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Jordan Howells

UNICEF

Enhancing Children’s Rights in South Asia

By | Human Rights, International Organisations, Rule of Law, United Nations | No Comments

Whilst attending Law Asia’s Annual Conference in Colombo, Sri Lanka last summer, BWL’s Counsel, Rule of Law and Human Rights expert, Antje Kunst, met with an NGO that works with children with disabilities and a Buddhist monk engaged in social issues. The trio came up with the idea of bringing Janis McDavid, a young German student and motivational speaker who was born without arms and legs, to Sri Lanka.

Their goal was to change the perception of Sri Lankans towards children with disabilities and to advance their rights under international law, including the UN Convention of the Rights of the Child. The timing could not have been better, as Sri Lanka had just ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD)[1]

A few months later the team was joined by Lalith Ganhewa, a Sri Lankan radio journalist and producer from Berlin and the President of Lanka Help e.V. Deutschland, a humanitarian organisation helping inter alia persons with disabilities in Sri Lanka. After months of hard work involving civil society (e.g., NGOs, academia, media, business etc.), the government of the Southern Province and members of the diplomatic and donor community in Sri Lanka, a tour was organised. In December 2016 and January 2017, Janis delivered motivational speeches to Government officials, NGO representatives, youth leaders, university students, business leaders and other citizens, some senior officials within Embassies and the UN, as well as conducting interviews with the media.  The tour, in respect of which Antje played a crucial coordination, communication and planning role, was very successful.

In March 2017, a second tour took place and Janis provided a motivational speech before the Sri Lankan business community at a Rotary district conference. This time Antje, a former Senior Legal Adviser at the UN, was, together with UNDP Sri Lanka, involved in organising a motivational session in front of the staff of all UN Agencies, including their adolescent children.

The two tours motivated and helped raise awareness in mainstream Sri Lankan society as well as the UN and the diplomatic community in Sri Lanka, of matters important for the implementation of the UNCRPD and the UNCRC, including the importance of inclusive education and parenting.

To ensure the realization of the rights of children during adolescence, in December of last year the UN’s Committee on the Rights of the Child published a new General Comment [2] providing guidance to States on the necessary measures. The Committee stated “the potential of adolescents is widely compromised because States parties do not recognize or invest in the measures needed for them to enjoy their rights.” UNICEF South Asia’s goal to promote investment by state parties in the 340 Million adolescents in South Asia prompted the Deputy Head of the Regional Office South Asia to invite Janis to a conference held in May 2017 in Nepal. Janis opened the conference, which was attended by senior officials of all UNICEF South Asia’s country offices, with a keynote motivational speech which Antje helped to prepare, covering the topics of investment in, and fulfilment of, children’s rights, including in adolescence, leaving no child behind. His speech, which was widely disseminated in the social media and which was also addressed to the young people of South Asia, was focused on motivating that group to advocate for the realization of their rights.

Janis’ successful appearance in Nepal prompted the UNICEF Bangladesh country office to follow suit. In July 2017 Janis delivered motivational speeches to UNICEF’s HQ and field staff in and near Dhaka, the aim of which was to drive the achievement of results by its staff, including by ensuring the the fulfilment of rights of children. He also spoke to around 100 adolescent club members in the Mirpur slum with a view to enhancing their motivation to work as social change agents, which was supported by UNICEF.

The advancement of human rights, in particular of the most vulnerable members of society, i.e. children and young adults, including those with disabilities, requires a committed government machinery, supported by a motivated UN staff (e.g., of UNICEF), as well as motivated rights’ holders, e.g., the millions of adolescents and children and their caregivers in South Asia. Antje’s pro-bono work in South Asia was aimed at contributing positively to this noble endeavour.

Antje is very grateful to all those who helped to make this ambitious project a success, in particular to Martin Henrich – Rainbow-Project Baddegama; Samitha Baddegama Thero; Lalith Ganheva – Lanka Help e.V. Deutschland; Zahabia Adamaly; Lasanthi Senarath Attanayake & colleagues, Kelaniya University and the International Centre for Ethnic Studies; Rakitha Karunaratne and his team, German Goethe Institute Sri Lanka; Senake Amerasinghe – former Rotary District Governor and his team; Banthe Devananda; Una Macauley, Dilupa Fernando and their team at UNDP Sri Lanka; Philippe Cori and his team at UNICEF Regional Office for South Asia; Sara Bordas Eddy and her team at UNICEF Bangladesh Country Office; and of course, Janis McDavid.

 

[1] The purpose of the convention is to promote, and protect the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.

[2] General Comments provide authoritative interpretations of children’s rights under the Convention.

 

Antje Kunst

Counsel, Rule of Law and Human Rights Expert

antjekunst@brettonwoodslaw.com

Oxford

BWL’s Rishi Gulati and Alex Haines contribute to Oxford International Organisations

By | Uncategorised | No Comments

Since the start of 2016, Rishi Gulati and Alex Haines of Bretton Woods Law have been rapporteurs for Oxford International Organisations (‘OXIO’), a novel database launched by the University of Manchester’s International Law Centre (‘MILC’) of annotated materials specifically related to the law of international organisations.

OXIO was established by MILC in conjunction with Oxford University Press (‘OUP’), and is described as “a unique repository for acts and practices of international organisations which are of central importance to enquiries into international law, including institutional law” (click here).

The OXIO database is launching on 7th-9th September 2017 at the European Society of International Law (‘ESIL’) Conference in Napoli.

The specific acts that Rishi and Alex have written about include:

  • the Convention on the Privileges and Immunities of the United Nations;
  • the Convention on the Privileges and Immunities of the Specialized Agencies;
  • the Sanctions Procedures of the World Bank Group;
  • the Sanctions Procedures of the African Development Bank (‘AfDB’);
  • the Statute of the Administrative Tribunal of the Inter-American Development Bank (‘IADB’);
  • the Appeals Procedures of the Administrative Tribunal of the European Bank for Reconstruction (‘EBRD’); and
  • the landmark World Bank Administrative Tribunal case of de Merode et al v World Bank.

The OXIO database will include documents such as resolutions of international organisations, reports of legal advisers, judicial decisions, international agreements, and any act of legal relevance. MILC’s website describes the OXIO database as follows: “[t]oo often these acts either languish in obscurity or remain unpublished. In creating OXIO, MILC hopes to facilitate both professionals and academics’ access to a wide range of new primary materials as well concise scholarly analysis about the abundant practice of international organisations. Our aim is to launch OXIO by the end of 2017 with the ambition that it eventually becomes the largest Oxford University Press database on international law”.

The (dis)advantageous relationship between International Organisations and their host countries: the Austrian experience

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

 

The relationship between International Organisations (IOs) and their host countries creates some interesting legal and political issues which do not always sit happily together: on the one hand, IOs have broad autonomy and enjoy a remarkable number of privileges and immunities (which are generally a grey area for the host country’s authorities) yet, on the other hand, the IOs are an important resource for the host country in terms of economy and visibility.

In considering this relationship, the Latin expression “do ut des”, which means “give and receive” or, perhaps more accurately, “give to receive” is particularly relevant to the subject matter. In fact, in principle, hosting international organisations is convenient and “remunerative” but it implies the loss of sovereignty of the host country in some fields (e.g. see the extraterritoriality of the international premises) and the conferment of a number of privileges and immunities to the international organisations (inter alia, the immunity from national courts).

Privileges are exemptions from the otherwise applicable substantive law of a state, while immunities are usually regarded as exemptions from the administrative, adjudicatory, or executive powers of a state[1]. Typical privileges of IOs are partial exemptions from some areas of domestic law (such as taxes, customs, foreign exchange controls, immigration), the most common of which is the exemption from the obligation to pay any direct taxes for the IO itself and its employees (while for indirect taxes, reimbursement schemes are frequently agreed)[2]. However, the most important and significant immunity enjoyed by the IOs is that from legal suit, the so-called “jurisdictional immunity”, which can raise different interpretations but the existence of which is not controversial. What is controversial is its scope, i.e., whether it is absolute, restrictive or functional. Most treaties or agreements usually confer a functional immunity, which is not a crystal clear concept, especially for the national authorities that have to face the grey area of IOs’ immunities. It seems that, in practice, the concept of functional immunity frequently leads to a de facto absolute immunity[3].

While financial privileges’ disputes are mainly settled on a diplomatic level, the jurisdictional immunities have generated the most extensive case law in domestic court decisions, which provide “examples for judicial dialogues or conversations crossing national jurisdictional borders”[4]. National courts adopted different approaches to the jurisdictional immunity of IOs also in consideration of the legal system in place, i.e. common or civil law system, the first relying on precedent decisions, the latter on a “constant jurisprudence” that stems from codified legal sources. However, the common denominator is that national courts, in deciding whether to grant the jurisdictional immunity, rely on the availability of alternative dispute settlement methods. With the 1999 Waite and Kennedy v. Germany judgment of the ECtHR, the obligation for IOs to provide an alternative access to justice (namely, an effective internal justice system, comparable to the national one) has been directly linked to the awarding or not of the immunity from the national process. By way of a concrete example, if a national court can be persuaded that the existing mechanism within an IO is insufficient to afford the staff member proper protections of his or her employment rights, it could waive the IO’s immunity in the specific case and proceed to a judicial review of its internal justice system, with consequences on the immunities.

Therefore, in order to enjoy the privileges and immunities there is a “contractual exchange” whereby international organisations must fulfil their side of the bargain, by providing staff member who are subject to those immunities with access to appropriate and sufficient systems of justice as they might expect in domestic jurisdictions[5]. The privileges and immunities of international organisations cannot be considered inalienable if they conflict with the fundamental rights and principles of the host country, of the European Union and fundamental and basic principles of human rights. In short, immunities from legal suit do not give the IOs carte blanche to do as they see fit: this point is all the more pertinent where tortious harm has been caused to the staff member at the hands of the defendant organisation and the functional immunities from legal suit do not extend to such circumstances. The same concept applies to the immunity from enforcement measures, regularly enjoyed by IOs. Even if a domestic court is allowed to rule against an IO, the judgment cannot be directly enforced due to the Organisation’s strong immunity shield from enforcement measures. However, in this case, domestic courts have applied the Waite and Kennedy doctrine where the claimant does not have a reasonable alternative mean of enforcement.

On the other hand, being an International Organisation’s member state is commonly considered beneficial for both state and society, therefore being a host state creates particular advantages. The Austrian government described the presence of IOs in Vienna as an important goal of its foreign policy because it positively affects the country’s reputation and influence in international relations and has positive effects on the local economy.[6] Thus, Austria and the other countries hosting IOs have an interest in the smooth functioning of the Organisations present on their territory and in their freedom from unilateral interference, which generally originates from provisions in treaties and domestic legislation on IOs legal personality and their privileges and immunities. In this regard, it should be noted that Austria occasionally extends privileges and immunities to events related to IOs (such as seminars or meeting) or grants them to international entities whose status as IOs is uncertain such as, the OSCE, which is more a political organisation rather than an international humanitarian one and the CTBTO, which is a treaty signed and ratified by many countries but which cannot enter into force and become binding until all the nuclear technology holder countries sign and ratify it.  However, Austria, throughout the years showed a balanced approach towards IOs’ immunities when those immunities negatively affected third parties’ rights, in particular their right of access to justice. In fact, in Austria the ECHR (see, in particular, article 6) enjoys constitutional rank (like in most civil law European legislations) and the access to justice is part of the treaty law such as, for example, the International Covenant on Civil and Political Rights (ICCPR 1966, in particular, article 4); in addition, it is considered a norm of customary international law, thus binding both IOs and States[7].

During the Cold War, Austria served as platform for international dialogue, due to its geopolitical position and its neutral status. This role of “international hub” was strengthened by the opening in 1979 of the Vienna International Centre (VIC), also called UNO City. Since then, Vienna is seat of the United Nations (UN), together with New York, Geneva and Nairobi. The idea of the VIC born in 1966, when the Government of Austria made an offer to the United Nations to construct in Vienna an International Centre to be used by organisations belonging to the United Nations system. In 1967, the Government of Austria and the city of Vienna jointly decided to assign an area on the left bank of the Danube as the site of the centre and in 1968 organised an international competition for the design of the buildings, which attracted the interest of architects worldwide and was in the end won by the Austrian Johann Staber. The Government of Austria (65%) and the city of Vienna (35%) shared the VIC construction costs (approximately 640 million Euros)[8]. The construction site began in 1972 and the VIC complex, which covers an area of 180,000 m² and has extraterritorial status, was inaugurated on 23rd August 1979. Separate agreements were signed by Austria and, respectively, IAEA and the United Nations (on behalf of UNIDO and the other United Nations entities in Vienna) on 28 September 1979. The Government of Austria handed over the VIC complex to the United Nations and IAEA for the symbolic rental sum of one Austrian schilling (equivalent to 0.07 euro today) a year for 99 years[9].

Over the years, the presence of international entities in Austria grew exponentially and it is now quite impressive: more than 40 IOs, financial institutions, diplomatic representations, NGOs and Quasi-NGOs are present on the Austrian territory and constitute an important economic factor, too. They employ more than 6000 employees, out of which about a quarter are Austrian citizens. According to a recent study by Ernst & Young, the sector spends about 725 million Euros per year, which result in a macroeconomic demand effect of about 1.4 billion Euros and thus contributes to GDP growth and Austria’s prosperity. In the long-term, all indicators demonstrate the economic benefit of the sector, in particular, conference activities increased by one third in the period 2010 – 2014[10]. In this regard, for example, the nuclear negotiations with Iran, successfully completed in Vienna in July 2015, and the “Syria talks” held since autumn 2015, generated a publicity value equivalent to 100 million Euros.

Further to encourage the settlement of International Organisations, Austria incentives also Non-Governmental Organisations (NGOs) to choose it as their seat. In fact, upon request of an organisation, the Federal Ministry for Europe, Integration and Foreign Affairs may grant the legal status of Non-Governmental Organisation by decree, on the legal basis of the Federal Law on the Granting of Privileges to Non-Governmental International Organisations. NGOs not only are an important expression of the civil society, they also enrich the thematic work of International Organisations. In relation to this, since 2016, NGOs have the possibility to apply for recognition as Quasi-International Organisations upon the fulfilment of certain requirements: the organisation must have non-profit character, its structure has to be similar to that of an IO, it must have permanent staff and an appropriately equipped office in Austria; in addition, its work must be related to the mandate of an established IO.  On the other hand, the legal status of Quasi-International Organisation implies certain tax exemptions. A recent example of an organisation, which has been awarded the status of Quasi-International Organisation and that chose Vienna as its seat, is the “Sustainable Energy for All (SE4All)”. It started its activities in summer 2013 and established its permanent headquarters in Vienna in 2015. SE4All is headed by the Special Representative of the UN Secretary General for “Sustainable Energy for All” and therefore fulfils all the above-mentioned requirements[11].

Overall the relationship between IOs, NGOs and Austria can be described as extremely positive and fruitful for both parties. However, the other side of the medal is that the host country tends to avoid conflicts on the privileges and immunities granted to the IOs and on the “grey area” constituted by the jurisdictional immunity. Therefore, there is still room for a more regulated and transparent cooperation between the IOs and the national authorities in order to grant the IOs’ employees and, in general, the third parties involved in disputes with IOs, the full respect of their civil fundamental rights.

 

Ludovica Moro

ludovicamoro@brettonwoodslaw.com

 

[1] A. Reinisch, International Organisations Before National Courts.

[2] A. Reinisch, The Privileges and Immunities of International Organisations in Domestic Courts.

[3] See supra note 2.

[4] See supra note 2.

[5] This is a well-established principle also in the Convention on the Privileges and Immunities of the United Nations. A commentary on the Convention by Professor August Reinisch states: “The de facto “absolute” immunity of the United Nations is mitigated by the fact that article VIII, section 29, of the Convention requires the United Nations to “make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. The General Convention’s obligation to provide for alternative dispute settlement in case of the Organisation’s immunity from legal process can be regarded as an acknowledgment of the right of access to court as contained in all major human rights instruments.” (http://www.un.org/law/avl/ )

[6] A. Reinisch, The Privileges and Immunities of International Organisations in Domestic Courts.

[7] See supra note 6.

[8] Source: United Nations Office in Vienna (UNOV) website.

[9] See supra note 8

[10] Source: Austrian governmental website – www.bmeia.gv.at

[11] See supra note 10

2_note_fraud

Fighting Corruption is MY Responsibility: the Annual Report of the Asian Development Bank Office of Anticorruption and Integrity

By | Bribery, Corruption, Cross debarment, Debarment, Fraud, Multilateral Development Banks, Sanctions Board | No Comments

The Asian Development Bank (ADB)’s Office of Anticorruption and Integrity (‘OAI’) has released its 2016 Annual Report entitled Fighting Corruption is MY Responsibility (the ‘Report’).

OAI’s external mandate is carried out by its Investigations Division which reviews complaints and conducts investigations into allegations of integrity violations; the Due Diligence Unit undertakes its integrity due diligence functions, whilst the Review and Outreach Unit handles project procurement-related reviews and capacity development activities.

The ADB defines ‘integrity violations’ as any act which violates ADB’s Anticorruption Policy, including corrupt, fraudulent, coercive and collusive practices, the four sanctionable practices which are harmonised across other Multilateral Development Banks (‘MDBs’).

Somewhat surprisingly, the Report starts with the topic of Enhancing Tax Transparency in Asia and the Pacific. By approving an update to its Anticorruption Policy, the ADB has added its weight to the fight against tax secrecy, tax evasion and aggressive tax planning which erode domestic tax bases of the ADB’s developing member countries. That update will – according to OAI – support developing member countries to protect themselves against tax evasion, base erosion and profit shifting (‘BEPS’) and is significant because it is wider in scope than the traditional role of MDB anticorruption and integrity departments.

OAI reports that it had 211 open complaints from previous years and received 258 new complaints in the year 2016. Some 73% of the complaints received related to projects, 17 % to ADB staff and 10 % to ‘others’. The majority of complaints came to OAI via email, which is an indication both of the impact of technology on the operations of the Department and the ease with which complaints about companies and individuals may be made. From those, the focus of investigations was 53% on projects, 37% on ADB Staff with the remaining 10% falling within others. The sources of the complaints also makes for interesting reading, with 61% coming from parties external to the Bank and 35% from ADB staff, whilst only 2% came from audit reviews with the remaining 2% from anonymous sources. Despite these figures, the Report emphasises OAI’s proactive use of Project Procurement-Related Reviews (‘PPRRs’) of on-going ADB-financed projects. Once again, their scope is wide, for they seek to identify ‘noncompliance issues, irregularities, and integrity concerns, with respect to project procurement, disbursements, and delivery of project outputs’ and so firms which are working on Bank-financed contracts must remain diligent to ensure that staff and contractors continue to comply with the strict requirements that come with working with an MDB.

‘Fraud’ accounted for 73% of new investigations in 2016 and OAI explained that investigations into corruption, coercion and collusion remained low due to the difficulty in establishing these sanctionable practices. Indeed, it should be remembered that the threshold for an allegation of fraud within the MDB sanctions regime is extremely low: the mere inclusion of a CV for someone whom the company knows is unavailable or where it is reckless as to that availability may give rise to liability, sanction and extremely serious consequences for a company, including debarment.

OAI stated that it continued to fight corruption through both enforcement and prevention. In 2016, 138 entities, including 98 firms and 40 individuals were debarred as a result of integrity violations, bringing the cumulative total number of firms debarred to 1,261 by the end of the year. Indeed, under the agreement with other MDBs to mutually enforce each other’s debarment actions, the ADB cross-debarred 86 firms and 47 individuals and submitted 10 firms and eight individuals for cross-debarment to participating MDBs. Further, nine firms and one individual were conditionally non-debarred, whilst temporary suspension, a measure which was first introduced in 2013 in the ADB, was issued to one firm and one individual in the year 2016. OAI also completed 33 investigations where ADB staff were found to have engaged in integrity violations, 11 of whom received disciplinary sanction.

Surprisingly, OAI received a mere six appeals in 2016, involving just three firms and six indivduals; five of these and two pending from 2015 were denied because they did not meet the requirements for an appeal to be considered by the Sanctions Appeals Committee, a point which demonstrates the importance of engaging specialist counsel to advise on and prepare such matters.

OAI used its investigative findings to make recommendations in respect of preventive measures and by requiring subjects of investigations to improve their governance and integrity processes through conditional non-debarments, debarments with conditions and reinstatement processes.

The ADB views integrity violations as potential reputational risks and with that in mind, ADB project teams submitted 300 Integrity Due Diligence (IDD) advisory and review requests to OAI’s Due Diligence Unit, covering 644 entities. This was an 86% increase in the number of entities reviewed from 2015. OAI’s Due Diligence Unit was created in response to an increased need for ADB to evaluate and minimise integrity and reputational risks in its private sector projects, as well as taking into account its increased lending and development initiatives involving private companies; indeed, 52% percent of the total entities reviewed were actually identified by the Private Sector Operations Department.

In addition, there is a separate independent grievance process – ADB’s Accountability Mechanism – which receives complaints from entities which claim to have been adversely affected by an ADB-financed project which has resulted from the ADB’s noncompliance with its operational policies and procedures. The major areas of complaint are resettlement, compensation and land acquisition, and adverse environmental impacts.

The lawyers at Bretton Woods Law have unique and unparalleled experience of assisting companies and individuals with their interactions with the OAI. If you have any questions arising out of the issues raised in this article, do not hesitate to contact a member of the team.

Antje Kunst, Counsel and Senior Rule of Law Expert, Anti-Corruption and Integrity Trainer

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Alex Haines of Bretton Woods Law at the ‘School of Tomorrow’ Conference in Islamabad, Pakistan

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

The School of Tomorrow Conference series was initiated by Beaconhouse in 2000, and the recent event focused on seeking inspiration and equilibrium in a new age. The conference took place at the Pak-China Friendship Centre in Pakistan’s capital and involved more than 40 panel discussions. Alex sat on two panels: “The China Pakistan Economic Corridor and the Future of the Region: Socio-cultural and Economic Perspectives” and “Global Media in a Post-Truth Era”. As a barrister who specialises in international corruption and Multilateral Development Banks (‘MDBs’) sanctions cases, Alex gave his perspective of the impact which the recently established Beijing-based Asian Infrastructure Investment Bank (‘AIIB’) has had on the balance of power in the International Financial Institution (‘IFI’) arena. Specifically, he analysed the result of the AIIB-part-funded projects in the region on the MDB landscape and the traditional balance of power comprising the US-dominated World Bank, the European-dominated International Monetary Fund (IMF), and the Japanese-dominated Asian Development Bank (ADB). To a certain extent, the AIIB together with the Shanghai-based New Development Bank (NDB) suggests a new age in the world of MDBs in which China has a pivotal role, resulting in a number of opportunities for Pakistan and the surrounding region to make the most of the opportunities which an increasingly globalised world has to offer. Alex identified corruption and transparency as the two biggest challenges in this context. Alex also discussed the vital role of the judiciary and the Law in general in light of recent political events such as the US election and the High Court judgment at the end of 2016, concerning the UK Government’s capacity to trigger Article 50 – or ‘Brexit’ – after which the British press attacked its judges.

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.

4_signature_business

Asian Development Bank gets tough with companies who engage in sanctionable activities

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

The Office of Anticorruption and Integrity (OAI) of the Asian Development Bank (ADB) recently published its 2011 Annual Report (‘the Report’).  Two core messages flow from it.  The first is that efforts to tackle fraud and corruption have never been greater.  The second is the importance of ‘communication’ both between the MDBs and through OAI’s aim to ‘empower’ those involved in ADB activities “with a deeper understanding of ADB’s approach to the anticorruption fight”.  An appreciation of both messages is of paramount importance both for board members and employees of companies operating within the sphere of international development and procurement.  Indeed, many may think they have a clear view of the meaning of fraud and corruption; they are often equally clear that ‘fraud’ and ‘corruption’ are words which do not apply to them or their companies.  Yet the Report to the President may make for chilling reading: it spells out with crystal clarity conduct which may be viewed by the ADB as fraudulent or corrupt; conduct which, if found, will almost inevitably lead to the imposition of sanctions.  What might surprise many, is just how easy it is for a company to cross the threshold into sanctionable conduct.

The Bribery Act 2010 has, understandably, focused the attention of many bodies corporate on the need to be cognisant of the risks associated with such corrupt conduct.  However, it is important not to lose sight of the fact that sanctionable practices are not always as flagrant as the soliciting or payment of bribes.  Indeed, in 2011, in the case of allegations dealt with by OAI, “fraudulent practice formed the majority of investigations at 60%”.  Of that majority, misrepresentation “constitutes 52% of allegations pertaining to fraudulent practice, with submission of false documents (including bank guarantees, bid securities, or curricula vitae) at 27%.  False or inflating financial claims represent 18% of the investigations”.  It is of note that CV fraud is cited, since this is all too often a significant, but unappreciated risk area for many companies.

Companies necessarily operate in a competitive commercial environment and it seems that a practise has emerged in the field of procurement of submitting what effectively amount to ‘representative proposals’, where the personnel included are viewed not so much as integral and inseparable to a proposal, but as merely representative of the staff who might eventually be provided, should the bid be successful.  Such behaviour manifests itself as a risk in a number of ways.  One of the most common is the inclusion by a company of contractors’ CVs in proposals when that company knows or suspects that the consultant in question is not available to complete the project it is bidding for.  Furthermore, it is not uncommon for contractors to be unaware that their CVs have been included in a proposal.  It is no defence for a company to cite normal commercial practice as an explanation for such conduct; indeed, a single instance of such a misrepresentation is sufficient for a Multilateral Development Bank (MDB) to impose sanctions – including debarment.  The threat for companies of sanctions and in particular, debarment, is now greatly enhance by the cooperative approach to tackling fraud and corruption, which is now at the heart of the efforts of all of the MDBs.

The Report states that it “is important to note that the communication and exchange of information among the integrity offices of other MDBs greatly assisted in OAI’s investigations in 2012”.  It goes on publically to confirm that “ADB routinely shares information with the World Bank’s Integrity Vice Presidency and has received assistance from said office that has facilitated OAI’s investigations”.  Furthermore, the Report openly states that “more than 45 officials from government agencies and 13 development institutions have access to ADBs sanctions list”.  It is, perhaps, worthy of note that the period of debarment most frequently imposed by the ADB, both for firms and individuals, fell into the 4-7 years category.  This is made all the more significant as the relevant qualifying period for considering automatic ‘cross debarment’ is met where the “initial period of debarment exceeds one year”.

It is quite clear, then, that the regime in which international development companies operate has never been stricter and companies should factor this into their risk management strategies.  Not only is the liability often strictly interpreted, but it is now undeniable that knowledge of infringements arising out of that liability is not only being shared, but is being acted on throughout the MDB community.  The report recognises that such cross debarment has the effect of “significantly extending the reach and impact of sanctions” and as a result, it is not surprising that discussions “to further harmonize debarment practices among participating MDBs continue”.  It is with these points in mind that the value of early internal investigation and advice cannot be underestimated when companies are facing allegations, or even accusations, of fraud or corruption.  A misjudgement in respect of a CV could have potentially catastrophic consequences for the entire business.

If you are worried that your company’s internal procedures and programmes might leave you exposed to possible  accusations of fraud and corruption, Bretton Woods Law’s International Organisations Consultancy Service is the perfect solution to ensure compliance with Multilateral Development Banks’ stringent policies. To discuss your company’s needs in person, please click here to contact your nearest office.