antje_conf_news_2

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.
int_events_opportunities

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 > 

indiv_law

The Individual in International Law: Perspectives from International Human Rights Litigation

By | Human Rights, International, News | No Comments

Date: Thursday 17 March
Time: 16.30 -18.00
Venue: SW1.17, Somerset House East Wing, Strand Campus

Traditionally, individuals have been the “objects” of international law and not”subjects”. This is not the case anymore. Individuals now have an enhanced status in the international legal sphere, and at the least, are now genuine participants in the international legal order. How is this enhanced status reflected in practice?

In this presentation, having regard to his doctoral topic and practice as an international lawyer, Rishi Gulati will discuss certain regimes of law where individuals have standing in international law.

First, he will briefly discuss his experiences in representing clients at the Human Rights Committee and the Committee Against Torture, focusing on some due process issues. Second, he will canvass issues around individual access to a court vis-à-vis disputes between International Organisations (IOs) and individuals, with particular reference to the problematic regime on IO immunities. Finally, he will make some brief observations as to how the theoretical discourse on the individual’s status in international law is being reflected in practice.

Speaker bio: Rishi Gulati is a Dickson Poon Scholar of Law at King’s College London(2015-18),undertaking a PhD in the area of international dispute resolution under the supervision of Dr Philippa Webb. As part of his PhD, Rishi also focuses on enhancing access to justice for individuals vis-à-vis disputes with International Organisations.Rishi has previously worked as an International Lawyer for the Australian Government. As a Barrister, he has represented clients before several international tribunals and fora, including the UN Human Rights Committee and the Committee Against Torture. He is also an Academic Expert at a leading public international law Barristers’ Chambers, Bretton Woods Law.

To reserve a seat, please register here >

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Rishi Gulati Presents on Immunities of International Organisations and Access to Justice at the Max Planck Institute of Public and International Law

By | International Organisations, News | No Comments

On 24th February 2016, Rishi Gulati, Australian Barrister and Academic Expert at Bretton Woods Law, gave a presentation at the Max Planck Institute for Public and International Law in Germany. The presentation concerned the latest developments on the law of the immunities of International Organisations focusing on access to justice. The presentation was very well received. Various matters were discussed in the presentation and the Q&A session, including the ongoing Haiti Litigation in US courts.

Find out more >

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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 | One Comment

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.

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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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BREAKING NEWS

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

The African Development Bank with BWL Assistance Settles Sanction Case with Hitachi Ltd of Japan

The African Development Bank (“AfDB”) has today announced in Abidjan that it has entered into a Settlement Agreement with Hitachi Ltd of Japan, which brings to an end the three-year investigation undertaken by the AfDB’s Integrity and Anti-Corruption Department (“IACD”).  IACD had alleged that two Hitachi companies – the German based Hitachi Power Europe GmbH (“HPE”) and its South African subsidiary Hitachi Power Africa (Pty) Ltd (“HPA”) – had engaged in sanctionable practices in order to be awarded in South Africa in 2007 the AfDB financed Medupi Power Station Boiler Works Contract.

BWL’s Lee Marler, Neil Macaulay and Alex Haines have represented IACD in this matter for the past two years and an international BWL team instructed by IACD (and comprised of Marler, Macaulay, Alan Sarhan and Ayman Daher (the latter two from BWL Canada)) will now proceed to assist Hitachi Ltd in fulfilling its settlement obligations to the AfDB.

The full text of today’s AfDB press release reads as follows:

“Abidjan, Côte d’lvoire Wednesday, 2nd December 2015 – The African Development Bank Group (“AfDB”) announces that on 2nd November 2015 it concluded a Settlement Agreement with Hitachi, Ltd.  (“Hitachi”) of Tokyo, Japan.

The Settlement Agreement follows a three year investigation by the AfDB’s Integrity and Anti-Corruption Department (the “IACD”) into allegations of sanctionable practices by certain Hitachi subsidiaries on the AfDB financed Medupi Power Station Boiler Works Contract in the Republic of South Africa. The IACD alleged that at the material time Hitachi Power Europe GmbH (“HPE”) based in Germany and its South African subsidiary, Hitachi Power Africa (Pty) Ltd (“HPA”), engaged in sanctionable practices in order to be awarded the boiler works contract.

The AfDB acknowledges that Hitachi and its affiliates co-operated fully and openly with the IACD investigation, and that Hitachi was determined throughout to maintain its good relations with the AfDB and to protect the integrity of the Medupi project.  Despite their differences, both parties shared a desire to resolve the current difficulties by way of settlement.

Due in part to the high level of assistance provided to the IACD by Hitachi, the AfDB has agreed to impose the sanction of debarment for twelve months with conditional release upon HPE and HPA, the two companies at the centre of the IACD investigation.  Debarment will be terminated as soon as Hitachi enhances its integrity compliance programme to the standard set by the AfDB’s Integrity Compliance Guidelines.  Moreover, Hitachi has voluntarily agreed (1) to make a substantial financial contribution to the AfDB, which will be used to fund worthy anti-corruption causes on the African continent; and (2) to co-operate with the IACD on a variety of matters, including enhancing where necessary its existing integrity compliance programme referenced above.

The sanctions imposed under the settlement agreement reflect the level of cooperation provided by Hitachi, Ltd. in the investigation of the Medupi matter, for which the IACD is grateful”, said Anna Bossman, Director of the IACD.  “Hitachi has shown by its actions that it is committed to doing business in an ethical manner and the IACD believes in giving credit for such dedication.  As I have said before, the IACD is ever willing to resolve amicably allegations of sanctionable practices with companies that show a sincere commitment to integrity, who collaborate in the resolution of allegations and who elect to enhance their compliance polices and procedures.

On 30th October 2007, Eskom awarded the AfDB financed Medupi Power Station Boiler Works Contract for the design, manufacture, supply, erection and commissioning of six coal fired steam generator units at its Medupi plant at Lephalale in the Limpopo Province of South Africa to the consortium of HPE and HPA.  Mr Johann Benöhr led the IACD investigation with support from Ms Funmilayo Akinosi and Mr Simeon Obidairo.  Lee Marler, Neil Macaulay and Alex Haines of Bretton Woods Law, London represented the IACD.”

Separately, Hitachi Ltd also settled on 28th September 2015 with the United States’ Securities and Exchange Commission (“SEC”) and its press release of the same day, in which it acknowledged the assistance provided by IACD and by implication BWL, reads as follows:

“Washington D.C., Sept. 28, 2015 — The Securities and Exchange Commission today charged Tokyo-based conglomerate Hitachi, Ltd. with violating the Foreign Corrupt Practices Act (FCPA) when it inaccurately recorded improper payments to South Africa’s ruling political party in connection with contracts to build two multi-billion dollar power plants.

Hitachi has agreed to pay $19 million to settle the SEC charges.

The SEC alleges that Hitachi sold a 25-percent stake in a South African subsidiary to a company serving as a front for the African National Congress (ANC).  This arrangement gave the front company and the ANC the ability to share in the profits from any power station contracts that Hitachi secured.  Hitachi was ultimately awarded two contracts to build power stations in South Africa and paid the ANC’s front company approximately $5 million in “dividends” based on profits derived from the contracts.  Through a separate, undisclosed arrangement, Hitachi paid the front company an additional $1 million in “success fees” that were inaccurately booked as consulting fees without appropriate documentation.

“Hitachi’s lax internal control environment enabled its subsidiary to pay millions of dollars to a politically-connected front company for the ANC to win contracts with the South African government,” said Andrew J. Ceresney, Director of the SEC’s Enforcement Division.  “Hitachi then unlawfully mischaracterized those payments in its books and records as consulting fees and other legitimate payments.”

According to the SEC’s complaint filed in U.S. District Court for the District of Columbia:

  • Hitachi was aware that Chancellor House Holdings (Pty) Ltd. was a funding vehicle for the ANC during the bidding process.
  • Hitachi nevertheless continued to partner with Chancellor and encourage the company to use its political influence to help obtain government contracts from Eskom Holdings SOC Ltd., a public utility owned and operated by the South African government.
  • Hitachi paid “success fees” to Chancellor for its exertion of influence during the Eskom tender process pursuant to a separate, unsigned side-arrangement.

Hitachi’s misconduct violated the books and records and internal accounting controls provisions of the federal securities laws, specifically Sections 13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934.

Without admitting or denying the SEC’s allegations, Hitachi agreed to a settlement that would require the company to pay a $19 million penalty, and it would be permanently enjoined from future violations.  The settlement is subject to court approval.

The SEC’s investigation was conducted by Jon Jordan and Thierry Olivier Desmet of the FCPA Unit in Miami with assistance from Kathleen Strandell, David S. Johnson, and Matthew P. Cohen.  The SEC appreciates the assistance of the Justice Department’s Fraud Section, the Federal Bureau of Investigation, the Integrity and Anti-Corruption Department of the African Development Bank, and the South African Financial Services Board.

“We particularly appreciate the assistance we received from the African Development Bank’s Integrity and Anti-Corruption Department and hope this is the first in a series of collaborations,” said Kara Brockmeyer, Chief of the SEC Enforcement Division’s FCPA Unit.””

BWL barristers are renowned experts in the sanctions procedures operated by the world’s multilateral development banks (“MDB’s”), such as the African Development Bank (“AfDB”), the Asian Development Bank (“AsDB”), the Inter American Development Bank (“IADB”) and the World Bank Group.

Lee Marler, BWL’s co-head of Chambers, is quoted as saying that “we are very proud to be IACD’s standing counsel and we are delighted to have assisted the Department these past years in bringing the Medupi case to a successful conclusion, but we are equally proud to be able to represent our other clients before the anti-corruption units, sanctions boards and committees of the other MDBs.  Our strength is our depth of knowledge and unparalleled experience, for at BWL we prosecute for the AfDB but defend everywhere else and it is this rich mix that serves to ensure that we give balanced and objective advice to all of our MDB clients”.

The BWL MDB team can be contacted at enquiries@brettonwoodslaw.com