sands and Klein, editing Bowett’s Law of International Institutions, take the view at page 456 that:

“notwithstanding the fact that an international organisation is not a party to, say, a human rights treaty …if the rule contained in an agreement is reflected in customary international law then it can, as such, bind an international organisation.  It has been suggested, for example, that the World Bank is not subject to general international norms for the protection of fundamental human rights.  In our view that conclusion is without merit, on legal or policy grounds.”

The right to a fair and, indeed, a public hearing by an independent and impartial tribunal in the determination of rights and obligations is now undoubtedly a general rule of international law; it is a ‘fundamental human right’ that finds its origins in article 10 of the Universal Declaration of Human Rights (“the Declaration”).  Building upon the Declaration, which was proclaimed by the General Assembly of the United Nations on 10th December 1948, the states of Europe sought in 1950 to enforce certain Declaration rights by agreeing the European Convention on Human Rights (“ECHR”).  Article 6(1) of the ECHR provides that in the determination of civil rights and obligations “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The geographical limitation of the ECHR was to a certain extent addressed and remedied by the United Nations opening for state signature on 19th December 1966 the International Covenant on Civil and Political Rights (“ICCPR”), which came into force on 23rd March 1976.  In conformity with article 10 of the Declaration and article 6 of the ECHR, article 14(1) of the ICCPR states that in the “determination … of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  Similar provisions can be found in other international human rights treaties, such as article 8 of the 1969 American Convention on Human Rights and articles 10 and 20 of the 2012 ASEAN Human Rights Declaration.

Most, if not all international organisations enjoy as a matter of law some form of immunity from legal suit in their respective member states.  This means that international civil servants, as the employees of international organisations, are prevented from pursing employment related complaints in national employment courts and tribunals.  In order to maintain their immunity from suit, international organisations are thus obliged to provide their employees with a forum in which they can litigate their disputes and, as such, international organisations have over the years developed and implemented various forms of internal justice mechanisms.  But merely providing an international civil servant with a mechanism by which his or her case can be heard is insufficient, as international law, as is clearly demonstrated above, requires that the hearing must be public and above all fair, which means that the mechanism must offer all the guarantees inherent in the notion of due process.  The consequences for an international organisation of failing to provide for a fair internal system of justice is that it risks losing its immunity and therefore risks being sued successfully in national courts.  In Waite and Kennedy [1999] 116 ILR 121, the European Court of Human Rights (“ECtHR”), dealing with a case concerning the European Space Agency, made plain that “a material factor in determining whether granting […] immunity from […] jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the [ECHR].”

The right to the enjoyment and protection of human rights is not lost merely because an individual decides to work for an international organisation.  Human rights ‘black-holes’ do not exist and they most certainly do not exist within organisations created and maintained by states.  So, in short, the answer to the question is yes, international civil servants, as the employees of international organisations, have the right to have their employment complaints heard and heard fairly.

International Administrative Law

Bretton Woods Law opens new office in Manila

By | Administrative Law, Civil Servants, Employment Disputes, IAL, International Administrative Law, News | No Comments

Bretton Woods Law is pleased to announce they now have an office in the Philippines capital – Manila.

Due to the ever-growing number of international civil servants based in the Philippines that are instructing Bretton Woods Law lawyers to help them with their employment disputes with the international organisations for which they work, it has become clear that in order to offer them the high level of service available to all of our clients, Bretton Woods Law should have a representational office in Manila.

 

Manila is a natural choice for Bretton Woods Law due to the large number of international organisations that are based there, including:

If you are an International Civil Servant based in Manila and would like to discuss an employment dispute you might have, why not contact Bretton Woods Law at

L29 Joy Nostalg Centre
17 ADB Avenue
Ortigas Center
Pasig City
Manila, 1600

Email: enquiries@brettonwoodslaw.com
Telephone:
+63 2 7988171 (effective as of 17 April 2013)
Skype:
brettonwoodslaw

Bretton Woods Law lawyers are experts in International Administrative Law which is the employment law of the international organisations.

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Second Geneva International Administrative Law Seminar Focuses on the Fear of Retaliation

By | Centre of Excellence, Civil Servants, Employment Disputes, International Administrative Law, News | No Comments

Bretton Woods Law’s second International Administrative Law seminar took place at the Inter-Continental Hotel in Geneva on Wednesday 27th April and, as ever, one topic on a full agenda really resonated with the attendees – the fear of retaliation.

It is apparent from seminar attendees that many international civil servants are reticent to file a case against their employers, as they are scared that their international organisation will engage in reprisal and retribution.

Bretton Woods Law stated that the best way to combat retaliation was to construct an anti-retaliation policy that contains a reverse burden of proof, which means that if an international civil servant files a case within the internal justice system operated by his or her employer and is then allegedly retaliated against, it is up to the international organisation, as the employer, to prove on a balance of probabilities that it has not engaged in such a practice.

Bretton Woods Law has the expertise and experience to draft such anti-retaliation policies, as well as all other related policies, such as whistleblower protection mechanisms, and have done so for a number of international organisations.  To discuss your own particular anti-retaliation requirements or any other international administrative law matter, contact your nearest Bretton Woods Law office.

For a detailed list of all the topics discussed at the second Geneva International Administrative Law seminar, please click here.

If you have been the victim of retaliation by an international organisation or any other form of unfair treatment, why not apply to join the International Administrative Law Centre of Excellence, a ‘think-tank’ designed to assist in the global development and improvement of International Administrative Law. The Centre of Excellence provides amongst other things,  a neutral forum for discussion and debate for those individuals interested in developing International Administrative Law.

Voluntary Disclosure Programmes

By | Bribery, Corruption, Cross debarment, Multilateral Development Banks, News, Voluntary Disclosure Programme | No Comments

If you are a company that is seeking to escape the downward spiral of paying bribes or engaging in fraud on projects financed by the multilateral development banks (“MDBs” or “IFIs”), such as the World Bank or the Asian Development Bank, then entry into a voluntary disclosure programme (“VDP”) might well be the answer.

VDPs are often used by enforcement agencies around the world in order to gather intelligence to aid in the global fight against corruption and fraud.  Companies, individuals and other entities who are or who have been paying bribes with the intention of inter alia influencing the award of contracts are encourage by the terms and conditions of the programme to come forward and self-report their respective wrongdoings.  The incentive for self-reporting under an established VDP is that the organisation that operates the programme will not normally sanction the participant for disclosed misconduct and will keep the identity of the participant confidential.  The benefit to the organisation is self-evident, for it will discover information about corruption and fraud on projects that it is connected with from the participant that it might otherwise have been unaware of.  Although the participant will not face sanction for its disclosures, the information that it provides will assist the organisation in pursuing cases against other bribe payers, bribe recipients and fraudsters.

Of the five major MDBs (i.e., the Asian Development Bank (“ADB”), the African Development Bank (“AfDB”), the European Bank for Reconstruction and Development (“EBRD”), the Inter American Development Bank (“IADB”) and the World Bank Group), only the World Bank Group operates a fully functioning, transparent and well established VDP; although the other MDBs, and most notably the ADB, have systems in place that encourage and reward self-reporting.  The World Bank Group launched its VDP in 2006 and its  accompanying Guidelines for Participants.

In order to enter the World Bank’s VDP, a participant must not be under active investigation by the Bank’s Integrity Vice Presidency (“INT”) and it must agree to:

  •  co-operate fully with the World Bank;
  • desist from any further engagement in sanctionable practices on World Bank financed projects, such as corruption, fraud, collusion or coercion;
  • investigate at its expense all World Bank funded contracts in which it has participated in the past five years and to disclose the results of those investigations to INT; and
  • implement at its expense a robust internal compliance programme that meets the requirements of the Bank’s Integrity Compliance Guidelines and to subject that programme to monitoring for a period of three years by a Bank-approved Compliance Monitor.

In exchange for its full co-operation, the VDP participant enjoys:

  • immunity from sanction on disclosed misconduct;
  • anonymity
  • the ability to continue to bid on World Bank financed projects.

A participant that continues to engage in misconduct after entering the VDP or otherwise materially violates the programme’s terms and conditions will be debarred by the World Bank for a ten year period, which means that during the currency of the debarment the participant will be (a) prevented from bidding on World Bank financed projects; and (b) cross-debarred by those Multilateral Development Banks that have signed and implemented the April 2010 Agreement for Mutual Enforcement of Debarment Decisions (“the Cross-Debarment Accord”.

How Bretton Woods Law Can Assist You

Bretton Woods Law lawyers have established expertise in the VDP operated by the World Bank Group and understand fully the modalities of self-reporting to other Multilateral Development Banks, such as the ADB, which welcome self-reporting, but which do not as yet have a functioning and transparent programme. Bretton Woods Law handles for its clients all aspects of entry into and participation in the VDP or other forms of self-reporting.  From first contact with the banks through to the fulfilment of all VDP obligations, Bretton Woods Law lawyers have established and verifiable experience.  In particular, Bretton Woods Law lawyers:

  • will conduct all the necessary internal investigations to a standard that meets and exceeds the bar set by the World Bank; and
  • will design and, if necessary, implement an integrity compliance program that has previously been described as “gold-standard” by the World Bank’s Integrity Compliance Officer (“ICO”).

For further information about how Bretton Woods Law can assist you in moving away from corruption in a protected manner, please contact your nearest office or email us at enquiries@brettonwoodslaw.com.

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Bretton Woods Law celebrates its first successful year based on experience in and knowledge of International Organisations Law

By | Administrative Law, Centre of Excellence, IAL, International Administrative Law, Multilateral Development Banks, News, Voluntary Disclosure Programme | No Comments

Bretton Woods Law today celebrates its first birthday, a year that has seen innumerable achievements in both the Multilateral Development Bank and International Administrative Law sectors, where it now dominates.

Multilateral Development Banks

Although Bretton Woods Law is one today, the experience of its lawyers spans decades and it is hardly surprising that in its first year its multilateral development bank practice has absolutely flourished.  Bretton Woods Law specialises primarily in assisting companies that have been accused or charged by the multilateral development banks, such as the World Bank Group, of having engaged in sanctionable practices (i.e., fraud, corruption, collusion or coercion) on bank funded projects.  Bretton Woods Law’s record in the past twelve months has been impressive and warrants mention: three complete immunity arrangements brokered, one caveated immunity arrangement obtained, five completed internal investigations undertaken and instructions to undertake seven more.  Moreover, advice has been given on entering a voluntary disclosure programme and a complete new integrity compliance program that meets and exceeds the World Bank’s Integrity Compliance Guidelines was designed, implemented and accepted as “gold standard” by the bank.  Not a bad achievement for the first year!

Bretton Woods Law has an in-depth understanding of the Voluntary Disclosure Programme established by the World Bank, the only Multilateral Development Bank to do so, and has spent its first year advising clients on such preventative measures.

To read more about Voluntary Disclosure Programmes and how Bretton Woods Law can be of assistance, please click here

International Administrative Law

As specialists in International Administrative Law, which is the employment law of the international organisations, Bretton Woods Law has spent the past year representing International Civil Servants around the globe that are or have been in dispute with their respective international organisations.  Their experience and knowledge of this particular area of law is second to none and has seen them undertake cases throughout the world, not only for Staff Associations and their membership, but also for the international organisations themselves.  Bretton Woods Law is currently working on international administrative law matters in the following international organisations:

International Administrative Law Seminars

Bretton Woods Law’s commitment to improving International Administrative Law has led them in their first year to hold three International Administrative Law seminars of their own (two in Geneva and one in Washington) and on top of this Bretton Woods Law lawyers were invited to participate in the UNSO-ICTY sponsored conference in The Hague.  The Geneva and Washington seminars were designed to enable Staff Associations and their members to get together and debate the hot topics associated with this law.  The seminars gave attendees a chance to share their experiences, good and bad, of international administrative law as well as benefiting from free advice and consultancy from International Administrative Law specialists.

Overview of our Washington seminar

Overview of our first Geneva seminar

Overview of our second Geneva seminar

International Administrative Law Centre of Excellence

It has been very clear for a long time that International Administrative Law was in desperate need of an independent body to assist in its global development and improvement and with this in mind Bretton Woods Law set up the International Administrative Law Centre of Excellence.  This Centre of Excellence has been created to act as an effective ‘think tank’ from which new and thought provoking ideas and concepts will emerge, alongside promoting international best practices, to enhance and significantly improve the employment law of international organisations worldwide.  Through the work of its membership, the Centre’s mandate and purpose is to be an effective focal point, ensuring fairness and justice for all who work within international organisations.

The Centre of Excellence is open to anyone involved in International Administrative Law: legal practitioners, union representatives, mediators, ombudspersons and academics, in fact anyone who wants to become engaged in the evolution of the law.

To apply for membership click here

A Truly International Practice

When Bretton Woods Law opened its doors it had four full time lawyers working on multilateral development bank and international administrative law matters, with other lawyers on call, but the uptake on its services has been such that it has now been joined full time by two further international lawyers: Alex Haines from France and Antje Kunst from Germany.  The multilingual Bretton Woods Law team, speaking English, French, German, Italian and Spanish, and led by Lee Marler and Neil Macaulay, is even more effective now than it was twelve months ago.

Moreover, when Bretton Woods Law opened for business, it was from the outset an international law practice, with offices in London, Geneva, New York and Washington DC. However, due to the quantity of work they are receiving from the Philippines, they have now opened an office in Manila.  This new office is a true testament to what Bretton Woods Law has achieved in its first year and more importantly what it hopes to achieve in its second.

 

For full contact details for Bretton Woods Law’s offices, please click here.