Equality of arms – a hot topic at first Geneva seminar

International_civil_servants

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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