Yearly Archives

2012

Oct 02
0

Bretton Woods Law to speak at UNSU-ICTY seminar – Download Presentation

By | Administrative Law, Civil Servants, International, International Administrative Law, News | No Comments

Download Presentation

Bretton Woods Law are proud to have been asked to speak on International Administrative Law at the UNSU-ICTY seminar on Wednesday 3rd October. We will be holding an open forum with senior Staff Association members, where the law’s shortfalls and possible improvements will be discussed.

Topics will include:

  • Equality of arms
  • Clarity of the law
  • Confidentiality of proceedings
  • Capping of Awards
  • Staff Associations – independence and industrial action
  • Executive Heads – reviewing the lawfulness of their own decisions
  • The roles and actions of lawyers for the organisation
  • Mandatory mediation
  • Ignoring the organisation’s internal law
  • Suspension of administrative decision

We hope that, what promises to be a lively and informative discussion, will help shape the much needed improvements and additions to this area of law.

If you are unable to attend the UNSU-ICTY seminar in person, but have a need for legal advice concerning an employment issue within an international organisation, please go to www.brettonwoodslaw.com/brettonwood_site to contact your nearest office.

Aug 30
1
fraudulent practice

Multilateral Development Banks (MDB) – Dos and Do Nots

By | Bribery, Corruption, Cross debarment, Debarment, Development Banks, Fraud, Multilateral Development Banks, News, Sanctions, Sanctions Board | No Comments

The MDB community is comprised in the main of the African Development Bank (AfDB), the Asian Development Bank (ADB), the European Bank for Reconstruction and Development (EBRD), Inter-American Development Bank (IDB) and the World Bank Group.  Each MDB is an international organisation created by treaty and each is mandated by its Member States to ensure that the funds that the organisations lend reach their intended destination.  As such, each MDB has created an investigative office whose function it is to ‘police’ MDB funded projects in order to prevent or stop incidences of fraud, corruption, collusion and coercion (“the Sanctionable Practices”).  The MDBs have all developed an internal ‘administrative’ apparatus for prosecuting companies and individuals accused of having engaged in Sanctionable Practices on MDB financed projects.  Entities found guilty by the MDBs risk debarment (i.e., they will be prohibited from bidding on MDB funded projects for a period of time) and face referral to national prosecutorial authorities.

The following list of ‘Dos and Do Nots’ is intended to assist companies and individuals in their dealings with the MDBs:

The Dos

Do remember that companies and individuals can be debarred either indefinitely or for a set period of time by the MDBs for engaging in Sanctionable Practices on projects that they finance.

Do recall that the default sanction for a company with no prior convictions by the MDBs is a three-year debarment with conditional release, which means that the company will not be released to bid again until it can demonstrate that it has improved its corporate compliance and governance position.

Do appreciate that most MDBs publish the names of those that they have debarred for fraud and corruption, which can have dire and long-lasting consequences for the reputations of those companies and will seriously harm its chances of winning work funded by non-MDB sources as well.

Do realise that the presumption of innocence does not apply and that the World Bank can impose a six-month ‘temporary suspension’ before even formally accusing a company of having engaged in a Sanctionable Practice.

Do be cognisant of the fact that the MDBs do not have any jurisdiction over public officials; just companies and individuals who have bid upon and who have been awarded MDB funded projects.

Do be aware that the jurisdiction of the investigative offices of the MDBs stems from the ‘triangular’ contractual arrangements between lender (MDB), borrower (usually a government) and the contractor (the successful bidder).

Do ensure that bids submitted on MDB financed projects are entirely accurate and defensible.

Do ensure that you are aware of the risks of doing business in certain countries and, to this end, do consult at a minimum Transparency International’s Corruption Perception Index.

Do avoid using agents in countries in which you operate and do undertake credible due diligence checks on the consultants and contractors that you engage.

Do train your staff routinely and regularly on how to identify and avoid being drawn in to a Sanctionable Practice, as well as the potential repercussions for doing so.

Do appreciate that some MDBs, most notably the World Bank, will enter into plea arrangements known as Negotiated Resolution Agreements, whereby any likely sanction will be reduced for a guilty plea and an undertaking to assist the MDB.

Do be aware of the 9th April 2010 Agreement for Mutual Enforcement of Debarment Decisions under which a company debarred for longer than one year by one MDB will be debarred by them all, which can and most likely will deter organisations, national aid agencies and government departments from dealing with you.

Do act swiftly and instruct a lawyer who has established expertise in MDB debarment work the very moment you appreciate that you are at risk of sanction.  The earlier that a lawyer is engaged the better.

Do realise that a company’s corporate compliance structure should meet with the minimum requirements set by the World Bank’s Integrity Compliance Guidelines.

Do provide a copy of this document to your Compliance Officer.

 

The Do Nots

Do not be tempted to engage in any form of Sanctionable Practices on MDB financed projects, for it is likely that your act or omission will be discovered.

Do not pay success fees, other similar commissions or facilitation payments, for the MDBs will treat such payments as bribes.

Do not inflate or otherwise alter CVs in bids submitted on MDB financed contracts, for this can and most likely will amount to a fraudulent practice.

Do not engage with investigative offices of the MDBs, such as the World Bank’s Integrity Vice Presidency (INT) unless you have first spoken with a lawyer qualified to advise on MDB debarment matters.  The first approach from the MDB might be the issuance of an Audit Letter under which it requests sight of the company’s books and records pursuant to contractual obligations owed by the company to the borrower.

Do not allow yourself to be interviewed by MDB officers as a ‘suspect’ or ‘subject of an investigation’ in the absence of a suitably qualified lawyer instructed by you and do not disclose any documents.

Do not admit liability for a Sanctionable Practice until your lawyer has advised you on the merits and consequences of doing so.

Do not forget that the investigative offices of the MDBs regularly share information between themselves.

Do not ignore any notices received from the MDBs, such as a Notice of Temporary Suspension or a Notice of Sanctions Proceedings issued by the Evaluation and Suspensions Officer of the World Bank.

Do not forget that only the World Bank operates a quasi-judicial system for handling accusations of Sanctionable Practices, the other MDBs, such as the ADB, operate a ‘star-chamber.’

Do not consider entering into an MDB voluntary disclosure programme in the absence of first consulting a suitably qualified lawyer.

Do not forget that some MDBs, such as the World Bank, can sanction a company for a failure to co-operate with its investigators (known as an Obstructive Practice) such as where a company refuses to honour an audit clause in its contract with the borrower that permits MDB investigators to review its books and records.

All of the lawyers practising at Bretton Woods Law are experts in international organisations law, including the sanctions regimes operated by the various MDBs.  They regularly accept instructions to defend companies and individuals accused by the MDBs of having engaged in Sanctionable Practices.

If you think you could benefit from some truly international legal expertise, please click here to contact your nearest office

 

Jul 23
0

What it takes to be truly international set of chambers

By | Administrative Law, Civil Servants, Cross debarment, Development Banks, International, Multilateral Development Banks, News | No Comments

Describing yourself as international is easy, demonstrating it takes a bit more hard work.

Bretton Woods Law deals with international clients on a daily basis, they could be talking to a multinational company accused of sanctionable practices by a multilateral development one moment and then an international civil servant with employment issues the next. So how do they ensure they offer the best possible legal advice to people from different cultures and countries?

 Language

It is easy to get your website and brochures translated, but what happens when you get someone contacting you and you can’t actually speak their language, even though the website infers you can? Bretton Woods Law has taken the trouble to employ legal professionals who are fluent in French and Spanish, as with so many international organisations being located in countries that speak these languages, it seemed only sensible and more importantly… polite.

 Cultural sensitivity

They say there is no substitute for real experience, and Bretton Woods Law would attest to this. Lee Marler, a lead counsel at Bretton Woods Law previously worked internationally as a lawyer across the globe, including America, Australia, Bosnia, East Timor, Kosovo and Palestine. He also worked as a lawyer for the United Nations, the European Bank for Reconstruction and Development and the World Bank Group. Lee’s international exposure is matched, by fellow lead counsel Neil Macaulay, who has worked as a lawyer in such diverse places as Germany, Cyprus, Bosnia, US, Philippines and the Turks and Caicos Islands.

This vast cross cross-cultural experience reinforced Lee and Neil’s belief that for any set of chambers to be truly international, they must understand that each culture has their own particular value and beliefs, and as such need to be respected and understood if you are going to succeed.

It is this cultural empathy that runs throughout Bretton Woods Law that could account for their success rate. Whether they are representing an international civil servant with employment issues or an international company facing debarment by a multilateral development bank – each individual at Bretton Woods Law has the ability to put themselves in their clients’ shoes, professionally, emotionally and of course culturally.

If you think you could benefit from some truly international legal expertise, please click here to contact your nearest office

 

Jun 29
0

UN fails to protect whistleblowers: the importance for International Civil Servants of protection by independent legal counsel.

By | Derecho Administrativo, Disputas Laborales, Funcionarios Públicos, News | No Comments

UN, NEW YORK

The United Nations Dispute Tribunal has found the international organisation’s mechanisms for dealing with whistleblowers to be so “fundamentally flawed” that they fail to protect the basic rights of its employees.  In its ruling in the case of Wasserstrom (judgment to be published), the Tribunal held that the UN Ethics Office failed to protect the applicant against reprisals from his bosses.  James Wasserstrom, an American diplomat, was sacked and then detained by UN Police, who proceeded to ransack his flat, search his car and post his picture on a wanted poster after he expressed suspicions in 2007 about corruption in senior ranks of the UN Mission in Kosovo.

The clear lack of protection for UN staff members encapsulated in this case is confirmed by the statistics.  The Guardian (27th June 2012) cites statistical analysis by the Washington based Government Accountability Project (GAP), which found that out of 297 cases in which whilstleblowers complained of retaliation, the Ethics Office fully sided with the complainant once in six years.  Statements made by GAP confirm the importance for international civil servants of seeking independent legal advice and protection when they find themselves in the position of whilstleblower.  Bea Edwards, GAP Executive Director remarked:

“Like any internal office in an international institution, it is always subjected to huge pressures from above.”  She continued, “It is very difficult for an official employed by the institution to be impartial”.

It is a view which is confirmed by the experience of the team at Bretton Woods Law: the rights of, and the protections afforded to, individuals working within international organisations are all too often subjugated by realpolitik.

Indeed, the attitude of those within the UN towards whilstleblowers was succinctly summed-up by Wasserstrom who remarked:

“I was told at some point in the whole process that the UN didn’t want a ‘culture of snitches’.  What has grown up instead is a culture completely insulated from reality.  It’s a culture of impunity.”

As well as raising concerns about staff exposure to fundamental failings in the UN system, the case is also of assistance to those seeking redress as it adds validity to the approach of directing such grievances to the Secretary General, as the office-holder with ultimate responsibility for the Ethics Office.

If you have concerns about whilstleblowing, contact Bretton Woods Law for impartial confidential advice.

Jun 28
0
multilateral development banks

World Bank Sanctions Board takes steps to improve transparency

By | Development Banks, International, Multilateral Development Banks, News, Sanctions, Sanctions Board, World Bank | No Comments

In an effort to improve transparency, the World Bank recently took the step of publishing the judgments of its Sanctions Board online

The decision to publish judgments is a positive one in several regards. Firstly, it enables companies to learn of the type of behaviour that can be construed as falling within the provisions prohibiting fraudulent, corrupt or collusive practices arising during the bidding process or the execution of a Bank-financed contract. Secondly, the sanctions process and reasoning behind rulings is made public, permitting parties to gain some insight into what to expect if they are asked to respond to an accusation, as well as the range of penalties such offences attract.

The publication of decisions further ensures that the Bank is compliant with its obligations under international public law. The requirement to publish judgments in a suit at law is specifically referred to in Article 14 of the International Covenant on Civil and Political Rights 1966, to name but one treaty ratified for the protection of human rights, but also falls within the wider fundamental principle of access to justice. Although any World Bank sanction is purely administrative, the Sanctions Board is an organ of an international organisation (itself the product of an international treaty), with a quasi-judicial function. It fulfils the role of upholding the internal laws of the Bank and the contractual obligations incumbent upon participants in the bidding process not to indulge in sanctionable practices. The Sanctions Board is therefore regulated not only by its internal laws but also the fundamental general principles of international law.

This is a development which is certainly to be welcomed and it is hoped that the Sanctions Board will, in time, publish all of its previous decisions as well as those handed down after the change in policy.

If you are concerned that you or your company may have committed a sanctionable practice Bretton Woods Law can investigate the matter on your behalf, advise you in confidence whether you have a defence, such as bona fide mistake or “rogue employee,” and suggest how best to proceed. To contact your nearest office please click here.

Jun 26
0
Fraud

Square peg in a round hole – lawyer or accountant?

By | Corrupción, News | No Comments

Question: When companies realise they have a corruption and/or compliance issue – who should they call?

Answer: The person who can serve them best.

Admittedly a rather simplistic answer to a more complex question, but in truth the reality is that simple. These two professions obviously have advantages specific to their skill set, and the best solution is to identify the exact nature of your compliance and corruption problem and then hire the appropriate professionals. Obviously depending on the particular nature of the case, it could be wise to actually employ both, but ensure each is approaching the problem from the angle that best suits their skills.

So why a lawyer over an accountant? Lawyers are obviously trained to understand and interpret the law and to evaluate evidence; all of which are essential skills when dealing with accusations from, for example, the World Bank that a company or its employees have engaged in fraudulent or corrupt practices on Bank financed contracts.  But what truly sets lawyers apart from other professionals, such as accountants or former law enforcement officers, is that Legal Professional Privilege (LPP) attaches to communications between them and their clients.  LPP means that communications between a client and his lawyer in respect of giving or receiving legal advice cannot be disclosed by the lawyer in the absence of the client’s permission; such communications are in general sacrosanct.  In contrast, communications between a client and his accountant or for that matter any professional other than a lawyer are not privileged and may result in the non-lawyer having to disclose or report to others what he finds.

The benefits of LPP are multi-fold, but primarily this privilege engenders free-flowing communication between all parties involved, which helps speed up resolution and ensures confidentiality. This ability to have honest and open discussions should not be under-valued, as it is vital to a company’s future success, as it fast-tracks problem solving and putting the appropriate procedures in place to limit any further corruption within the company.

Accountants and former law enforcement officers are of course vital resources at times, they are highly skilled at flagging up suspicious transactions, accounts and offices, and can also assist in improving a company’s compliance programme. Yet the ability to talk freely is probably the strongest tool a company has for uncovering and fixing any corruption issues they might have, and without it the consequences could prove to be a lot more serious.

In short, when faced with corruption and compliance issues emanating from the multilateral development banks, such as the World Bank Group, go to a lawyer who specialises in the relevant field, such as those found within Bretton Woods Law.

May 22
0
debarment and sanctions

All change at EBRD

By | Funcionarios Públicos, News, Sin categorizar | No Comments

After a long campaign, the new President of the European Bank for Reconstruction and Development has been revealed to be Sir Suma Chakrabarti.  This result signals possible interesting changes at the Bank, as this will be the first time since the Bank was set up 21 years ago that the President is not French or German.  Sir Suma has obviously had a highly illustrious career to date, currently as the most senior civil servant in the British Ministry of Justice and previously as the head of the UK’s Department of International Development.

We look forward to seeing what impact this new President will have on the employees of EBRD, once he takes up his new position on 3rd July.

May 21
0

SP – Time waits for no one – especially not International Civil Servants

By | Derecho Administrativo, Disputas Laborales, Funcionarios Públicos, News | No Comments

More often than not, when International Civil Servants come knocking on our door, seeking employment advice, we are alarmed by their lack of knowledge regarding their employment status and rights. The fact that they are often unaware that they are subject to International Administrative Law, the law that operates between International Civil Servants and their employer, and not domestic employment laws, is just one such example.

Why there is such a dearth of understanding is debatable, but we felt it might be useful to compile a brief list of basic ‘do’s and do not’s’, for when/if International Civil Servants find themselves in difficulties with their employer. This is by no means an exhaustive list, and we would encourage anyone facing HR issues to contact legal specialists, such as members of Bretton Woods Law as quickly as possible – because as the title suggests in these situations time is of the essence

The Do’s

  1. Do make yourself aware and be confident of your rights and, indeed, your obligations under the internal law of the organisation that you work for (e.g., read the Staff Regulations, Staff Handbook, and the rules and procedures associated with your organisation’s internal justice mechanism).
  2. Do act quickly if you have a complaint, for you may only have a short period of time in which to file.
  3. Do ensure that your dealings with HR are in writing, if possible.  It is important to create an audit trail.
  4. Do take notes at any meeting that you have with HR representatives.  At the conclusion of the meeting, write your notes up and sign and date them.  It is important that your written note is as contemporaneous as possible with the meeting.  If feasible, do get others who attended the meeting to agree your written notes by signing them.
  5. Do take advantage of the services of the Ombudsperson, if available.  They can give you informal advice and might be able to intercede on your behalf
  6. Do speak and discuss matters with your Staff Council/Association/Union representatives.  Listen to what they have to say, as they generally have a wealth of experience.
  7. Do speak out and loudly if you are subject to any form of retaliation for asserting your rights against your employer.
  8. Do instruct a lawyer who understands international administrative law at the earliest opportunity.

The Do Not’s

  1. Do not place too much trust  in HR, for they are a tool of management.
  2. Do not meet with HR representatives on your own, unless this is unavoidable.  It is always good to have a witness of your own (e.g., a Staff Council/Association/Union representative).  If you do meet with them on your own, then make a full note of the meeting and sign and date those notes (follow the procedure in the ‘do list’ at 4 above).
  3. Do not in general sign anything on the spot.  Only sign documents after you have had the benefit of independent advice, such as that of a lawyer or Staff Council representative.  Never sign a separation agreement until it has been thoroughly reviewed by a lawyer instructed by you. Do not think that you are anything other than the victim of your employers conduct.
  4. Do not be afraid to assert your rights, for your organisation will have some form of enforceable anti-retaliation procedures.
  5. Do not let your performance at work be unduly affected by your complaint, as you do not want your employer to be able to claim that you are a sub-standard performer.

If you could benefit from clear and practical advice, specifically designed for International Civil Servants, please click here to contact members of Bretton Woods Law.

May 21
0

Le Temps n’attend personne – surtout pas les Fonctionnaires Internationaux

By | Droit administratif, fonctionnaires, Les litiges du travail, News | No Comments

More often than not, when International Civil Servants come knocking on our door, seeking employment advice, we are alarmed by their lack of knowledge regarding their employment status and rights. The fact that they are often unaware that they are subject to International Administrative Law, the law that operates between International Civil Servants and their employer, and not domestic employment laws, is just one such example.
Why there is such a dearth of understanding is debatable, but we felt it might be useful to compile a brief list of basic ‘do’s and do not’s’, for when/if International Civil Servants find themselves in difficulties with their employer. This is by no means an exhaustive list, and we would encourage anyone facing HR issues to contact legal specialists, such as members of Bretton Woods Law as quickly as possible – because as the title suggests in these situations time is of the essence
The Do’s

  1. Do make yourself aware and be confident of your rights and, indeed, your obligations under the internal law of the organisation that you work for (e.g., read the Staff Regulations, Staff Handbook, and the rules and procedures associated with your organisation’s internal justice mechanism).
  2. Do act quickly if you have a complaint, for you may only have a short period of time in which to file.
  3. Do ensure that your dealings with HR are in writing, if possible.  It is important to create an audit trail.
  4. Do take notes at any meeting that you have with HR representatives.  At the conclusion of the meeting, write your notes up and sign and date them.  It is important that your written note is as contemporaneous as possible with the meeting.  If feasible, do get others who attended the meeting to agree your written notes by signing them.
  5. Do take advantage of the services of the Ombudsperson, if available.  They can give you informal advice and might be able to intercede on your behalf
  6. Do speak and discuss matters with your Staff Council/Association/Union representatives.  Listen to what they have to say, as they generally have a wealth of experience.
  7. Do speak out and loudly if you are subject to any form of retaliation for asserting your rights against your employer.
  8. Doinstruct a lawyer who understands international administrative law at the earliest opportunity.

The Do Not’s

  1. Do not place too much trust  in HR, for they are a tool of management.
  2. Do not meet with HR representatives on your own, unless this is unavoidable.  It is always good to have a witness of your own (e.g., a Staff Council/Association/Union representative).  If you do meet with them on your own, then make a full note of the meeting and sign and date those notes (follow the procedure in the ‘do list’ at 4 above).
  3. Do not in general sign anything on the spot.  Only sign documents after you have had the benefit of independent advice, such as that of a lawyer or Staff Council representative.  Never sign a separation agreement until it has been thoroughly reviewed by a lawyer instructed by you. Do not think that you are anything other than the victim of your employers conduct.
  4. Do not be afraid to assert your rights, for your organisation will have some form of enforceable anti-retaliation procedures.
  5. Do not let your performance at work be unduly affected by your complaint, as you do not want your employer to be able to claim that you are a sub-standard performer.

If you could benefit from clear and practical advice, specifically designed for International Civil Servants, please click here to contact members of Bretton Woods Law.

May 21
0

Time waits for no one – especially not International Civil Servants

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

More often than not, when International Civil Servants come knocking on our door, seeking employment advice, we are alarmed by their lack of knowledge regarding their employment status and rights. The fact that they are often unaware that they are subject to International Administrative Law, the law that operates between International Civil Servants and their employer, and not domestic employment laws, is just one such example.

Why there is such a dearth of understanding is debatable, but we felt it might be useful to compile a brief list of basic ‘do’s and do not’s’, for when/if International Civil Servants find themselves in difficulties with their employer. This is by no means an exhaustive list, and we would encourage anyone facing HR issues to contact legal specialists, such as members of Bretton Woods Law as quickly as possible – because as the title suggests in these situations time is of the essence

The Do’s

  1. Do make yourself aware and be confident of your rights and, indeed, your obligations under the internal law of the organisation that you work for (e.g., read the Staff Regulations, Staff Handbook, and the rules and procedures associated with your organisation’s internal justice mechanism).
  2. Do act quickly if you have a complaint, for you may only have a short period of time in which to file.
  3. Do ensure that your dealings with HR are in writing, if possible.  It is important to create an audit trail.
  4. Do take notes at any meeting that you have with HR representatives.  At the conclusion of the meeting, write your notes up and sign and date them.  It is important that your written note is as contemporaneous as possible with the meeting.  If feasible, do get others who attended the meeting to agree your written notes by signing them.
  5. Do take advantage of the services of the Ombudsperson, if available.  They can give you informal advice and might be able to intercede on your behalf.
  6. Do speak and discuss matters with your Staff Council/Association/Union representatives.  Listen to what they have to say, as they generally have a wealth of experience.
  7. Do speak out and loudly if you are subject to any form of retaliation for asserting your rights against your employer.
  8. Do instruct a lawyer who understands international administrative law at the earliest opportunity.

The Do Not’s

  1. Do not place too much trust  in HR, for they are a tool of management.
  2. Do not meet with HR representatives on your own, unless this is unavoidable.  It is always good to have a witness of your own (e.g., a Staff Council/Association/Union representative).  If you do meet with them on your own, then make a full note of the meeting and sign and date those notes (follow the procedure in the ‘do list’ at 4 above).
  3. Do not in general sign anything on the spot.  Only sign documents after you have had the benefit of independent advice, such as that of a lawyer or Staff Council representative.  Never sign a separation agreement until it has been thoroughly reviewed by a lawyer instructed by you. Do not think that you are anything other than the victim of your employer’s conduct.
  4. Do not be afraid to assert your rights, for your organisation will have some form of enforceable anti-retaliation procedures.
  5. Do not let your performance at work be unduly affected by your complaint, as you do not want your employer to be able to claim that you are a sub-standard performer.

If you could benefit from clear and practical advice, specifically designed for International Civil Servants, please click here to contact members of Bretton Woods Law.

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