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.

asian_infrustructure_investment

Asian Infrastructure Investment Bank closes its Doors to Corrupt Bidders

By | Multilateral Development Banks, News | No Comments

The Asian Infrastructure Investment Bank (‘AIIB’) is the latest Multilateral Development Bank (‘MDB’) to join the ranks of the other long-established MDBs such as the African Development Bank (‘AfDB’), Asian Development Bank (‘ADB’), the European Bank for Reconstruction and Development (‘EBRD’), the Inter-Amerian Development Bank (‘IADB’) and the World Bank (‘WB’). In furtherance of this objective, the AIIB has announced that it will voluntarily and unilaterally enforce debarment decisions of the other MDBs within its own sanctions regime. Although not yet formally a signatory to the Agreement on Mutual Enforcement of Debarment Decisions (the ‘Agreement’) dated 9th April 2010, the effect of the AIIB’s decision is to render any debarment decisions of the other MDBs which qualify for cross debarment, also applicable at the AIIB, such that nearly one thousand companies which find themselves debarred by the other MDBs will also be ineligible to bid on contracts at the AIIB.

This unilateral action is, of course, likely to be a precursor to the AIIB becoming a formal signatory to the Agreement whereupon decisions within the sanctions regime of the AIIB which qualify for cross debarment will also have effect at the other MDBs. However, whilst the AIIB recognises the harmonised sanctionable practices contained in the Agreement (i.e. ‘fraudulent’, ‘corrupt’, ‘collusive’ and ‘coercive’ practices), it also casts its net wider than the other MDBs by listing three further prohibited practices, namely, ‘obstruction’, ‘theft’ and ‘misuse of resources’.

This announcement comes not long after President Jin Liqun of the AIIB stated publically at the European Financial Forum that he viewed the role of the AIIB as being that of steward of taxpayers’ money from many different countries – a position which requires the highest bar for integrity and compliance.

The AIIB has appointed Hamid Sharif to the post of Director General of its Compliance, Effectiveness and Integrity Unit (‘CEIU’) which has been set up to lead the charge against corruption on bank-financed projects. Sharif notes that:

“AIIB’s institutional arrangements creates increased accountability and transparency because I report directly to our Board of Directors as the head of the integrity unit. This creates an open channel that will improve the bank’s ability to react and deal with any suspicions of corruption or unethical behaviour in our projects”.

On 8th December 2016, the AIIB published its Policy on Prohibited Practices (the ‘Policy’) in which it made it clear that all parties are “to adhere to the highest ethical standards” whilst also creating the authority for the conduct of investigations by an Investigations Officer into allegations of prohibited conduct by parties who engage with the Bank. In the context of the AIIB Policy, ‘party’ means any party (and its respective officers, employees and agents), who:

  1. in the case of a Project financed by a Sovereign-backed Financing, is involved in such Project, including, inter alia, recipients of Financing, beneficiaries of technical cooperation, bidders, suppliers, contractors, subcontractors, consultants, sub- consultants, service providers, applicants, concessionaires and financial intermediaries; or
  2. in the case of a Project financed by a Non-sovereign-backed Financing, is involved in such Project, including, inter alia, borrowers, sponsors, recipients of Financing, beneficiaries of technical cooperation, bidders, suppliers, contractors, subcontractors, consultants, sub-consultants, service providers, applicants, concessionaires, financial intermediaries, guaranteed parties, and investee companies; or
  3. contracts with the Bank for advisory services to be performed by the Bank. 
  4. contracts with the Bank in relation to the Bank’s corporate procurement or any other matter not covered by the preceding three clauses, except for Bank Personnel.

Given the very significant impact that cross debarment can have on the ability of a company to do business, parties which find themselves under investigation, or which receive a Statement of Charges from an Investigation Officer or a Notice of Administrative Action from the Sanctions Officer should recognise that the way in which such matters are handled at the early stages can have a lasting impact on the case and a company’s future.

The lawyers at Bretton Woods Law are uniquely placed to deal with investigations, negotiated resolution agreements (‘NRAs’) and sanctions proceedings within the regimes of the multilateral development banks.

 

Jordan Howells
Barrister

Bretton Woods Law
jordanhowells@brettonwoodslaw.com

lecture_paris

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.

eu_law_news

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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World Bank Group v Wallace: International Organizations’ Immunities and their Involvement in the Fight Against Corruption

By | International Organisations, News, World Bank | No Comments

Was this a great victory or a near miss?

Much has been written about the recent Supreme Court of Canada (“SCC”) judgment World Bank Group v. Wallace.[1] Advocates of whistleblower rights and the anti-corruption community have declared this decision a clear stance in favour of whistleblower protection and a big win in the fight against corruption.

A further review of the decision and a close examination of the context in which the SCC was asked to rule reveals, however, a far more nuanced result. An examination of the underlying facts which led to the decision exposes certain shortcomings on the part of the World Bank Group (“WBG”) and the Royal Canadian Mounted Police (“RCMP”) collaborators. These shortcomings risk compromising the sanctity of international organizations’ immunities and that of the fundamental right of an individual to a fair trial. They also highlight the need for the implementation of clear protocols when domestic law enforcement and international organizations wish to collaborate. A review of the facts and context of this matter is necessary to allow an understanding of the actual issues arising in the case and the takeaways stemming therefrom.

 

I.  THE FACTS, THE POSITION OF THE PARTIES AND THE JUDGMENTS

A. The Facts

Kevin Wallace (“Wallace”), a former executive of SNC-Lavalin Group Inc. (“SNC-Lavalin”), is accused of one count of bribing foreign public officials under the Corruption of Foreign Public Officials Act (“CFPOA”).[2] Dating back to 2010, the World Bank Group’s Integrity Vice Presidency (“INT”)[3] received emails from four tipsters alleging that certain representatives (the “Accused”) of SNC-Lavalin were planning to bribe foreign officials in Bangladesh in order to obtain a contract relating to the construction of the Padma Multipurpose Bridge.[4] Following their own investigation, INT contacted the RCMP and exchanged various documents including their investigative reports and the tipsters’ emails, in an effort to assist the RCMP prosecute the Accused. Following this information exchange, the RCMP obtained wiretap authorizations in furtherance of obtaining direct evidence of the Accused’s involvement in the alleged corruption.[5]

Wallace intended to challenge the merits of the wiretap authorizations by way of a Garofoli Application[6], therefore he brought forth a pre-trial motion to the Ontario Superior Court of Justice requesting that the trial judge find that the two subpoenas he issued to WBG’s senior investigators were validly served. Moreover, he sought a third party production order by way of an O’Connor application[7], requesting access to certain WBG documents (“Archives”) that were relied upon by the RCMP to support their requests for the wiretap authorizations.[8]

 

B. The Lower Court’s Decision Under Appeal

The Ontario Superior Court of Justice authorized the Accused’s subpoenas to compel testimony of WBG’s senior investigators, Mr. Paul Haynes and Mr. Christopher Kim, and the third party production order of the Archives in the possession of the WBG in order to use these Archives as evidence in a motion to contest the wiretap authorizations. It is those decisions that were appealed to the SCC by the WBG.

It is thus critical to understand that this matter was before the SCC essentially on a procedural question: could Wallace obtain certain Archives and testimonies from the WBG in an attempt to attack the wiretap authorizations that the RCMP obtained, which wiretap authorizations were based on information stemming from the WBG collaboration? The questions were framed to the SCC, as follows: 1) whether the WBG could be subject to a production order issued by a Canadian court and 2) if so, whether in the context of a challenge to the wiretap authorizations pursuant to a Garofoli application, the Archives sought met the test for relevance.[9]

 

C. Position of the Parties

i. Wallace (One of the Respondents)
Counsel for Wallace argued that the materials sought from the O’Connor Application, within the context of a Garofoli Application, were likely relevant.[10] Moreover, they argued that there was no evidence that INT forms part of the WBG and therefore did not benefit from the immunities outlined in the Bretton Woods and Related Agreements Act.[11] Notwithstanding this and assuming that the immunities did apply to INT, they argued that the immunities were purely functional, not absolute.[12] Finally, they argued that the WBG implicitly waived its immunities through the conduct of the INT personnel.[13]

ii. World Bank Group (Appellant)
Counsel for the WBG argued that the information sought by the Accused from the O’Connor Application, within the context of a Garofoli Application, was not likely relevant. Moreover, they stated that INT forms part of the WBG and, as such, their immunities must be absolute in order to prevent undue interference in the operations of an international organization. Finally, counsel argued that archival immunity is not subject to waiver, while personnel immunity is subject to express waiver.[14]

iii. Interventions
Counsel for Transparency International argued the importance of enforcing immunities as they are essential in encouraging cooperation in fighting corruption and protecting whistleblowers.[15]

Counsel for the European Bank for Reconstruction and Development, the African Development Bank and other international organisations, argued that waiver of immunities must be done expressly and not implicitly. According to them, express waiver is the only way of protecting and ensuring uniformity of the status of international organizations from one jurisdiction to another.[16]

Counsel for the British Colombia Civil Liberties Association argued that implied waiver is necessary in certain circumstances in order to promote the accused’s right to full answer and defence.[17] Similarly, counsel for the Criminal Lawyer’s Association argued the importance of balancing international organizations’ immunities with the accused’s right to a fair trial. As such, international organizations’ immunities must be functional and can be waived. They also suggested remedial action in cases where production of documents could not be ordered.[18]

 

D. The Judgment of the Supreme Court of Canada 

The SCC ruled in favour of the WBG by stating that both their personnel and their Archives were protected by absolute immunities conferred to them in the Bretton Woods and Related Agreements Act.[19]  While archival immunity is not subject to waiver, personnel immunity is subject to express waiver.[20] In the present case, the SCC concludes that the WBG did not waive its immunity, as they always expressly reiterated that they provided the information without prejudice to its immunities.[21] Finally, the court concluded that even if the WBG did not possess immunities, the production order should not have been issued under Canadian law as the Archives sought were not deemed likely relevant under a Garofoli Application.[22]

 

II. LAW ENFORCEMENT COOPERATION AND THE RIGHT TO A FAIR TRIAL

There have been numerous articles about this decision being a hallmark case for the protection of whistleblowers and a victory for the global fight against corruption. While on its face it is tempting to jump to this conclusion, the actual judgment reveals that this case is not about whistleblower protection or corruption at all. Aside from an introductory passage from the SCC on the idea of corruption transcending borders and the necessity of worldwide cooperation in tackling this problem[23], the impacts of this decision on whistleblower protection and the fight against corruption are incidental at best.

Then, what is this case really about? At its core, this is a case that was born of the competing interests of an international organization’s foundational right of privileges and immunities and the relatively new quasi enforcement practices of integrity offices within these organizations.

Although in this specific matter, the WBG’s immunities are upheld and Wallace’s attempt to compel evidence is denied, we feel it is important not to lose sight of risks resulting from ad hoc collaboration between domestic law enforcement and international organizations like the WBG. Certain shortcomings on the part of the WBG and the RCMP collaborators created two important risks in this matter: (A) the potential miscarriage of justice through a denial of certain fundamental rights of the accused; and (B) the risk of compromising the immunities enjoyed by international organizations.

 

A. The Potential Infringement on the Fundamental Rights of the Accused

Section 11 of the Canadian Charter of Rights and Freedoms[24] states that an accused is presumed innocent until the prosecution proves beyond a reasonable doubt that he is guilty. Moreover, an accused is entitled to a fair trial, that includes the right to full answer and defence. As part of this right, Accused have the right to full disclosure of evidence by the prosecution.[25]

Applying this to the present case and perhaps stating the obvious, Wallace may very well be innocent with no violation of the CFPOA having been committed. At the outset, it should be pointed that calling this a win for anti-corruption efforts presumes the guilt of the Accused. The enthusiasm on the part of pundits should be tempered, at least until such time as the Accused has had the opportunity to be heard and tried.

Further, the RCMP played a significant role in the risk of the course of justice being perverted by failing to respect their own operational policies.[26] While the trial judge attempted to remediate this misconduct, it remains that there were deficiencies in the Stinchcombe[27] disclosure that may be prejudicial to the Accused, for example, the lost emails and missing notes from the RCMP affiant.[28]

Finally, while the SCC has confirmed the WBG immunities, it has not addressed the impact this will have on an accused’s right to a fair trial. The SCC has opened the door to that argument being raised by Wallace to the trial judge. The WBG may risk the course of justice being perverted by providing only the incriminating evidence to local law enforcement, while neglecting to provide the exculpatory evidence. As well, the level of enmeshment of the WBG in criminal prosecutions may have the adverse effect of throwing out a case instead of contributing to a successful prosecution. In the present case, the following outcomes are still possible:

  1. Conviction of Wallace based on the evidence provided;
  2. Acquittal of Wallace based on the evidence;
  3. Acquittal of Wallace on other grounds altogether, based perhaps on the RCMP’s investigative missteps resulting from Stinchcombe[29] disclosure deficiencies; or
  4. Acquittal of Wallace on grounds that the SCC’s decision to uphold the immunities of international organizations violates his right to receive all relevant material to his case and thus impedes his right to a fair trial.

Indeed, if Wallace raises this 4th argument successfully at trial, the chilling effect on future collaboration will be dramatic. Future accused, by being denied critical evidence in possession of the prosecution – due to international organizations’ immunities, may obtain acquittals based on the resulting denial of fundamental rights.

 

B. Jeopardizing Immunities 

This decision was being closely monitored the world over for precisely the following reason: Would a well respected high court rule in a manner which could weaken, even in the slightest, the privileges, exemptions and immunities afforded to and guarded so preciously by international organizations?

While the SCC confirmed that INT has absolute archival immunity not subject to waiver and absolute personnel immunity that is subject only to express waiver, it cannot go unnoticed that INT’s actions posed a threat to the immunities of international organizations. The Accused questioned INT’s archival immunity since they were willing to provide hundreds of documents to the Crown, however, they were opposed to providing certain documents to the defence.[30] Moreover, the Accused questioned INT’s personnel immunity since they were willing to accept subpoenas from the Crown and testify in court. However, while they accepted a subpoena from the defence, they later refused to be bound by it.[31] At the SCC, the WBG argued primarily on the importance of absolute immunities and stated that they never waived their personnel immunity, as they always replied by stating that they were accepting the subpoenas subject to their privileges and immunities.[32]

Although the SCC deemed this method as being sufficient in the protection of their immunities[33], it should be noted that the WBG seemed to be prioritizing and even showing favouritism to the Crown’s case by assisting them in any way they could. Though the decision was rendered in favour of the WBG and immunities were upheld much to the relief of international organizations, it should be viewed by international organizations as a near miss rather than a great victory. International organizations would be doing themselves a disservice if they don’t recognize the precarious situation that INT’s actions put the WBG in and do a post mortem to ensure immunities are not put in peril in the future.

 

 

 III. POINTS OF CONSIDERATION FOR LOCAL LAW ENFORCEMENT AND INTERNATIONAL ORGANIZATIONS

A balance must be achieved between the protection of international organizations’ immunities, their willingness to cooperate in national law enforcement files and the fight against corruption. To what extent can the WBG provide information to local law enforcement while nonetheless being immune from any type of production order or subpoena? How can INT ensure that their immunities are never put into question again?

International organizations are well positioned to lead the fight against corruption. Their raison d’être places them at the nexus between private industry and government agencies of developing countries often high on the corruption index. Cooperation and information exchanges must be carefully managed to support domestic law enforcement initiate prosecutions in a matter so as not to infringe the basic right of the accused to a fair trial, failing which, the accused’s right to full answer and defence may be compromised and the related prosecution jeopardized. The following are points that should be considered by domestic law enforcement and international organizations when they wish to collaborate.

 

1) Establishing clear protocols for disclosure of information between International Organizations and local law enforcement

The international organization should create a hermetic investigative file and limit channels of communication with local law enforcement in order to shield its investigators from being pulled into domestic criminal cases. International organizations may even consider going as far as limiting disclosures to a single written submission.

 

2) Ensure protection of immunities by employing a consistent approach when engaging with third-parties

To bolster personnel immunity, international organizations must be consistent in their approach when faced with a subpoena request. All subpoena requests should be rejected at the outset on grounds that accepting a subpoena goes counter to the inviolable right to personnel immunity. The handling of the subpoena in the Wallace case was hasty and exposed personnel immunity to an unnecessary challenge. The SCC upheld the immunity but a proactive and disciplined approach internally would have avoided the challenge altogether. This can be achieved through clear internal policies and standard operating procedures instructing personnel on how to handle judicial orders.

Additionally, while their involvement is of assistance in international criminal prosecutions, international organizations must not completely enmesh themselves with the investigation. The WBG should be reminded that, in the absence of their ability to prosecute, they must allow domestic law enforcement and public prosecutors to independently fulfill their respective roles.

 

3) Recognize the difference between the burden of proof between international organizations’ sanctioning practices and criminal prosecutions

Domestic law enforcement, and particularly Canadian agencies such as the RCMP, the Canadian Competition Bureau, the Sureté du Québec’s Unité Permanente Anti-Corruption, the Ontario Provincial Police and others,should understand that the investigative findings of international organizations are not held to the standard of proof of beyond a reasonable doubt, required in a criminal prosecution. INT, for example, when dealing with sanctions cases, relies on a standard of proof akin to civil matters in its prosecution of files within the WBG, i.e., on a balance of probabilities, and INT, just as most enforcement functions of other international organizations, will base its cases on proof that does not meet the higher evidentiary standards of criminal prosecutions. As against that, international organizations’ investigative units do not have broad, intrusive, domestic law enforcement rights to search, seize, detain or compel evidence from third parties. As such, collaboration between international organizations and domestic law enforcement can lead to a perfect storm where certain allegations brought forth in a quasi-prosecutorial forum with a lower burden of proof, are relied on to obtain criminal investigative powers such as wiretaps or searches. It is the prosecutor’s duty to present this in a neutral position to the judge hearing requests for such ex parte authorizations. Having this element discussed explicitly at the authorization stage and fleshed out by the judge may shield it from future scrutiny on this issue at trial.

 

4) Domestic law enforcement must respect their own operational policies

Finally, and most evidently, the RCMP must respect its own operational policy by listing document exchanges, meetings and telephone calls as well as document and preserve all written requests and designate key points of contacts at the outset of the collaboration with the international organisation.[34] In the event that an RCMP Sergeant presents an affidavit, primarily based on the information provided by investigators of an international organization, the RCMP must ensure that all the statements declared can be disclosed and proved to the defence. The RCMP must look at the information coming from the international organization in a manner akin to any allegation received from the public and refrain from becoming overly reliant on it in its own investigations and prosecution.

 

 IV. CONCLUSION

There remains a possibility that Wallace benefit the most from the outcome of this judgment. The real consequence of this decision will only be understood at the conclusion of this trial. If the trial judge does not address the SCC’s judgment as a foundation for Wallace’s acquittal, then this judgment will leave us with nothing more than a clear pronouncement on the standard to meet for an applicant to successfully obtain documents from law enforcement when attacking a wiretap authorization, as well as a good obiter discussion on the question of international organizations’ immunities.

Regarding whistleblowers, upholding the immunities of the international organizations may appear at first glance to be useful in protecting the identities of the tipsters, as international conventions encourage or mandate domestic whistleblower protection. For example, The United Nations Convention Against Corruption[35] suggests that states consider adopting appropriate measures to protect whistleblowers. The Organisation for Economic Co-Operation and Development[36] also has numerous guidelines and recommendations promoting and encouraging states to create adequate whistleblowing protection mechanisms. Transparency International has been a strong vocal advocate of such measures for years.

We are strongly supportive of such measures and note despondently that Canadian legislation on whistleblowing protection is woefully deficient. However, it is not in the upholding of international organizations’ immunities that the court can compensate for the lack of clarity in domestic law. International organizations must protect whistleblowers under their rules and whistleblowers should be protected whether they are in a matter involving international organizations or not. International organizations’ immunities were never intended, and should not be construed as a de facto whistleblowing protection policy.

Whichever way this case unfolds, one thing remains clear from the present facts: if collaboration between international organizations and law enforcement is to strengthened, international organizations and domestic law enforcement would be wise to review their current modus operandi in light of this decision and consider implementing improved measures.

Co-written by:

Ayman Daher, Partner at Bretton Woods Law Canada

Mr. Daher works in the fields of anti-bribery and anti-corruption, compliance and investigations related disputes and and regulatory and quasi-judicial sanctions cases.

Alan Sarhan, Partner at Bretton Woods Law Canada
Mr. Sarhan is active in the field of in Multilateral Development Banks sanctions, business integrity crisis prevention and anti-corruption and bribery legislation.

In collaboration withJessica Lee Moye, Student-at-Law at Bretton Woods Law Canada.

Ms. Moye attends the Faculty of Law at the University of Sherbrooke, graduating in the Summer 2017.

 

[1] World Bank Group v. Wallace, 2016 SCC 15.
[2] Corruption of Foreign Public Officials Act, S.C. 1998, c.34.
[3] World Bank Group v. Wallace, prec., note 1, par. 13, 50: The INT is an integrity office that forms part of the WBG, “responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the WBG.
[4] Id., par. 11,14.
[5] Id.,par. 16.
[6] Id., par. 100,116, 120;R. v. Garofoli, [1990] 2 S.C.R. 1421: A Garofoli Application is a motion brought to challenge the admissibility of a wiretap authorization. In the present case, the Accused is seeking to challenge wiretap authorizations by demonstrating that Sergeant Jamie Driscoll (the “affiant”) from the RCMP, knew or ought to have known that there were errors or omissions in the affidavits he drafted in order to obtain the authorizations.
[7] Id., par. 112-113, 116; R. v. O’Connor, [1995] 4 S.C.R. 411: An O’Connor Application is a motion brought to obtain Archives that are in the hands of third parties “third party production order”. The Accused has the burden of proof of demonstrating that the requested Archives are “likely relevantto an issue at trial, such as the credibility or reliability of a witness to testify […] that will have a direct impact on the guilt or innocence of the accused”.
[8] Id., par. 124; In the present case, the Accused is seeking a third party production order (O’Connor) from the WBG in order to use the Archives to contest the wiretap authorizations (Garofoli).  Therefore, in this context, the Accused has a narrower burden of proof of demonstrating that the requested Archives are likely relevant in indicating that the affiant knew or ought to have known of certain errors or omissions in the affidavits drafted to obtain the wiretap authorizations.
[9] Id., par. 23.
[10] Id., par. 35.
[11] Id., par. 36.; Bretton Woods and Related Agreements Act, R.S.C. 1985, c.B-7.
[12] Id., par. 37, 56: “Functional Immunity is one that only applies when it has been specifically demonstrated that the immunity is necessary for the organization to carry out its operations and responsibilities […], [whereas Absolute Immunity] is not subject to this case-by-case determination of functional necessity”.
[13] Id., par. 37.
[14] Id., par. 32-33,56; Factum of the Appellant, World Bank Group, SCC File No. 36315, par. 105.
[15] Id., par. 39.
[16] Id.
[17] Id., par. 40.
[18] Id.
[19] Id., par.48,59; Bretton Woods and Related Agreements Act, prec., note 11.
[20] Id., par. 82,87,90.
[21] Id., par. 95.
[22] Id., par. 100.
[23] Id., par. 1.
[24] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, art. 11.
[25] R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[26] Factum of the Respondent, Kevin Wallace, SCC File No. 36315, par. 37.
[27] R. v. Stinchcombe, prec., note 26.
[28] Factum of the Respondent Kevin Wallace, prec., note 27, par. 18,37-39; World Bank Group v. Wallace, prec., note 1, par. 18, 110.
[29] R. v. Stinchcombe, prec., note 26.
[30] Factum of the Respondent Kevin Wallace, prec., note 27, par. 2, 117.
[31] Id., par.3,21,58,62-64,67, 137, 140.
[32] Id., par. 62.
[33] World Bank Group v. Wallace, prec., note 1, par. 95.
[34] Factum of the Respondent Kevin Wallace, prec., note 27, par. 37.
[35] United Nations Convention Against Corruption, 31st October 2003, art. 33, online:
https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf.
[36] The Organisation for Economic Co-Operation and Development,“Recommendation on Guidelines for Managing Conflict of Interest in the Public Service”, June 2003, online: http://www.oecd.org/governance/ethics/2957360.pdf.