IAL

Following a string of strikes last year and May and April this year, a further planned strike at the European Patent Organisation (EPO) has been ruled out by its President and is likely to lead to further unrest amongst the staff at the Organisation. Under the internal law of the EPO which recognises the ‘right to strike’, any strike is subject to the ‘terms and conditions’ stipulated by the EPO’s President that cover such matters as the strike duration and the voting process. The President has acted to prohibit a three-day strike protest planned for later this month on the grounds that it would create confusion at a time when new staff representatives were being elected.

In a ruling on 14 January 2014 the District Court of The Hague ruled that the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO) are entitled to bring actions before the national court in their own right against the EPO and rejected the plea of immunity by the EPO. Whilst it was common ground between the parties that EPO itself was subject to “primary sources of law such as the customary international law, the fundamental rights acknowledged in international conventions and other universally recognised legal principles” the EPO put forward a primary line of defence that it has immunity of jurisdiction.

The Hague Court found that it did have jurisdiction to hear the claim in large part because the VEOB and SUEPO are not able to challenge decisions under the EPO dispute settlement scheme in the Service Regulations and furthermore rejected claims by the EPO that the VEOB and SUEPO could not bring actions in their own right. Once the two unions were established as legal entities the Court said “the right to take legal action independently arises automatically from this”. The Hague Court distinguished the ECtHR decision of 11 June 2013, case number 65542/12 (Mothers of Srebrenica) restricting the scope of that decision on immunity to apply to the UN specifically in the performance of its peacekeeping duties.

The two unions lost the claim on the merits that the EPO Service Regulations are excessively restrictive when judged against the relevant international treaties and customary law on the right to strike. It was decided that the remedy sought would only apply to that part of EPO in the Netherlands and create ‘a fragmentation of the Patent Office’ but Neil Macaulay of Bretton Woods Law believes the importance of the decision is that it demonstrates once again the unwillingness of the national courts to allow the immunity from suit to be relied upon by an international organisation in circumstances where the organisation has not provided an effective internal system of justice to resolve disputes; in this case those brought or taken by Staff Associations or Unions.

An international civil servant has successfully begun a claim in the national courts in Holland after exposing the lack of access to justice provided by the European Patent Office and the International Labour Organisation Administrative Tribunal (ILOAT) in hearing his dispute.

In a ground-breaking and landmark ruling given on 16 July 2013 the District Court of The Hague (“the Court”) rejected an application by the European Patent Organisation (“EPO”) inviting the Court to rule that the Court was not competent and lacked jurisdiction to hear a complaint from a staff member because of the immunity from legal suit enjoyed by the International Organisation. The Court considered that in this ‘exceptional case’ the EPO’s immunity from the jurisdiction of the national courts could not be relied upon as it was disproportionate and therefore liable to be overruled by the Court.

The Court decided that the decision by the President of the EPO on the appeal by the staff member against the conversion of his disability pension into a disability allowance was a judgment by a non-independent court. Furthermore, whilst the right to appeal against the President’s decision to the ILOAT was to an independent and impartial tribunal the delay of 15 years waiting for the ILOAT to hear the case would deprive [the staff member] of a fair process and breached the employee’s human rights to have his civil rights determined by an independent court within a reasonable time.

The Court was not deterred by the fact that the EPO is not itself a party to the European Convention on Human Rights in reaching its decision, but referred to the fact that the EPO Service Regulations, which formed part of the staff members contract of employment, expressly applied human rights.

National courts have historically been reluctant to allow employment disputes by staff members against International Organisations such as the EPO to be brought before them and have generally upheld the immunity from suit that the organisations enjoy. This decision marks a welcome change in approach since no court could reasonably conclude that a delay of 15 years in hearing a case represents a system of justice let alone a trial within a reasonable time. Perhaps the most lamentable observation in the judgement was that there was no suggestion being put forward that the ILOAT was taking any measures to remedy these long waiting times for EPO employees. Regrettably it is considered that far from being an ‘exceptional case’ the lack of fairness and delay experienced by this staff member is one that is only too likely to be faced by many other staff members at the EPO and quite possibly some of the other 41,000 staff members working at other International Organisations who are compelled in similar circumstances to appeal to the ILOAT as well.

This case typifies the worst of the difficulties facing International Civil Servants seeking to air a grievance at the treatment they have received at work. In order to improve the standard of the internal justice systems of the many International Organisation Neil Macaulay and Lee Marler have founded the International Administrative Law Centre of Excellence. All those involved in internal justice systems who have an interest in finding ways to bring the systems up to date and compliant with modern human rights standards are welcome to join the Centre of Excellence and contribute to bringing about a new era of effective dispute resolution in International Organisations around the globe.

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

Last month, the Inter-American Development Bank (‘IADB’) brought into force a revised version of its Staff Rule PE-323, governing conflict resolution between staff members and the Bank.  The amended provisions have the effect of abolishing the Conciliation Committee, the Bank’s fact-finding tribunal of first instance, in favour of a system of compulsory mediation, after which staff members may proceed directly to the Administrative Tribunal of the IADB.

The reform is controversial for many reasons, not least because it replaces an inquisitorial fact-finding tribunal with a mediator charged with seeking consensus.  Moreover, in the new system the tribunal of first instance becomes the Administrative Tribunal, from which there is no avenue of appeal, contrary to the norms of international administrative law and, indeed, public international law generally.

Loss of an avenue of appeal
The principal consequence of the reform is that the Conciliation Committee has been dissolved, meaning that the fact-finding tribunal has been removed from the conflict resolution system schematic.

The right of appeal is recognised as an ‘essential safeguard in law’ in international organisations by ILOAT, reflected in the case of Bangasser and others v ILO, (1994) judgment 1330, and reiterated in several other ILOAT judgments since.  A ‘right to appeal’, albeit in criminal cases, is also declared in article 8.2(h), the Pact of San Jose, and echoed in article 2 of Protocol 7 of the European Convention of Human Rights.  The fact that it is enshrined in international conventions is indicative of its importance within any justice system, domestic or international.  As an essential legal safeguard, it could certainly be argued that it is a fundamental and essential term of employment for international civil servants.  It would follow that any move to reform or revoke the right would be a regulatory decision which could not be implemented except with the consent of the staff members, meaning that a failure to do so would render the revised Staff Rule PE-323 unlawful.

Aside from the unlawfulness of the revocation of the right of appeal, the Conciliation Committee’s erstwhile mission has been conferred on a body that is accustomed to dealing with appeals.  Many Administrative Tribunals will not interfere with findings of fact unless they are manifestly erroneous or unreasonable, although the IADB Administrative Tribunal does indeed have the power to hear an appeal de novo.  Staff members would hitherto have had two opportunities to have their cases heard.  With the introduction of the new provisions, the Administrative Tribunal has become a ‘one-stop shop’, thus depriving staff members of the possibility of having their cases reopened and re-examined.  Its new mission as a tribunal of first instance will require a considerable adjustment of its present mandate, statute and its philosophy when approaching cases in order to reflect the evolution of its function.

Pitfalls of mediation
Besides the loss of an avenue of appeal, compulsory mediation may transpire to be counter-productive when attempting to resolve staff disputes because of its mandatory nature.  While mediation can be an exceedingly useful tool if both parties are willing to negotiate, its success depends on the parties coming together voluntarily.  The imposition of compulsory mediation is not conducive to amicable settlements and is wholly inappropriate for cases where the issue turns on a purely legal argument, such as the interpretation of a contract term that will apply across the organisation.  It is also inappropriate where the parties are quite evidently unable to reach consensus on any of the issues in the case, particularly where there have already been attempts to negotiate or settle the claim directly between the staff member and the Bank prior to initiating litigation.  In this scenario, mediation will result in the incurring of further costs and unnecessary delay to both parties.  Although a vetting procedure appears to be in place at the IADB, any Mediation Secretary will need to be extremely vigilant in ensuring that the right cases progress to mediation.

Even if there is scope for consensus, the impartiality of the mediator is fundamental.  A mediator’s remit is often misunderstood by staff members.  A common, but erroneous, perception is that mediators actively participate in the formulation of the terms of a settlement.  The opposite is in fact true; mediators cannot suggest settlement terms to the parties and are under no duty to ensure that settlements are fair or just for either party.  The mediator will be under no duty to assist them, as it would conflict with the mediator’s duty of impartiality.  Quite often, staff members are not entitled to legal representation at mediation sessions, and the IADB is no exception.  As the Bank will benefit from unlimited legal advice from its own in-house department, the resulting inequality of arms leaves a staff member exposed to not receiving the fairest possible settlement through the mediation process, uninformed as to his or her rights and afraid to assert them.  Without a lawyer present, it can be highly intimidating for a staff member to come face to face with his or her manager or colleague, especially where a case revolves around harassment.  It can also be disheartening if the person across the table is one who has already refused to grant an administrative remedy to the staff member, such as a Director of Human Resources.

Reforms such as this one have led to the absurd situation whereby a staff member must file a ‘request’ for compulsory conciliation; a contradiction in terms which appears to be lost on the organisations advocating this solution.

A full copy of the revised IADB Staff Rule PE-323 can be found on the IADB website here:  http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=37223957