Lee Marler, Author at Bretton Woods Law

Oct 14

Bretton Woods Law Canada Opens for Business in Montreal

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

All members of Bretton Woods Law, London (“BWL”) are delighted to announce that Bretton Woods Law Canada (“BWLC”) opened its doors to clients in Montreal’s fashionable and avant-garde ‘old quarter’ on Monday, 12th October 2015. Ayman Daher and Alan Sarhan are the two partners leading the efforts of this new and dynamic law firm, which has a specialisation within Canada and elsewhere on governance, compliance and business risk, as well as the traditional Public International Law practice areas normally associated with BWL.

Ayman and Alan, who are supported internationally by the team at BWL, are highly talented and accomplished lawyers at the Quebec bar, who have unparalleled experience within Canada in dealing with anti-corruption issues within large multinational North American companies, including defending companies accused by the Multilateral Development Banks (e.g., African Development Bank (“AfDB”), the Asian Development Bank (“AsDB”) and the World Bank Group) of having in engaged in sanctionable practices on MDB financed projects.

With comprehensive assistance provided as necessary from BWL barristers, BWLC will advise and help Canadian and other companies in all aspects of anti-corruption work, including the design and implementation of ‘gold standard’ integrity compliance programmes.

To learn more about BWLC and to view the profiles of Ayman and Alan, visit our sister website at www.brettonwoodslaw.ca

Posted by: Lee Marler and Neil Macaulay – BWL’s Co-Heads of Chambers

Jun 26

Settle or fight the MDBs – that is the question

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

Companies and individuals that are accused by the Multilateral Development Banks (“MDBs”), such as the African Development Bank (“AfDB”), the Asian Development Bank (“AsDB”) and the World Bank Group, of having paid bribes in order to be awarded MDB financed contracts around the world or who have engaged in other sanctionable practices (e.g., fraud, collusion, coercion or obstruction) on MDB financed projects often face a difficult, yet significant decision at a relatively early stage of proceedings: do they (1) deny the allegations and fight the case within the respective sanctions regime of the accusing MDB; (2) accept the allegations but seek to be judged by the relevant sanctions board, committee or commissioner; or (3) do they seek to enter into some form of settlement with the relevant bank or banks. In the experience of the BWL MDB Team (henceforth “BWL”), especially of late, the answer very much depends upon the MDB involved and of course the underlying facts of the actual case.
With one or two exceptions, the anti-corruption offices of the MDBs are extremely keen (some might argue too keen) to convince companies accused by them of misconduct to enter into settlement agreements, for such agreements (1) resolve the case in the absence of it being tested before a properly constituted sanctions board, committee or commissioner, and with few if any rights of redress or appeal; (2) provide a fertile ground for the gathering of additional evidence and intelligence to be used by the relevant MDB against other companies; (3) raise in some cases revenue for the MDB; and (4) save the anti-corruption offices from doing their jobs, as they place the burden and cost of detection and investigation upon the company.
There are of course pros and cons for entering into a settlement agreement that on its face resolves the difficulties confronted by a company embroiled in a dispute with an MDB anti-corruption office. The advantages in theory are that (1) the company accused of engaging in a sanctionable practice will receive a reduced period of debarment if it accepts its guilt or possibly ‘does not admit nor deny’ its culpability; and (2) it will not be sanctioned further by the MDB for any past inculpatory matters that emerge as a consequence of doing the work required by the MDB under the terms of the agreement (e.g., additional investigation of MDB financed contracts). The disadvantages are that (1) the obligations imposed upon the company are onerous (e.g., (a) the imposition of an MDB approved integrity compliance program; (b) the conduct of a Red Flag Review of MDB financed contracts awarded to the company under which the company or its representative seeks to identify indicators of sanctionable practices; (c) undertaking investigations of those contracts that emit, for example, indicators of sanctionable practices; and (d) on-going collaboration obligations, including informing on other companies); (2) implementing the obligations is expensive and time consuming; (3) the sanction in the case of the World Bank’s Integrity Vice Presidency (“INT”) risks being longer than that initially recommended by Pascale Dubois, the World Bank’s Chief Suspension and Debarment Officer in any Notices of Sanctions Proceedings (“NoSPs”) issued by her office or imposed after a plea or contest by the World Bank’s Sanctions Board; (4) INT in particular may veto a company’s choice of law firm or lawyers to undertake the settlement obligations that it is required to undertake and pay for (at least in Europe, legal assistance of one’s own choosing has been regarded for some time as a basic human right see e.g., article 6(3)(c) of the European Convention on Human Rights (1950) (“ECHR”)); (5) the work of any third party Compliance Monitors appointed under direction from the MDB to verify Integrity Compliance Program (“ICP”) implementation is not necessarily confidential and may be shared with national prosecutors and regulators; (6) no immunity is offered by INT (the situation is entirely different at other MDBs) from referral to national law enforcement and prosecutorial agencies (“Criminal Referrals”); and (7) Criminal Referrals of third parties often exposes the company to the risk of identification and prosecution. INT is unusual, if not unique, as it insists that it is obliged to leave open the possibility of making Criminal Referrals in a settlement agreement and will not therefore countenance negotiating such a provision out of the agreement, despite the merits of doing so (Is it prudent, sensible or even commercially expedient to enter into an NRA with INT under which one may be obliged to disclose incriminating evidence that could be referred on for prosecution before the criminal courts?).
The anti-corruption office of the AfDB is the Integrity and Anti-corruption Department (“IACD”), which is led by Anna Bossman, a Ghanaian law graduate and former Deputy Commissioner of the Ghanaian Commission on Human Rights and Administrative Justice. Clair Wee, a Singaporean commercial lawyer and long standing counsel to the AsDB runs the AsDB’s Office of Anti-corruption and Integrity (“OAI”) and the ‘sanctioning arm’ of the World Bank’s Integrity Vice Presidency (“INT”) is run by Steven Zimmerman (a former US Federal Prosecutor) and managed by Leonard McCarthy (a former South African prosecutor and Head of the now disbanded Scorpions). Other smaller and viable anti-corruption offices do exist within other MDBs (see e.g., the Office of the Chief Compliance Officer (“OCCO”) at the EBRD, the Office of Institutional Integrity (“OII”) at the IADB and the Group Integrity Office (“GIO”) of the Islamic Development Bank), but this note will in the main deal only with the ‘Big Three’ and will not concern itself with the offices of organizations that operate less mature sanctions regimes, such as the Fraud and Investigation Division (“IG/IN”) of the European Investment Bank (“EIB”).
INT is by far the largest anti-corruption office within the MDB community in terms of budget and numbers, and not surprisingly it has traditionally been seen as the ‘big kid on the MDB block’, but of late it is being surpassed and outpaced in BWL’s view by the smaller, less bureaucratic and more commercially focused offices operated by the AfDB and the AsDB. It would appear to BWL that IACD and in particular OAI want to see companies reformed and thereafter succeeding commercially, and be able to work on AfDB and AsDB projects and thereby assist in fulfilling the mandates of those organizations. IACD and OAI seem to appreciate that the root cause of corruption in their respective countries of operation is corrupt public officials who seek to extort bribes from foreign companies and it would seem by their actions that they do not want to drive those companies into bankruptcy. It occurs to BWL that IACD and OAI grasp the very simple point that there is little to be gained from debarring reforming or reformed companies and their subsidiaries for often long periods, when those same companies are best placed to deliver AfDB and AsDB projects in often challenging environments. The risk of adopting an overzealous or aggressive debarment strategy is that all the large and capable companies are prevented from bidding on MDB financed projects, leaving those projects to the mercy of the less well qualified.
INT’s version of a settlement agreement is known as a Negotiated Resolution Agreement (“NRA”), which in itself amounts to an oxymoron, as the title creates the false impression that a meaningful dialogue occurs between the parties, when it does not. In BWL’s experience, INT has a set template for a NRA and it will not waiver much, if at all from its standard terms and conditions. Unlike with IACD and OAI, there is precious little in the way of negotiation and all that seems to be open for debate with INT is the terms of the actual sanction. This lack of lack of negotiation has much to do with the fact that the ‘deck is stacked’ from the outset against companies accused by INT of misconduct; there exists an inequality in the bargaining positions of the parties, for accused companies seeking a non-contentious resolution may already be subjected to and suffering from Early Temporary Suspension (“ETS”), which is the process at the World Bank by which companies are prohibited from bidding on World Bank financed projects before INT has even concluded its investigation (the legitimacy of ETS and temporary suspension more generally at the World Bank is arguable and potentially open to contest on the basis that it offends the presumption of innocence – a fundamental human right in civilised rule of law systems (see e.g., article 6(2) of the ECHRs) – and causes financial loss and reputational damage to companies that have not been found culpable of or admitted any wronging). In contrast, IACD calls such agreements what they actually are: Settlement Agreements and, as one would expect, the terms and conditions are open for reasonable discussion and debate. OAI does not have a formalised settlement procedure, preferring instead to deal with each case on its individual merits and there is much to be said for this flexible approach.
BWL barristers are regularly called upon to (1) defend companies and individuals who have been accused by INT, IACD and OAI of having engaged in sanctionable practices on World Bank, AfDB and AsDB financed contracts respectively; and (2) approach those offices with a view to agreeing disclosure protocols that will facilitate voluntary disclosures. It is fair to say that in our experience, IACD and OAI approach settlement negotiations in an entirely different manner to INT. The former and in particular OAI adopt a strategic and commercial attitude, which properly reflects their position within an international financial institution that lends to States in need of assistance. Whereas INT in contrast aligns itself far more with US law enforcement and behaves in a quasi prosecutorial role, which is undoubtedly due to the fact that INT is run and led by former prosecutors and staffed by inter alia former police officers. It appears to BWL that IACD and OAI are focused on the respective mandates of their institutions, whereas INT seems to concentrate more on the need for punishment of those that it perceives have transgressed the World Bank’s rules. INT operates undeniably within an administrative and contractual structure with a mandate to ensure that World Bank funds reach their intended destination and it is arguable that its quasi-law enforcement stance is ultra vires and open to contest.
One thing is for sure, a company must in BWL’s view tread with caution before going down the path of an NRA with INT, for it would certainly appear of late that the disadvantages outweigh the advantages of such an arrangement. Companies and individuals are better advised in general to consider either accepting the sanction recommended by Pascale Dubois in any NoSP issued by her office or taking their chances and fighting the merits of the case before the World Bank’s Sanctions Board, as it is more than likely that the company will receive a lesser penalty and avoid the burdens associated with an NRA, including the risk of Criminal Referrals. In contrast, it is BWL’s experience that a company or individual can walk with far more confidence towards a settlement with IACD or OAI, for those offices and their respective staff – due mainly to their professional backgrounds – do not see themselves and nor do they behave as an arm of law enforcement. Unlike their colleagues in INT, IACD and OAI officers do not, at least to BWL’s knowledge, participate in, for example, searches of premises undertaken under warrant by national law enforcement bodies.
Another certainty is that a company that is deciding whether to go or has decided to go down the route of a settlement agreement must be represented and advised by lawyers who actually know what they are doing. This seems self-evident, but BWL often encounter the aftermath of companies who have been poorly advised and who have taken decisions that prove to be regrettable. Companies should do their due diligence before instructing advisers and taking advice from them to ensure that they (1) are qualified and are acting as lawyers, and can assert legal professional privilege; (2) have real and verifiable experience of defending entities accused by the MDBs of sanctionable practices and not merely experience of designing and implementing integrity frameworks; and (3) are not MDB appeasers, in the sense that they are not advocating whole scale capitulation and disclosure of incriminating material. Companies and individuals should only engage competent and MDB experienced lawyers who will if necessary fight for their clients and give sound advice, which may be to reject a settlement and proceed to contest the accusations, both on jurisdiction and on the merits.
So to answer the question, the BWL MDB Team would advise companies and if needs be individuals – at least at present – to actively consider pursuing settlements with IACD and OAI, content in the knowledge that those offices will act reasonably towards them, but that care should be adopted when contemplating settling with INT. Do not misunderstand us, as we do not want to create the impression that settlements with INT cannot be achieved, for they can, provided of course that the conditions are right (and BWL can assist in shaping those conditions), but caution with INT is and should presently remain the operative word.

The dedicated BWL MDB Team is presently comprised of the following BWL barristers: Lee Marler, Neil Macaulay and Jazz Omari and the team can be contacted at enquiries@brettonwoodslaw.com or by telephone at +44 1245 351073.

Jul 30

Second Take – BWL Congratulates One of its Own

By Lee Marler | News, Rule of Law, Uncategorized | No Comments

Aside from being a talented young international barrister, BWL’s Joseph Oppenheimer is also a budding film writer and director with a number of short documentaries and films under his belt. Joseph directed to some acclaim the documentary Checkpoint, which explored the sensitive issue of Palestinian freedom of movement in the West Bank in the Middle East and most recently he wrote and directed the short film Lion in the Tent. It was this last production that brought Joseph to the attention of the American Film Institute, which has offered him a scholarship to its prestigious two-year directing course in Los Angeles, California. Joseph of course accepted the AFI’s offer and all within BWL are delighted for him. Joseph will be on sabbatical from August 2014.

Joseph is a member of BWL’s Rule of Law and International Humanitarian Law Teams.

Sep 11

The Success of which we cannot speak

By Lee Marler | Administrative Law, Civil Servants, Human Rights, International Administrative Law, London, News | 2 Comments

Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system. In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee. One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter. This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].

The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom. But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals. EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.

The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT. The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors. The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings. Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions. In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)

Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.” What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.” The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him. What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.

What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge. This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.

Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals. It is abused by international organisations, it is abhorrent and it should be stopped. If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve. However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.

May 07

The International Administrative Law Centre of Excellence launches its quarterly newsletter

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

Today, the International Administrative Law Centre of Excellence issued its first electronic quarterly newsletter to 289 individuals interested in improving the employment law of the international organisations. The Newsletter’s editor, Alex Haines, Counsel at Bretton Woods Law, said:

“This is a very exciting moment for the Centre of Excellence. The Centre’s Executive Committee and all of us at Bretton Woods Law hope that the Centre’s members and, indeed, non-members find the newsletter to be interesting and informative, and we have already begun work on edition 2, which should be out at the beginning of September.”

Join the Bretton Woods Law International Administrative Law Centre of Excellence today

Apr 30

The Application of Human Rights to International Organisations: Do Employees of International Organisations Enjoy the Right to a Fair Hearing of their Employment Disputes?

By Lee Marler | Centre of Excellence, Civil Servants, Human Rights, IAL, International Administrative Law, News | No Comments

International organisations are products of international law, as they are invariably created by means of multilateral treaties. It is therefore not surprising that the International Court of Justice (“ICJ” or “World Court”) has made it quite clear on several occasions that international organisations “are bound by any obligations incumbent upon them under general rules of international law” (Advisory Opinion on the Interpretation of the Agreement of March 25th, 1951 between WHO and Egypt [1980] I.C.J. Reps at 89-90. See also the Reparation for Injuries Case [1949] I.C.J. Reps 174 at 179: an international organisation is “a subject of international law and capable of possessing international rights and duties”).

It is now generally accepted that international organisations, as international persons, are bound by the customary rules of international law, including the customary aspects of international human rights law. By way of example, Sands and Klein, editing Bowett’s Law of International Institutions, take the view at page 456 that:

“notwithstanding the fact that an international organisation is not a party to, say, a human rights treaty …if the rule contained in an agreement is reflected in customary international law then it can, as such, bind an international organisation. It has been suggested, for example, that the World Bank is not subject to general international norms for the protection of fundamental human rights. In our view that conclusion is without merit, on legal or policy grounds.”

The right to a fair and, indeed, a public hearing by an independent and impartial tribunal in the determination of rights and obligations is now undoubtedly a general rule of international law; it is a ‘fundamental human right’ that finds its origins in article 10 of the Universal Declaration of Human Rights (“the Declaration”). Building upon the Declaration, which was proclaimed by the General Assembly of the United Nations on 10th December 1948, the states of Europe sought in 1950 to enforce certain Declaration rights by agreeing the European Convention on Human Rights (“ECHR”). Article 6(1) of the ECHR provides that in the determination of civil rights and obligations “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The geographical limitation of the ECHR was to a certain extent addressed and remedied by the United Nations opening for state signature on 19th December 1966 the International Covenant on Civil and Political Rights (“ICCPR”), which came into force on 23rd March 1976. In conformity with article 10 of the Declaration and article 6 of the ECHR, article 14(1) of the ICCPR states that in the “determination … of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Similar provisions can be found in other international human rights treaties, such as article 8 of the 1969 American Convention on Human Rights and articles 10 and 20 of the 2012 ASEAN Human Rights Declaration.

Most, if not all international organisations enjoy as a matter of law some form of immunity from legal suit in their respective member states. This means that international civil servants, as the employees of international organisations, are prevented from pursing employment related complaints in national employment courts and tribunals. In order to maintain their immunity from suit, international organisations are thus obliged to provide their employees with a forum in which they can litigate their disputes and, as such, international organisations have over the years developed and implemented various forms of internal justice mechanisms. But merely providing an international civil servant with a mechanism by which his or her case can be heard is insufficient, as international law, as is clearly demonstrated above, requires that the hearing must be public and above all fair, which means that the mechanism must offer all the guarantees inherent in the notion of due process. The consequences for an international organisation of failing to provide for a fair internal system of justice is that it risks losing its immunity and therefore risks being sued successfully in national courts. In Waite and Kennedy [1999] 116 ILR 121, the European Court of Human Rights (“ECtHR”), dealing with a case concerning the European Space Agency, made plain that “a material factor in determining whether granting […] immunity from […] jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the [ECHR].”

The right to the enjoyment and protection of human rights is not lost merely because an individual decides to work for an international organisation. Human rights ‘black-holes’ do not exist and they most certainly do not exist within organisations created and maintained by states. So, in short, the answer to the question is yes, international civil servants, as the employees of international organisations, have the right to have their employment complaints heard and heard fairly.

Apr 03

Voluntary Disclosure Programmes

By Lee Marler | Bribery, Corruption, Cross debarment, Multilateral Development Banks, News, Voluntary Disclosure Programme | No Comments

If you are a company that is seeking to escape the downward spiral of paying bribes or engaging in fraud on projects financed by the multilateral development banks (“MDBs” or “IFIs”), such as the World Bank or the Asian Development Bank, then entry into a voluntary disclosure programme (“VDP”) might well be the answer.

VDPs are often used by enforcement agencies around the world in order to gather intelligence to aid in the global fight against corruption and fraud. Companies, individuals and other entities who are or who have been paying bribes with the intention of inter alia influencing the award of contracts are encourage by the terms and conditions of the programme to come forward and self-report their respective wrongdoings. The incentive for self-reporting under an established VDP is that the organisation that operates the programme will not normally sanction the participant for disclosed misconduct and will keep the identity of the participant confidential. The benefit to the organisation is self-evident, for it will discover information about corruption and fraud on projects that it is connected with from the participant that it might otherwise have been unaware of. Although the participant will not face sanction for its disclosures, the information that it provides will assist the organisation in pursuing cases against other bribe payers, bribe recipients and fraudsters.

Of the five major MDBs (i.e., the Asian Development Bank (“ADB”), the African Development Bank (“AfDB”), the European Bank for Reconstruction and Development (“EBRD”), the Inter American Development Bank (“IADB”) and the World Bank Group), only the World Bank Group operates a fully functioning, transparent and well established VDP; although the other MDBs, and most notably the ADB, have systems in place that encourage and reward self-reporting. The World Bank Group launched its VDP in 2006 and its accompanying Guidelines for Participants.

In order to enter the World Bank’s VDP, a participant must not be under active investigation by the Bank’s Integrity Vice Presidency (“INT”) and it must agree to:

co-operate fully with the World Bank;
desist from any further engagement in sanctionable practices on World Bank financed projects, such as corruption, fraud, collusion or coercion;
investigate at its expense all World Bank funded contracts in which it has participated in the past five years and to disclose the results of those investigations to INT; and
implement at its expense a robust internal compliance programme that meets the requirements of the Bank’s Integrity Compliance Guidelines and to subject that programme to monitoring for a period of three years by a Bank-approved Compliance Monitor.

In exchange for its full co-operation, the VDP participant enjoys:

immunity from sanction on disclosed misconduct;
anonymity
the ability to continue to bid on World Bank financed projects.

A participant that continues to engage in misconduct after entering the VDP or otherwise materially violates the programme’s terms and conditions will be debarred by the World Bank for a ten year period, which means that during the currency of the debarment the participant will be (a) prevented from bidding on World Bank financed projects; and (b) cross-debarred by those Multilateral Development Banks that have signed and implemented the April 2010 Agreement for Mutual Enforcement of Debarment Decisions (“the Cross-Debarment Accord”.

How Bretton Woods Law Can Assist You

Bretton Woods Law lawyers have established expertise in the VDP operated by the World Bank Group and understand fully the modalities of self-reporting to other Multilateral Development Banks, such as the ADB, which welcome self-reporting, but which do not as yet have a functioning and transparent programme. Bretton Woods Law handles for its clients all aspects of entry into and participation in the VDP or other forms of self-reporting. From first contact with the banks through to the fulfilment of all VDP obligations, Bretton Woods Law lawyers have established and verifiable experience. In particular, Bretton Woods Law lawyers:

will conduct all the necessary internal investigations to a standard that meets and exceeds the bar set by the World Bank; and
will design and, if necessary, implement an integrity compliance program that has previously been described as “gold-standard” by the World Bank’s Integrity Compliance Officer (“ICO”).

For further information about how Bretton Woods Law can assist you in moving away from corruption in a protected manner, please contact your nearest office or email us at enquiries@brettonwoodslaw.com.

Mar 22

Bretton Woods Law International Administrative Law seminar at PAHO draws top international civil servants from the Americas

By Lee Marler | Administrative Law, Centre of Excellence, Civil Servants, Employment Disputes, International Administrative Law, News | No Comments

On 28^th February, Bretton Woods Law held a seminar at the behest of PAHO (Pan-American Health Organisation) on International Administrative Law – the employment law of international civil servants. The seminar drew 50 attendees from around the Americas, including senior Staff Association members as well as doctors and other medical professionals.

The topics in the agenda were wide and varied and included: clarity of the law, confidentiality of proceedings and the role of lawyers for the organisation. However the point that seemed to cause the most debate was Staff Associations – their independence, the need for dues, industrial action & retaliation.

Some of those present expressed their fear of approaching Staff Associations to discuss their concerns and joining class actions for fear of retaliation and reprisal. There was also an in-depth discussion on the fact that even if employees win their case, they will not automatically be awarded their legal fees – which along with the fear of retaliation creates a strong barrier to some international civil servants taking their grievances to a tribunal.

It was of course agreed that the present situation is unfair and untenable, and change needed to happen, particularly a confidential forum where international civil servants could share their views and experiences without fear of reprisal and retaliation.

In view of these concerns, Bretton Woods Law was delighted to have the opportunity of inviting all attendees to apply for membership to the International Administrative Law Centre of Excellence , a forum whose primary aim is to assist in the global development and improvement of International Administrative Law.

The Centre of Excellence has also been designed to create just what these international civil servants need – a confidential arena in which they can, without fear, freely express their concerns and views. It is hoped that from these shared experiences, new and thought provoking ideas and concepts will emerge, which, together with promoting international best practices, will enhance and significantly improve the employment law of international organisations worldwide.

If you are an International Civil Servant, who wants to help change your employment law, apply today for membership to the International Administrative Law Centre of Excellence.

Feb 19

Equality of arms – a hot topic at first Geneva seminar

By Lee Marler | Administrative Law, Centre of Excellence, Civil Servants, IAL, International, International Administrative Law, News | No Comments

On 6^th February, Bretton Woods Law held its first International Administrative Law seminar in Geneva. The seminar was attended by a number of senior Staff Association members in order to discuss a selection of the most important aspects of International Administrative Law facing international civil servants today.

One of the main topics that was debated was the thorny issue of ‘Equality of Arms’, and for those international civil servants who could not make the seminar, an overview of Bretton Wood Law’s thoughts on this particular subject can be found below.

Bretton Woods Law has also set up the International Administrative Law Centre of Excellence, to assist in the global development and improvement of International Administrative Law. Apply for membership >

Equality of Arms

A ‘David v. Goliath’ situation prevails in most, if not all international organisations. An employee who wishes to raise a complaint that his or her contract of employment has be contravened by the organisation that he or she works for (e.g., a secretary who claims to have been bullied or harassed by her boss), will normally have to face a human resources department that is advised by specialist lawyers from within the organisation’s legal department. In some organisations, such as the multilateral development banks (e.g., the World Bank, EBRD etc.), whole teams of lawyers exist (known as institutional & administrative (“I&A”) law teams) whose primary function is to defend the organisation against employment related claims brought by staff members. What is more, the organisation has if necessary the funds at hand to engage external lawyers to advise it and protect its interests. In stark contrast, the employee does not have such legal resources at his or her disposal and may well not have the funds to engage a lawyer at all or only for a limited period of time. The majority of internal justice systems operated by international organisations do not provide for any form of ‘legal aid’ nor do they operate a defence service under which lawyers are employed by the organisation to represent employees before the grievance committees and administrative tribunals that they operate (however, c.f., the United Nations Office of Staff Legal Assistance). Moreover, the statutes and procedures that create the committees, boards and tribunals that form the internal justice systems of many international organisations either do not permit those bodies to award costs against the organisation and in favour of the employee or, if they do, those costs can only be awarded at the very end of a case, which may take years to finalise. Indeed, it would appear to be a tactic of some lawyers within certain organisations that we have encountered to delay intentionally in order to put the injured international civil servant to unnecessary expense and thereby starve him or her out of the litigation process. One case in which Bretton Woods Law lawyers are involved is now in its third year due to ‘stalling tactics’ on the part of the organisation. Other cases are delayed by an organisation taking novel and ultimately unsuccessful jurisdictional arguments (on this point see O Elias’ The Development and Effectiveness of International Administrative Law (2012) at page 339). In one international organisation in which we operate it can take up to fifteen years before a judgement is actually rendered by its administrative tribunal, which is astonishing as much as it is troubling. Put bluntly, many international civil servants simply cannot afford to engage lawyers to assist them at all or for the time required in order to navigate the labyrinth of laws implemented by international organisations. This disparity of wealth and the manner in which it is exploited by some international organisations causes an ‘inequality of arms’ between the litigants that can taint the legitimacy of the internal process and render it unfair. The solution to this all too prevalent problem is of course obvious: the organisation that cloaks itself in an immunity from legal suit and thereby compels its employees to use its internal justice system should provide for a legal aid scheme of some description or, alternatively, arrange for legal insurance to be available to all of its employees, in the same way that it provides for medical insurance.

If you are an international civil servant and in need of specialist employment advice, contact your nearest office.

Jan 07

The Big Issues in International Administrative Law

By Lee Marler | Derecho Administrativo, Funcionarios Públicos, News | No Comments

1. Background

1.1. The vast majority of international governmental organisations are created by multilateral treaties concluded between states (see e.g., the multilateral treaty establishing the IBRD, which is more commonly known as the World Bank). International organisations are therefore products of public international law and they are undoubtedly bound by the fundamental principles of that body of law, including the customary aspects of international human rights laws (see e.g., International Court of Justice (“ICJ”) decision in the Reparation for Injuries Case [1949] ICJ Reps. 174 at 179 and the ICJ Advisory Opinion on the Interpretation of the Agreement of March 25, 1951 between the WHO and Egypt [1980] I.C.J Reps., p.73).

1.2. The treaties creating international organisations, which are often referred to as the ‘constituent agreements,’ usually confer a number of immunities and privileges upon them in order to ensure the independence of those entities, including a general immunity from legal suit (see e.g., Chapter VIII of the Agreement Establishing the EBRD). Occasionally, states advance a treaty dealing only with the immunities of an international organisation (see e.g., the General Convention on the Privileges and Immunities of the United Nations and the associated Specialised Agency Convention).

1.3. The immunity of an international organisation from legal suit is held to be a shield that protects it from the national laws and jurisdiction of the courts of its member states, including labour courts and tribunals. It is the immunity from legal suit that normally precludes employees of international organisations (commonly referred to as international civil servants) from suing their respective employers in national labour or employment courts and tribunals.

1.4. In order to provide international civil servants with a mechanism and forum in which to litigate their employment related disputes, international organisations are compelled to adopt their own internal justice systems, for a failure by an international organisation to do so will now imperil its immunity from legal suit and may permit the aggrieved international civil servant to seek redress in national courts (see e.g., The European Court of Human Rights judgement in Waite and Kennedy [1999] ECHR 13: “a material factor in determining whether granting […] immunity from […] jurisdiction is permissible is whether the applicants had available to them alternative means to protect effectively their rights under the Convention”). What is more, for the organisation’s internal justice system to be held to be legitimate and valid, it must ensure a ‘fair process’ for the handling and hearing of the employment related complaints made by its employees, and what is fair will be judged by the criteria now set by the customary aspects of international human rights laws, such as article 6 of the 1950 European Convention on Human Rights (see e.g., Siedler v. Western European Union, Brussels Labour Court of Appeal (4^th Chamber), 17^th September 2003). A system adopted and maintained by an international organisation that does not comply with accepted international human rights standards risks being struck down by national courts with the effect that the organisation will lose its immunity and be made amenable to the jurisdiction of those courts (see e.g., the comments made on the United Kingdom’s International Organisation Bill of 2004 by the Joint Committee on Human Rights of the United Kingdom’s Parliament: “It is important to emphasise that neither the European Convention on Human Rights, nor the Human Rights Act 1998 are in anyway disapplied in respect of international organisations operating in the UK”).

1.5. The body of law that invariably applies to the adjudication of employment related disputes within the internal justice systems of the international organisations is international administrative law. International administrative law is in effect the employment law of the international organisations.

2. The Big Issues

2.1. Bretton Woods Law are International Administrative Law lawyers and they represent international civil servants and staff associations in many international organisations located around the word. In defending the employment rights of our clients and in advising the unions to which they belong, we have encountered and catalogued a number of concerns that appear to us to be prevalent in the internal justice systems of many international organisations. What follows is a distillation of those concerns into matters that we judge, as International Administrative Law specialists, to be the ‘big issues’ now affecting international administrative law.

a. Equality of Arms: A ‘David v. Goliath’ situation prevails in most, if not all international organisations. An employee who wishes to raise a complaint that his or her contract of employment has been contravened by the organisation that he or she works for (e.g., a secretary who claims to have been bullied or harassed by her boss), will normally have to face a human resources department that is advised by specialist lawyers from within the organisation’s legal department. In some organisations, such as the multilateral development banks (e.g., the World Bank, EBRD etc.), whole teams of lawyers exist (known as institutional & administrative (“I&A”) law teams) whose primary function is to defend the organisation against employment related claims brought by staff members. What is more, the organisation has if necessary the funds at hand to engage external lawyers to advise it and protect its interests. In stark contrast, the employee does not have such legal resources at his or her disposal and may well not have the funds to engage a lawyer at all or only for a limited period of time. The majority of internal justice systems operated by international organisations do not provide for any form of ‘legal aid’ nor do they operate a defence service under which lawyers are employed by the organisation to represent employees before the grievance committees and administrative tribunals that they operate (however, c.f., the United Nations Office of Staff Legal Assistance). Moreover, the statutes and procedures that create the committees, boards and tribunals that form the internal justice systems of many international organisations either do not permit those bodies to award costs against the organisation and in favour of the employee or, if they do, those costs can only be awarded at the very end of a case, which may take years to finalise. Indeed, it would appear to be a tactic of some lawyers within certain organisations that we have encountered to delay intentionally in order to put the injured international civil servant to unnecessary expense and thereby starve him or her out of the litigation process. One case in which Bretton Woods Law lawyers are involved is now in its third year due to ‘stalling tactics’ on the part of the organisation. Other cases are delayed by an organisation taking novel and ultimately unsuccessful jurisdictional arguments (on this point see O Elias’ The Development and Effectiveness of International Administrative Law (2012) at page 339). In one international organisation in which we operate it can take up to fifteen years before a judgement is actually rendered by its administrative tribunal, which is astonishing as much as it is troubling. Put bluntly, many international civil servants simply cannot afford to engage lawyers to assist them at all or for the time required in order to navigate the labyrinth of laws implemented by international organisations. This disparity of wealth and the manner in which it is exploited by some international organisations causes an ‘inequality of arms’ between the litigants that can taint the legitimacy of the internal process and render it unfair. The solution to this all too prevalent problem is of course obvious: the organisation that cloaks itself in an immunity from legal suit and thereby compels its employees to use its internal justice system should provide for a legal aid scheme of some description or, alternatively, arrange for legal insurance to be available to all of its employees, in the same way that it provides for medical insurance.

b. Clarity of the Law: Employed lawyers within many international organisations, often at the level of Legal Adviser or General Counsel, refuse to accept for good reason that the organisation that employs them and their teams is bound by and therefore must implement the fundamental principles of public international law, including international human rights laws. They refuse to accept the obvious, for they appreciate that the ‘checks and balances’ created by human rights laws operate to the advantage of the staff and against the organisations that they represent. This attitude is unacceptable and surprising given that international organisations are derived from treaties and are therefore the products of international law (see supra, ICJ Advisory Opinion [1980] ICJ Reps., p.73 at 89-90). It is even more surprising given the judicial and academic position on the point (see e.g., Sands & Klien Bowett’s Law of International Institutions (6^th Ed) at p.463 paragraph 14-037). However, such an attitude does cause significant problems, for those lawyers at times draft and advance for implementation internal laws that offend general principles of international law. For example, internal justice mechanisms are created by I&A lawyers and implemented by their respective international organisations that simply do not comply with the ‘fair trial provisions’ enshrined in such pivotal human rights texts as the Universal Declaration of Human Rights (article 10), European Convention on Human Rights (article 6), International Covenant on Civil and Political Rights (article 14), American Convention on Human Rights (article 8) and the African Charter on Human and Peoples Rights (the Banjul Charter) (article 7). Furthermore, the internal laws that are drafted are often intentionally complex, convoluted and confusing, such that an employee who is not legally trained would struggle to understand and work effectively within them. This once again touches on the ‘equality of arms’ issue identified above, for the employee will need funds to instruct a lawyer to assist him or her or otherwise be disadvantaged in comparison to the organisation that has allegedly caused him or her harm. Once again the solution is simple: lawyers employed by international organisations must accept that the organisation is “bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties” (see supra ICJ Advisory Opinion [1980]) and draft precise and straightforward laws that are readily understandable to the international civil servants who are subject to them, including those establishing internal justice systems, which reflect customary international human rights rules. Human rights ‘black-holes’ in the cities in which international organisations are located should not be tolerated by their members, shareholders or host states. What is more, and aside from the complexities of internal justice systems within international organisations, we are encountering of late a worrying trend that executive heads of international organisations and others are refusing to follow the rulings, orders, recommendations and suggestions of their respective internal courts, tribunals and committees, if to do so would be inconvenient, unpalatable or embarrassing for the organisation. Such contempt should not and cannot be tolerated and should of course be readily exposed, but, as will be seen blow, this is easier said than done.

c. Confidentiality of Proceedings: The internal justice systems of many international organisations, which are established to provide employees with a mechanism for resolving or litigating their employment related complaints, commonly stipulate that proceedings are strictly confidential. The international civil servant bringing the claim is often prevented by the grievance or appeals procedures from speaking openly about it to others; form distributing his or her pleadings or from having the benefit of a hearing that is open to others. Additionally, not all suggestions, recommendations or decisions made by judicial figures within the internal justice systems of international organisations are published, which means that knowledge of the jurisprudence emanating from some grievance committees, appeal boards or tribunals is restricted to the organisation and of course its lawyers. Those judgements that are published are so heavily redacted by some international organisations that they become virtually incomprehensible. Aside from undermining the administration of justice, the consequence of this lack of transparency or veil of secrecy imposed by the organisations is that other employees are unaware of complaints advanced by their colleagues, which naturally acts to stifle complaints and fosters a general culture of not pursuing the organisations for behaviour that amounts to unacceptable practices. This has the ancillary and unwelcome effect of protecting those who would do harm to international civil servants in the work place, as well as encouraging retaliation against whistleblowers; a practice that unfortunately remains prevalent in some international organisations despite efforts to legislate internally against it.

d. Capping of Awards: The final court of appeal within the majority of international organisations is traditionally the administrative tribunal, which is a bench consisting normally of five external judges drawn from the fields of employment or international law. Quite often the statues of those administrative tribunals will limit the award of compensation to a successful litigant to three years’ salary. Furthermore, if an international civil servant successfully appeals against the decision to terminate his or her contract of employment, the statutes of the tribunals and, indeed, the lower courts and committees, permit the organisation to refuse to reappoint the employee on the condition that he or she is compensated financially, which is subject to limits. The internal justice systems operated by the international organisations are meant to be an effective substitute for external courts, which international civil servants are precluded from utilising due to the organisations’ immunity, but the capping of awards serves to undermine the effectiveness and fairness of the process. Imagine a situation in which a female international civil servant is sexually harassed and bullied by a dominant male supervisor over a protracted period of time. As a result, she suffers long-term physiological damage as a consequence of the organisation’s failure to provide her with a safe place to work, such that she is unable to work again; yet her damages are limited to three times her salary. This is indefensible in our view and reflects the fact that the internal laws of the organisation, including its internal justice system, are drafted and enacted by the organisation itself; they are self-serving and designed invariably to protect the organisation to the detriment of its employees.

e. Conflicts of Interest: The internal justice systems of so many international organisations abound with conflicts. Courts of first instances, such as grievance committees, conciliation committees and boards of appeal, are often precluded from making actual decisions or rendering judgements either on issues of jurisdiction or on the merits of the case before them. It is common to find that those bodies, often chaired by an external lawyer or judge, are only allowed to make ‘recommendations’ to the executive heads of the organisations. Situations regularly arise where the executive head of the organisation (e.g., its Secretary-General or President) takes a decision that adversely affects a staff member and that staff member then grieves the decision to the respective court of first instance, such as a board of appeal. As structured, the executive head of the organisation will be the eventual decision maker on whether the board of appeal has jurisdiction to hear the complaint against him and, if it does, whether his decision was lawful or not. One does not need to be a lawyer to appreciate that this is nonsense and that it defies the basic principles of natural justice (e.g., nemo judex in causa sua (no one should be a judge in his own case)); yet this situation is prevalent within international organisations. What is more, lawyers for the organisation regularly advise both human resources (i.e., the opponent of the international civil servant in internal litigation) and the executive head of the organisation (i.e., the decision maker at first instance). The same defence lawyers often pop-up in the offices of human resources, before the chair of the fact finding body and later in the office of the executive head of the organisation, which to us and we would suggest the objective observer seems farcical to say the least.

f. Benchmarking: International organisations seem to have a near zealous approach to comparing and, more importantly, justifying their internal laws against the practices and procedures implemented by other international organisations; a practice which is of course self-fulfilling and detrimental to the improvement of internal justice systems. Lawyers for one international organisation and their internal clients will justify the apparent lawfulness of its procedures by reference to another organisation, which permits all too obvious mistakes to permeate around the international community. A contravention of human rights laws in one institution will be picked up to justify its breach in another (i.e., ‘if Organisation (A) can get away with it, then we should give it a go to’). A good example of this is the denial of locus standi to staff unions before administrative tribunals. Such tribunals often deny staff unions the right to be heard in order to defend the collective interest of their membership on the basis that other tribunals in other organisations do not permit it, despite the principle of freedom of association and the existence of inter alia article 8 of the International Covenant on Economic, Social and Cultural Rights.

3. Conclusion

3.1. Many more ‘big-issues’ exist (e.g., (1) the tendency of international organisations of late to substitute ‘first tier fact finding’ in some internal justice systems for ‘compulsory mediation’; or (2) the organisation simply ignoring its internal law to best suit its own purposes; or (3) the organisation flatly refusing to suspend the effects of a patently unlawful decision; or (4) the lawyers for the international organisation going behind the backs of external lawyers to their respective lay clients; or (5) the unjust treatment of long-term contractors (e.g., contractors engaged for over a decade on six month back-to-back contracts), who are in effect ‘disguised employees’ but who do not get any of the benefits of being an international civil servant, including the ability to pursue an action against the organisation within its internal justice mechanism), but, for the sake of brevity, we judge it wise to stop here. It is hoped that this short note will serve as a conduit for debate in forums and groups that want – as we do – to see the improvement of international administrative law.

3.2. At Bretton Woods Law, International Administrative Law experts, we have our own ideas on how the law can and should be improved and we intend to advance this soon through the establishment of the Bretton Woods Law International Administrative Law Centre of Excellence.

Lee Marler