Category

International Administrative Law

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BWL lectures on international administrative law at the universities of Paris I (Panthéon-Sorbonne) and Paris II (Panthéon- Assas)

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

On 18th November 2016, Bretton Woods Law barrister Alex Haines gave a lecture at the renowned Parisian universities of Paris I (Panthéon-Sorbonne) and Paris 2 (Panthéon-Assas) to the Masters’ students reading International Administration.  The guest lecture took place in the Salle des Conseils opposite the Panthéon in Paris, and was coordinated by Anne-Marie Thévenot-Werner, doctor at University Paris I and author of Le droit des agents internationaux à un recours effectif, and Carolyne Clermont, Master 2 student at Paris I.

The presentation (“Is there a common IAL beyond the law of the international civil service? – A comparison between principles applied to disciplinary law in the international civil service and to the sanction systems developed by MDBs”) explored the extent to which a common international administrative law exists beyond what has traditionally been reserved to the law of the international civil service.  By comparing the disciplinary process within the internal justice systems of international organisations with the sanctions systems developed by Multilateral Development Banks, a number of common principles which have come out of the judgments of international administrative tribunals (e.g., the World Bank Administrative Tribunal) and international sanctions bodies (e.g., the World Bank Sanctions Board) can be identified, pointing to an evolving common international administrative law based on general principles of international law and best practices.  Alex also gave advice on legal careers in international law in both the private sector and international organisations.

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The EU Court’s Grand Chamber supports equality and the rule of law in EU Missions

By | IAL, International Administrative Law, News, Rule of Law | No Comments

In a long awaited judgment the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) found on appeal that it has jurisdiction in an employment dispute brought by an Italian magistrate who was seconded by her government to the CDSP mission in Bosnia Herzegovina.

In the Case C‑455/14 P H vs. Council of the European Union and the European Commission and the European Union Police Mission (EUPM) in Bosnia and Herzegovina the claimant brought a legal suit before the EU General Court seeking the annulment of a re-deployment decision adopted by the Head of the EUPM and compensation for harm suffered as a result of alleged psychological harassment.

In an earlier decision refusing the claim the EU General Court ruled on 10 July 2014 in H v Council and Others (T‑271/10) that it lacked jurisdiction since the contested decisions fell within the EU’s Common Foreign Security Policy (‘CFSP’) and relied upon provisions that set out that the CJEU shall not have jurisdiction over provisions relating to the CFSP norwith respect to acts adopted on the basis of those provisions.

The Grand Chamber ruling on 19th July 2016 found that pursuant to the aforementioned provisions, the CJEU does not, in principle, have jurisdiction on the provisions of, or acts adopted under, the CSFP. The Court then observed that the European Union was founded, in particular, on the values of equality and the rule of law stating:

“The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law”.

Whilst the ruling acknowledged that the contested decisions were admittedly set in the context of the CFSP it added that this does not necessarily exclude the jurisdiction of the EU judicature. The Grand Chamber then referred to the fact that the EU judicature had jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. It noted that staff members seconded by the Member States and those seconded by the EU institutions were subject to the same rules so far as concerns the performance of their duties ‘at theatre level’.

Indeed, the decisions adopted by the authorities of that mission, which related to the allocation of human resources assigned to it by the EU institutions and Member States, did have an operational element, which fell within the CFSP. However, by their very essence, they also constitute acts of staff management. Consequently, it was held that the jurisdiction of the EU judicature should not be excluded from reviewing acts of staff management that relate to staff members seconded by the Member States.

Finally the Grand Chamber held that the contested decisions were only imputable to the Council and that, accordingly, the action was admissible only in so far as it was directed against the Council. The case was referred back to the General Court for judgment on the substance of the action.

The Grand Chamber’s judgment is very welcome news for more than 1500 staff who currently serve with CSDP missions, in some of the most dangerous parts of the world. It is an important step towards bringing missions under judicial scrutiny, thus achieving greater legal accountability. It is expected that the case-law of the CJEU will also serve as an important tool for policy change and as guidance for human resources officials in CSDP missions, seconding institutions and employees serving in CSDP missions alike.

In conclusion, the Grand Chamber has made an important ruling by permitting effective judicial review of staff management decisions by a CSDP mission, thusensuring compliance with EU law, including the EU Charter, and bringing a welcome boost to the morale of staff upon whom the success of such missions ultimately depends.

View full decision >

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Antje Kunst provides lecture to a delegation of the Vietnamese bar federation

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

On 6 July 2016, Antje Kunst from Bretton Woods Law provided a lecture to a delegation of the Vietnamese bar federation during a study trip organized by the German Federal Bar and the Foundation for International Legal Cooperation (IRZ).

The German Federal Bar (Bundesrechtsanwaltskammer) is the umbrella organization of the 28 regional Bars in Germany (Rechtsanwaltskammern) and safeguards the professional interests of all lawyers in Germany at a federal, European and international level.

The delegation consisted of the vice-president of the Vietnam Bar Federation and vice-presidents of several regional bar associations in Vietnam.

Antje provided a lecture on risks and threats of corruption and the legal profession setting out inter alia the results of the IBA OECD and UNODC survey of 2010 in this area. She explained international anti-corruption instruments such as UNCAC, its implementation review process and requirements on preventive measures and criminal sanctions. She elaborated on the IBA international principles on conduct for the legal profession of 2011, i.e. independence, integrity, avoidance of conflicts of interest and confidentiality/professional secrecy. She discussed with her Vietnamese colleagues specific corruption risks for the legal profession such as the attorney-client privilege and the instruction of lawyers as intermediaries or agents (especially in international business transactions).

She highlighted the role of the legal profession can play in the international fight against corruption referring to the IBA Anti-Corruption Guidance for Bar Associations: Creating, Developing and Promoting Anti-Corruption Initiatives for the Legal Profession. Her Vietnamese colleagues provided interesting insights on corruption in the justice sector, the national anti-corruption legislation, projects and efforts to curb corruption including in the legal profession and the challenges faced.

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International Events and Opportunities

By | International Administrative Law, Multilateral Development Banks, News | No Comments

Earlier this month, a delegation of seven barristers from different sets of Chambers including Alex Haines from Bretton Woods Law and Bar Council representatives including the Chairman of the Bar, travelled to Seoul and Shanghai for a four-day business development mission. The delegation spent two days in Seoul on 4th and 5th April, where it was joined by four barristers from the Korean Exchange Programme for young lawyers, who were spending two weeks in Korean law firms. On 6th and 7th April, the delegation moved onto Shanghai for the second part of the mission.

Bar Council business development missions are aimed at promoting barristers’ expertise as advocates in international dispute resolution and at raising awareness of the ability of foreign law firms and clients to instruct the Bar directly. All business development missions organised by the Bar Council provide a platform for barristers to network with local lawyers and better understand the local markets, and build relationships with local bar associations with a view to exploring opportunities for further collaboration. Given the ever increasing link between the rise in barristers’ income from international work and the challenges faced by the profession domestically, it has never been as important as it is today to generate new connections and consolidate existing relationships. In the case of China, the Bar Council has been running a training scheme for Chinese lawyers since 1986. This mission was also the third to Seoul since 2011, meaning that there was already a solid connection between the Bar and its counterparts in South Korea and China.

Read more >

 

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BWL Academic Member – Rishi Gulati – Presents at NYU on International Organisations Immunities on 11 April 2016

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

Monday, April 11, 2016  |  12:30 PM – 2:00 PM
Seminar Room 110, Furman Hall, 245 Sullivan Street

IO Immunity: Access to Justice Denied?

International Organisations (“IOs”) enjoy jurisdictional immunities before domestic courts.  The effect of such immunities is that, generally speaking, national courts refuse to adjudicate disputes where an IO is sued, and where that IO refuses to waive its immunity from suit. Traditionally, IO immunities have been absolute, and generally speaking domestic courts refuse to pierce it. This means that often, individuals and private parties who may have a grievance against an IO, in seeking a remedy, are left to the mercy of the IO’s internal justice system, or to alternative forms of dispute resolution such as arbitration, which can be expensive and opaque. 

In this presentation, I will first, highlight the kinds of disputes that may arise between IOs and private parties. Second, I focus on disputes between IOs and its staff, a common occurrence, showing that such employees may often be left without a remedy. Given that such cases arise frequently, this is a fertile ground to analyse how the principles on IO immunities are developing and work in practice. Finally, I discuss the ongoing Haiti litigation, and the case law from the European Court of Human Rights regarding the right to access to courts and its bearing on IO immunity. I will conclude by making observations whether or not these decisions have succeeded in enhancing access to justice.

Further details > 

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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 | No Comments

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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Landmark prosecutions under Australian Foreign Fighters Legislation and the role of international law

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

Returning foreign fighters from Syria have posed a legal challenge for domestic prosecuting authorities. BWL Academic Member and Australian Barrister, Rishi Gulati has undertaken work in the national security law area. In an interview with Radio National of the Australian Broadcasting Corporation on 17th November 2015, Rishi discusses a landmark case in Melbourne that is likely to set a legal precedent for returning foreign fighters.

 

http://www.abc.net.au/radionational/programs/breakfast/landmark-case-in-melbourne-to-set-legal/7036200

 

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Bretton Woods Law speaking in at British Embassy in Vienna and La Sapienza University in Rome

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

On 27th November, Bretton Woods Law presented a seminar on international administrative law in Vienna. Hosted in conjunction with the British Embassy in Vienna and UK Trade and Investment (‘UKTI’) at the Residence of HE the British Ambassador, some 38 delegates from 25 different international organisations attended for a selection of lectures presented by members of BWL covering themes such as fundamental and essential rights, harassment, the big issues of IAL and litigating before administrative tribunals and legal insurance.

This event follows BWL’s participation in the Round Table at La Sapienza University in Rome on 6th November, which focused on the theme of ‘right of appeal in international administrative courts. The Round Table was organised by the Committee of Staff Representatives of the Co-ordinated Organisations (‘CRP’), the Association of Scholars of International and European Law, the University of Rome La Sapienza’s Department of Communication and Social Research, the Journal of the International Legal Cooperation, KorEuropa (On-line Journal of the European Documentation Centre of the Kore University of Enna), the International Law and European Union Law Series (Aracne Ed.). Jazz Omari delivered a presentation entitled ‘Should an appeal mechanism be introduced against rulings by the courts of International financial institutions?’ which compared the current structure of the internal justice systems at multilateral development banks and examined possible structural reforms devised by Lee Marler. The Round Table received a Medal of the Presidency of the Italian Republic and the presentations shall be published by Aracne Editions in the new year.

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The International Administrative Law Centre of Excellence publishes the Internal Justice Systems of International Organisations Legitimacy Index 2015

By | IAL, International Administrative Law, News | One Comment

On 1st and 2nd October 2015, the third annual International Administrative Law (“IAL”) Centre of Excellence conference took place at King’s College, London, where delegates represented 26 international organisations, including the World Bank, the EU, UNIDO, EPO, WHO, WTO, EBRD, AsDB, IAEA, OECD and OECD.

The IAL Centre of Excellence annual conference brought together international civil servants, union representatives, independent lawyers and lawyers for human resources and management, academics, and others interested in IAL from around the world, with a view to shaping and improving this area of the law.

The conference topics included recent developments in IAL, the concept of fairness, whistleblower protection at the UN, updates on legal insurance and class actions, the EU courts and violation of Article 6 ECHR.

The conference culminated with the presentation of the second version (2015) of the IAL Centre of Excellence’s Internal Justice of International Organisation Legitimacy Index. The 2015 version of the Index comprises of 28 international organisations of different sizes and from different continents, and ranks the internal justice systems of international organisations against one another with reference to customary international human rights law and general principles of international law.

Access the 2015 Index and more general information on the IAL Centre of Excellence

 

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Alex Haines presents to the Council of Europe in Strasbourg for the Administrative Tribunal’s 50th anniversary

By | Administrative Law, IAL, International Administrative Law, News | One Comment

Earlier this year, Alex Haines from Bretton Woods law gave a presentation on the Appeals Systems of international organisations at the Council of Europe in Strasbourg for its Administrative Tribunal’s 50th anniversary: The International Colloquy of the Administrative Tribunal – Common focus and autonomy of international administrative tribunals.

[icon_button type=arrowright target=blank url=http://clients.dbee.com/coe/webcast/index.php?id=20150319-1&lang=lang&ch=28]Watch the presentation[/icon_button]

International Colloquy of the Administrative Tribunal