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Civil Servants

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

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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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The Success of which we cannot speak

By | Administrative Law, Civil Servants, Human Rights, International Administrative Law, London, News | 2 Comments

Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system.  In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee.  One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter.  This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].

The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom.  But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals.  EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.

The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT.  The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors.  The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings.  Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions.  In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)

Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.”  What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.”  The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him.  What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.

What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge.  This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.

Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals.  It is abused by international organisations, it is abhorrent and it should be stopped.  If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve.  However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.

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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.

International Administrative Law

Bretton Woods Law International Administrative Law seminar at PAHO draws top international civil servants from the Americas

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

On 28th February, Bretton Woods Law held a seminar at the behest of PAHO (Pan-American Health Organisation) on International Administrative Law – the employment law of international civil servants. The seminar drew 50 attendees from around the Americas, including senior Staff Association members as well as doctors and other medical professionals.

The topics in the agenda were wide and varied and included: clarity of the law, confidentiality of proceedings and the role of lawyers for the organisation. However the point that seemed to cause the most debate was Staff Associations – their independence, the need for dues, industrial action & retaliation.

Some of those present expressed their fear of approaching Staff Associations to discuss their concerns and joining class actions for fear of retaliation and reprisal. There was also an in-depth discussion on the fact that even if employees win their case, they will not automatically be awarded their legal fees – which along with the fear of retaliation creates a strong barrier to some international civil servants taking their grievances to a tribunal.

It was of course agreed that the present situation is unfair and untenable, and change needed to happen, particularly a confidential forum where international civil servants could share their views and experiences without fear of reprisal and retaliation.

In view of these concerns, Bretton Woods Law was delighted to have the opportunity of inviting all attendees to apply for membership to the International Administrative Law Centre of Excellence , a forum whose primary aim is to assist in the global development and improvement of International Administrative Law.

The Centre of Excellence has also been designed to create just what these international civil servants need  – a confidential arena in which they can, without fear, freely express their concerns and views. It is hoped that from these shared experiences, new and thought provoking ideas and concepts will emerge, which, together with promoting international best practices, will enhance and significantly improve the employment law of international organisations worldwide.

 

If you are an International Civil Servant, who wants to help change your employment law, apply today for membership to the International Administrative Law Centre of Excellence.

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2nd Geneva seminar on International Administrative Law

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

Following the success last month of our first Geneva International Administrative Law (IAL) seminar, we have decided, due to popular demand, to hold a second seminar on Wednesday 27th March 2013 and we would like to offer you a complimentary invitation.

Attendees will again benefit from free expert advice from legal specialists, as well as being able to share their own views and opinions with their peers on the following topics:

  1. Effectiveness of internal justice system
  2. Clarity of the law
  3. Confidentiality of proceedings
  4. Staff associations (independence, the need for dues, industrial action & retaliation)
  5. Executive heads reviewing the lawfulness of their own decisions
  6. The role of lawyers for the organisation
  7. Mandatory mediation
  8. The ethics functionCase studies of common staff grievances and how to successfully litigate
  9. Improving IAL (codification of IAL principles, uniform internal justice mechanism, legal expenses insurance for all international civil servants, one Global AT etc)

Join us on 27th March at the Hotel Intercontinental 7-9 Chemin Du Petit-Saconnex Geneva, 1211.

  • Registration: 9.00am
  • Lunch: 1pm
  • Seminar closes: 3.30

Register here

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Equality of arms – a hot topic at first Geneva seminar

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

On 6th February, Bretton Woods Law held its first International Administrative Law seminar in Geneva. The seminar was attended by a number of senior Staff Association members in order to discuss a selection of the most important aspects of International Administrative Law facing international civil servants today.

One of the main topics that was debated was the thorny issue of ‘Equality of Arms’, and for those international civil servants who could not make the seminar, an overview of Bretton Wood Law’s thoughts on this particular subject can be found below.

Bretton Woods Law has also set up the International Administrative Law Centre of Excellence, to assist in the global development and improvement of International Administrative Law. Apply for membership >

Equality of Arms

A ‘David v. Goliath’ situation prevails in most, if not all international organisations.  An employee who wishes to raise a complaint that his or her contract of employment has be contravened by the organisation that he or she works for (e.g., a secretary who claims to have been bullied or harassed by her boss), will normally have to face a human resources department that is advised by specialist lawyers from within the organisation’s legal department.  In some organisations, such as the multilateral development banks (e.g., the World Bank, EBRD etc.), whole teams of lawyers exist (known as institutional & administrative (“I&A”) law teams) whose primary function is to defend the organisation against employment related claims brought by staff members.  What is more, the organisation has if necessary the funds at hand to engage external lawyers to advise it and protect its interests.  In stark contrast, the employee does not have such legal resources at his or her disposal and may well not have the funds to engage a lawyer at all or only for a limited period of time.  The majority of internal justice systems operated by international organisations do not provide for any form of ‘legal aid’ nor do they operate a defence service under which lawyers are employed by the organisation to represent employees before the grievance committees and administrative tribunals that they operate (however, c.f., the United Nations Office of Staff Legal Assistance).  Moreover, the statutes and procedures that create the committees, boards and tribunals that form the internal justice systems of many international organisations either do not permit those bodies to award costs against the organisation and in favour of the employee or, if they do, those costs can only be awarded at the very end of a case, which may take years to finalise.  Indeed, it would appear to be a tactic of some lawyers within certain organisations that we have encountered to delay intentionally in order to put the injured international civil servant to unnecessary expense and thereby starve him or her out of the litigation process.  One case in which Bretton Woods Law lawyers are involved is now in its third year due to ‘stalling tactics’ on the part of the organisation.  Other cases are delayed by an organisation taking novel and ultimately unsuccessful jurisdictional arguments (on this point see O Elias’ The Development and Effectiveness of International Administrative Law (2012) at page 339).  In one international organisation in which we operate it can take up to fifteen years before a judgement is actually rendered by its administrative tribunal, which is astonishing as much as it is troubling.  Put bluntly, many international civil servants simply cannot afford to engage lawyers to assist them at all or for the time required in order to navigate the labyrinth of laws implemented by international organisations.  This disparity of wealth and the manner in which it is exploited by some international organisations causes an ‘inequality of arms’ between the litigants that can taint the legitimacy of the internal process and render it unfair.  The solution to this all too prevalent problem is of course obvious: the organisation that cloaks itself in an immunity from legal suit and thereby compels its employees to use its internal justice system should provide for a legal aid scheme of some description or, alternatively, arrange for legal insurance to be available to all of its employees, in the same way that it provides for medical insurance.

If you are an international civil servant and in need of specialist employment advice, contact your nearest office.

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Bretton Woods Law launches IAL Centre of Excellence

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

Bretton Woods Law is proud to announce the launch of the International Administrative Law Centre of Excellence, an exclusive members-only group whose main focus is to to assist in the global development and improvement of International Administrative Law. Click here for further details and to apply for your complimentary membership today