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Lee Marler

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

 

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.

Apr 10
0

Des emplois des Fonctionnaires Internationaux en périle à l’UNESCO

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

On 9th March 2012, the 58 member Executive Board of UNESCO adopted at the behest of the organisation’s Director General (Irina Bokova) a new ‘Road Map.’  The Road Map, which is in effect a euphemism for change, was necessitated by a cut of approximately US$188 million to the organisation’s operating budget as a consequence of the United States’ refusal to pay its levy.  Although the Road Map is designed to allow UNESCO to continue its programmes over the period 2012-2013, despite its severe funding crisis, it is nevertheless based on a series of austerity measures that, according to the Executive Board, will require Ms Bokova to:

  • abolish or redefine posts where appropriate with a view to shifting resources to priority areas;
  • develop a more flexible policy of contracts;
  • review current Staff Rules and Regulations.

Accepting the challenge handed to her by the Executive Board, Ms Bokova said:

“The Roadmap now provides the Organisation with a clear sense of direction, and it sets firm targets to meet as we move forward … I am determined to meet the targets we have set in all areas – including cost efficiency, restructuring and human resources management.  My commitment to reforming the Organisation is steadfast.  The reform we have started is irreversible”

Not surprisingly, a significant number UNESCO’s employees were angered by the Executive Boards resolution and the Director-General’s apparent desire to implement it, for it is inevitable that the implementation of the roadmap will lead to significant job losses and an overall diminution of the terms and conditions of service presently enjoyed by the organisation’s staff.  In effect, the resolution of the Executive Board risks taking UNESCO out of the United Nations common system.  According to the two unions that represent the interests of the organisation’s international civil servants (ISAU and STU), 600 of them “massed” in protest outside the room in which the Executive Board was sitting.  Sidiki Coulibaly, President of the ISAU, and Ronan Grippay, President of the STU, were eventually invited to address members of the Executive Board, but, by this late stage of the proceedings, their advocacy on behalf of the staff fell onto deaf ears.  ISAU and STU have now set up a ‘Crisis Committee’ with a view to overturning the resolution.

UNESCO and the international civil servants that it employees appear to be on a collision course that may well test and have ramifications for international administrative law.  UNESCO is a member of the International Labour Organisation Administrative Tribunal and it will eventually fall to that body to adjudicate any unresolved complaints that might flow from UNESCO’s adverse treatment of its staff.  If a settlement to the dispute cannot be found, then a myriad of issues may be litigated within and possibly outside of UNESCO’s internal justice mechanism, such as accrued rights, fundamental and essential terms of contract, equality of treatment, dignity of the international civil service etc.

UNESCO (the United Nations Educational, Scientific and Cultural Organisation) is an international organisation and a specialised agency of the United Nations.  Its employees are international civil servants.  UNESCO was established on 16th November 1945 and has its headquarters in Paris, France.  UNESCO’s mandate is to contribute to peace and security by promoting international collaboration through education, science and culture in order to further universal respect for justice, the rule of law, and human rights and fundamental freedoms.  The Organisation is the successor to the League of Nations’ International Commission on Intellectual Cooperation.  Its web-site is www.unesco.org.

If you are an International Civil Servant facing employment and HR issues, Bretton Woods Law has considerable experience in dealing with matters relating to International Administrative Law. To contact your nearest office, please click here.

Apr 10
0

Jobs of International Civil Servants at Risk in UNESCO

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

On 9th March 2012, the 58 member Executive Board of UNESCO adopted at the behest of the organisation’s Director General (Irina Bokova) a new ‘Road Map.’  The Road Map, which is in effect a euphemism for change, was necessitated by a cut of approximately US$188 million to the organisation’s operating budget as a consequence of the United States’ refusal to pay its levy.  Although the Road Map is designed to allow UNESCO to continue its programmes over the period 2012-2013, despite its severe funding crisis, it is nevertheless based on a series of austerity measures that, according to the Executive Board, will require Ms Bokova to:

  • abolish or redefine posts where appropriate with a view to shifting resources to priority areas;
  • develop a more flexible policy of contracts;
  • review current Staff Rules and Regulations.

Accepting the challenge handed to her by the Executive Board, Ms Bokova said:

“The Roadmap now provides the Organisation with a clear sense of direction, and it sets firm targets to meet as we move forward … I am determined to meet the targets we have set in all areas – including cost efficiency, restructuring and human resources management.  My commitment to reforming the Organisation is steadfast.  The reform we have started is irreversible”

Not surprisingly, a significant number UNESCO’s employees were angered by the Executive Boards resolution and the Director-General’s apparent desire to implement it, for it is inevitable that the implementation of the roadmap will lead to significant job losses and an overall diminution of the terms and conditions of service presently enjoyed by the organisation’s staff.  In effect, the resolution of the Executive Board risks taking UNESCO out of the United Nations common system.  According to the two unions that represent the interests of the organisation’s international civil servants (ISAU and STU), 600 of them “massed” in protest outside the room in which the Executive Board was sitting.  Sidiki Coulibaly, President of the ISAU, and Ronan Grippay, President of the STU, were eventually invited to address members of the Executive Board, but, by this late stage of the proceedings, their advocacy on behalf of the staff fell onto deaf ears.  ISAU and STU have now set up a ‘Crisis Committee’ with a view to overturning the resolution.

UNESCO and the international civil servants that it employees appear to be on a collision course that may well test and have ramifications for international administrative law.  UNESCO is a member of the International Labour Organisation Administrative Tribunal and it will eventually fall to that body to adjudicate any unresolved complaints that might flow from UNESCO’s adverse treatment of its staff.  If a settlement to the dispute cannot be found, then a myriad of issues may be litigated within and possibly outside of UNESCO’s internal justice mechanism, such as accrued rights, fundamental and essential terms of contract, equality of treatment, dignity of the international civil service etc.

UNESCO (the United Nations Educational, Scientific and Cultural Organisation) is an international organisation and a specialised agency of the United Nations.  Its employees are international civil servants.  UNESCO was established on 16th November 1945 and has its headquarters in Paris, France.  UNESCO’s mandate is to contribute to peace and security by promoting international collaboration through education, science and culture in order to further universal respect for justice, the rule of law, and human rights and fundamental freedoms.  The Organisation is the successor to the League of Nations’ International Commission on Intellectual Cooperation.  Its web-site is www.unesco.org.

If you are an International Civil Servant facing employment and HR issues, Bretton Woods Law has considerable experience in dealing with matters relating to International Administrative Law. To contact your nearest office, please click here.

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