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Alex Haines from BWL to talk on the Immunities of International Organisations at the Stockholm Center for International Law and Justice

By | Administrative Law, Conferences, IAL, International Organisations, Multilateral Development Banks | No Comments

On 14th November 2017, Alex Haines, barrister at Bretton Woods Law, will be giving a presentation on the Immunities of International Organisations at the Stockholm Center for International Law and Justice (‘SCILJ’). The presentation will cover functional immunity (e.g., the 1945 United Nations (‘UN’) Charter), immunity from jurisdiction (e.g., the 1946 Convention on the privileges and immunity of the UN, and the jurisprudence of the International Court of Justice (‘ICJ’), the European Court of Human Rights (‘ECtHR’), and a International Administrative Tribunals (‘IATs’)), and examples of how immunity is challenged and defended in practice (e.g., the UN Haiti Cholera Case, and the recent Canadian Supreme Court case of Wallace involving the World Bank).

The seminar will also address the various internal justice systems of international organisations such as the Sanctions Regime of the Multilateral Development Banks (‘MDBs’) and the administrative and judicial processes set up as alternatives to domestic systems.

The event will start at 16:00 (until 18:00), at Fakultetsrummet, floor 8, C-building, Frescati, Stockholm. Please register by emailing scilj@juridicum.su.se, preferably by 10th November 2017. Further details can be accessed here.

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The EBRDAT reaffirms the application of general principles of international administrative law to the internal law of the EBRD and criticises it for being “exceedingly pedantic”

By | Administrative Law, IAL, International Administrative Law, Multilateral Development Banks, News | One Comment

Following the successful appeals to the European Bank for Reconstruction and Development Administrative Tribunal (“EBRDAT”) in the cases of Kominek & Others v EBRD (see: EBRD 2013/AT/01 and EBRD 2013/AT/02), Neil Macaulay and Alex Haines of Bretton Woods Law (“BWL”) have secured another victory in the case of Grassi v EBRD (see: EBRD 2016/AT/01).  On the 18th January 2016, the EBRDAT allowed Mr Grassi’s (“Appellant”) appeal against the 9th September 2015 decision by the EBRD President adopting the recommendation of the Bank’s Grievance Committee (“GC”).  The GC, which sits as the body of first instance in the Bank’s internal justice system and below the EBRDAT, had recommended not to exercise its jurisdiction over all the elements contained in the Appellant’s ‘Request for an Administrative Review Decision’ (“RARD”) on the basis that it had been submitted outside the relevant procedural deadline, and was thus time-barred.  The time limit for the submission of the Appellant’s RARD landed on a non-working day (i.e., Saturday) but was submitted the next working day (i.e., Monday).  The EBRDAT found that, contrary to the GC’s recommendation and contrary to the Bank’s arguments, the Appellant’s RARD had, in fact, been timely submitted on the Monday, even if, strictly speaking, it came after the Saturday deadline.  The EBRDAT had “no hesitation to ‘remedy’ the anomaly in the Grievance Procedures by way of a liberal interpretation” (see: paragraph 33 of the judgment).

The EBRDAT’s judgment adopted the arguments raised by the Appellant, and relied, inter alia, on best practices of other Multilateral Development Banks (“MDBs”) (e.g., the International Monetary Fund (“IMF”) and the African Development Bank (“AfDB”)).  The rules of procedure at the Administrative Tribunals of a number of international organisations allow, as do many national systems, for the filing of a grievance on a ‘next working day’, thus preventing the unfair situation that had arisen in the Appellant’s case.  The Bank had argued that the procedural rules should be interpreted strictly, despite the apparent prejudice in this case.  The EBRDAT, however, relied on a judgment from the Administrative Tribunal of the International Labour Organisation (“ILOAT“) (see: Judgement No. 2882, at consideration 6) and further found that “the Bank’s interpretation is exceedingly pedantic and formalistic, and would unduly hinder the Staff Member from defending his right effectively” (see: EBRD 2016/AT/01, at paragraph 33).

In its judgement, the EBRDAT also took into account of the contra proferentem rule, natural justice, and fairness as a principle of international administrative law.  Although the EBRDAT did not take the case of Kominek into account because its facts were different, that case also resulted in the EBRAT criticising the Bank for complicating matters unnecessarily: “Voluminous arguments and numerous documents have been submitted to the Judges, who have read them and concluded that this matter has been treated by the Bank as exceedingly complex when it is in effect quite simple. Indeed, it seems important that ordinary Staff Members perceive that the options for vindicating their rights are straightforward, lest they be intimidated by the ostensible prolixity (and attended costs) of the grievance system” (see: EBRD 2013/AT/01, at paragraph 21).

The latest EBRDAT decision is a victory for common sense: it remedies an exceedingly pedantic and formalistic approach depriving staff members from effectively defending their rights naturally, justly and fairly; it provides useful guidance for the GC on how to interpret the Bank’s internal laws; and it reaffirms the application of general principles of international administrative law to the internal law of the Bank with a view to filling its lacunas.

Read more >

The BWL IAL team can be contacted at enquires@brettonwoodslaw.com

 

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Common Focus and Autonomy of International Administrative Tribunals presentation

By | IAL, International Administrative Law, International Organisations, News | No Comments

Last month, Alex Haines from Bretton Woods Law gave a presentation in Strasbourg at the 50th anniversary of the creation of the Administrative Tribunal of the Council of Europe.  The International Colloquy was entitled “Common Focus and Autonomy of International Administrative Tribunals” and took place on 19th and 20th March 2015 at the Council of Europe.

Over two hundred people attended the conference including judges from the ECtHR and the following International Administrative Tribunals: UNDT, UNAT, CoEAT, IMFAT, EUCST, NATOAT, ADBAT, ESAAT, EUMETSAT and OECDAT.  The conference also saw the gathering of academics, legal advisers, staff representatives and independent practioners.

The programme covered the role and importance of administrative tribunals in international organisations, fundamental rights, factors affecting the exercise of the right to appeal, appeals systems and discretionary power.  A list of the participants, speakers and presentations can be accessed here http://www.coe.int/t/administrativetribunal/Default_fr.asp and https://mycloud.coe.int/index.php/s/0cc69e006be76be09bc57556dc6e5a1c

 

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The global angle: learning from our international institutions

By | Corruption, Multilateral Development Banks, News | No Comments

Three years after the Bribery Act came into force, the Crime and Courts Act 2013 was introduced, whereby the SFO and the DPP picked up the carrot of Deferred Prosecution Agreements to add to the stick of the Bribery Act. DPAs in the US federal system have been used by the Department of Justice and the Securities and Exchange Commission for over 20 years, and this inherently US approach has proved, to a large extent, successful.

The UK can no longer view corruption in both its jurisdiction and overseas as a sequence of compartmentalised obstacles: it is a global problem that demands international solutions, and a modern way of fighting it is for national and international prosecutorial authorities to work closer together and develop systems that encourage self-disclosure like DPAs. The UK has traditionally relied upon its own rich legal history, but the introduction of DPAs squarely based on the US model is a welcome addition to the armoury of mechanisms available in the global anti-corruption fight and the mere fact that the UK is prepared to adopt a foreign system is promising.

More needs to be done, however, as the same old problems remain (e.g., lengthy and expensive proceedings which are difficult to prove and which are not rehabilitation based) and we need to look beyond criminal law if we are to progress faster than corruption advances. In this regard, lots more can be learned from the anti-corruption offices of the Multilateral Development Banks where not only are intelligence sharing and self-reporting mechanisms prolific, but a more ‘commercial’ sanctions-based civil system is the norm.

The MDBs (e.g., the World Bank and the European Bank for Reconstruction and Development) have their own sanctions procedures that are in stark contrast to traditional national enforcement mechanisms and have helped shape the future in the fight against corruption: (i) widening the definition of offences and lowering the threshold for a finding of wrongdoing so that the sheer breadth of conduct that might constitute a sanctionable practice within MDB jurisdiction far exceeds that of national systems; (ii) harmonising sanctions through the introduction of cross-debarment by all MDBs and the adoption of unified guidelines for the investigation of corruption; and (iii) granting of immunity to companies in certain circumstances following self-reporting, in exchange for providing the MDB with essential intelligence such as the wrongdoing of other companies.

These developments in the MDB world have modernised the international fight against corruption and provide companies with the ability to minimise the commercial impact of findings of guilt, whilst offering them a constructive way to reform so as to prevent repetition of misconduct. Moving away from categorising corruption as a purely criminal matter has opened the door to lowering the standard of proof and increased settlements. It is, perhaps, too early to introduce all of the measures used by the MDB community in a national jurisdiction like the UK, but we should not shy away from the progress achieved by other entities in the global fight against corruption.

Relating articles on the fight against corruption>

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Legal Expenses Insurance – Game Changer for International Civil Servants

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

Earlier this year, lawyers from BWL were approached by a Manager at a large International Organisation based in London who had been, in his view, a victim of retaliation. As as a result, he was not promoted and his employer organisation failed to award him the pay rise he deserved.

He notified his household insurers who confirmed that his policy included legal expenses insurance for grievances arising out of employment disputes with his employer. Initially, his insurance company wanted to appoint an English employment lawyer to represent him throughout the international organisation’s internal justice system. Lawyers from BWL explained that the applicable law (i.e., international administrative law or ‘IAL’) was specific to international organisations and the insurance company eventually agreed to instruct experts in IAL to represent the employee in question. Once the formalities had been completed, the employee’s lawyers were able to represent him before the organisation and invoice the insurance company directly. A settlement was eventually reached, and at no stage did the employee have to pay for his legal representation.

This success story is a small step in balancing out the inequality of arms that exists all to often between international organisations and their employees. International Civil Servants are advised to examine the terms and conditions of their household insurance to check if it covers legal expenses for their employment disputes. They should also be aware that being insured does not mean that they have to accept any lawyer provided by the insurers, who will often not have the expertise required to represent them effectively.

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Bretton Woods Law sends international trial observer to Istanbul

By | Corruption, Employment Disputes, IAL, International Administrative Law, London, Multilateral, News | No Comments

On 19th December 2013, Alex Haines of Bretton Woods Law attended, in his capacity as an independent international observer, the 7th hearing in the long-running criminal trial of the legal representatives of Adbullah Öcalan, the leader of the Kurdistan Workers’ Party (PKK).  A delegation of leading barristers and solicitors from the UK attended the trial, which is taking place in the Silivri prison complex outside Istanbul, the largest courthouse in the world.  Another dozen international trial monitors from across Europe also attended as part of French and German delegations.

The Turkish authorities have established a special penal court to try 46 lawyers who were arrested in police raids throughout Turkey as part of the KCK anti-terror operations in November 2011.  There have been, to date, seven hearings in the proceedings.  Alex Haines’ mandate as a trial observer was to, inter alia, make the participants – particularly the judges – aware that they were under scrutiny, and to impartially record his views on the conduct and standard of the trial from a human rights perspective to ensure it complied with rule of law principles.

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Bretton Woods Law’s unique Global Approach to an International Practice

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

Law firms and barristers chambers often claim that they practise throughout the world and describe their work as international; but what does it mean to have a truly international practice? For the lawyers at Bretton Woods Law, an international practice means exactly that: practising in different countries, in different languages, with people of different nationalities and cultures, and within different international organisations. Since its birth in spring 2012, BWL has set itself apart from other law firms and barristers chambers by living up to its ever growing reputation as an established team of preeminent international law specialists with a truly global reach. BWL’s international practice manifests itself in the following ways:

 

1. International anti-corruption practice: investigations into alleged sanctionable practices in development projects worldwide

In the last 18 months, the lawyers at BWL have undertaken investigations into World Bank and Asian Development Bank (ADB) funded projects carried out in Tanzania, Zimbabwe, Sierra Leone, Southern Sudan, Afghanistan, Kyrgyz Republic, Mongolia, Cambodia, Vietnam, Ukraine, Kosovo and Sri Lanka. They have worked directly with the World Bank’s Integrity Vice-Presidency (INT) and the ADB’s Office of Anticorruption and Integrity (OAI), and have established themselves as experts in this specialist field. Members of Bretton Woods Law are also currently instructed by the African Development Bank’s (AfDB) Integrity and Anti-corruption Department (IACD) and have workings with the Global Fund’s Office of the Inspector General.

 

2. International organisations and their internal justice systems

The lawyers at BWL currently operate in seventeen international organisations, based in nine countries and spread over four continents. Their work is varied and they currently act for:

  • the staff associations, councils and unions of the European Bank for Reconstruction and Development (EBRD), the Inter-American Development Bank (IDB), the Pan American Health Organisation (PAHO), the European Patent Office (EPO);
  • individual international civil servants and board members at the International Criminal Court (ICC), the International Maritime Organisation (IMO), the International Oil Pollution Compensation Funds (IOPC) the Commonwealth Foundation, the United Nations Development Programme (UNDP), the International Coffee Organization (ICO), the EBRD, the IDB, the PAHO, the EPO and the ADB; and
  • the Commonwealth Secretariat (in relation to cases arising out of grievances within its own internal justice system).

Beyond assistance and representation in the disciplinary boards and the first-tier tribunals such as the Conciliations Committees, the Grievance Committees and the Joint Appeal Boards, the lawyers at BWL also represent clients in the IDB Administrative Tribunal in Washington DC, the EBRD Administrative Tribunal in London, the ADB Administrative Tribunal in Manila and the International Labour Organisation Administrative Tribunal (ILOAT) in Geneva.

 

3. International Alternative Dispute Resolution

Beyond traditional litigation and advocacy within international organisations’ internal justice systems, the lawyers at BWL are experts in international Alternative Dispute Resolution (ADR) and currently represent the Uruguayan, Guyanese, Brazilian, Guatemalan, Bolivian, Nicaraguan, Mexican, Paraguayan, Panamean, Costa Rican and Argentinian Country Offices of a large international organisation in formal mediation proceedings. BWL also has experience of mediations arising out of employment disputes within the EBRD and the Commonwealth Secretariat in London. Through its International Alternative Dispute Resolution Services (iADRs), BWL’s dedicated team ensures it offers known experts in International Organisations Law who are CEDR trained and accredited mediators who have the ability to broker settlement agreements in the most difficult and challenging of circumstances.

 

4. Multilingual lawyers and offices worldwide

Boasting seven specialist lawyers of four different nationalities and diverse backgrounds, who between them practise (written and spoken) in English, French, Spanish and German, BWL has representative offices in all the important seats of international organisations worldwide: London, Geneva, New York City, Washington DC, Tunis and Manila. Members of Chambers have lived and practised in the United Kingdom, Germany, the United States of America, Tunisia, France, Switzerland, East Timor, Papua New Guinea, Belize, Cyprus, the Turks and Caicos Islands, the Netherlands, Australia and the Gaza strip.

By travelling around the globe representing International Civil Servants who face intricate employment issues, the BWL team faces varying approaches, languages and cultures on a daily basis, all of which they takes in their stride. This innate empathy with different nationalities enables them to represent their clients against large international organisations with a very human approach. The same can be said for their work alongside companies who have been accused of fraud, corruption and bribery on projects funded by multilateral development banks (MDBs). Their ability to carry out investigations and research involves dealing with clients, including international organisations and International Financial Institutions (IFIs), from around the world, and their cultural sensitivity and international experience is highly advantageous and benefits clients and colleagues alike.