Category

International Administrative Law

Sep 10
0

Legal Expenses Insurance – Game Changer for International Civil Servants

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

Earlier this year, lawyers from BWL were approached by a Manager at a large International Organisation based in London who had been, in his view, a victim of retaliation. As as a result, he was not promoted and his employer organisation failed to award him the pay rise he deserved.

He notified his household insurers who confirmed that his policy included legal expenses insurance for grievances arising out of employment disputes with his employer. Initially, his insurance company wanted to appoint an English employment lawyer to represent him throughout the international organisation’s internal justice system. Lawyers from BWL explained that the applicable law (i.e., international administrative law or ‘IAL’) was specific to international organisations and the insurance company eventually agreed to instruct experts in IAL to represent the employee in question. Once the formalities had been completed, the employee’s lawyers were able to represent him before the organisation and invoice the insurance company directly. A settlement was eventually reached, and at no stage did the employee have to pay for his legal representation.

This success story is a small step in balancing out the inequality of arms that exists all to often between international organisations and their employees. International Civil Servants are advised to examine the terms and conditions of their household insurance to check if it covers legal expenses for their employment disputes. They should also be aware that being insured does not mean that they have to accept any lawyer provided by the insurers, who will often not have the expertise required to represent them effectively.

Jun 18
0

Strikes, immunity from suit and the recognition of unions at the European Patent Organisation.

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

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.

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Nov 26
0

Bretton Woods Law’s unique Global Approach to an International Practice

By | Administrative Law, Centre of Excellence, IAL, IAL Seminars, International Administrative Law, Multilateral Development Banks, News | No Comments

Law firms and barristers chambers often claim that they practise throughout the world and describe their work as international; but what does it mean to have a truly international practice? For the lawyers at Bretton Woods Law, an international practice means exactly that: practising in different countries, in different languages, with people of different nationalities and cultures, and within different international organisations. Since its birth in spring 2012, BWL has set itself apart from other law firms and barristers chambers by living up to its ever growing reputation as an established team of preeminent international law specialists with a truly global reach. BWL’s international practice manifests itself in the following ways:

 

1. International anti-corruption practice: investigations into alleged sanctionable practices in development projects worldwide

In the last 18 months, the lawyers at BWL have undertaken investigations into World Bank and Asian Development Bank (ADB) funded projects carried out in Tanzania, Zimbabwe, Sierra Leone, Southern Sudan, Afghanistan, Kyrgyz Republic, Mongolia, Cambodia, Vietnam, Ukraine, Kosovo and Sri Lanka. They have worked directly with the World Bank’s Integrity Vice-Presidency (INT) and the ADB’s Office of Anticorruption and Integrity (OAI), and have established themselves as experts in this specialist field. Members of Bretton Woods Law are also currently instructed by the African Development Bank’s (AfDB) Integrity and Anti-corruption Department (IACD) and have workings with the Global Fund’s Office of the Inspector General.

 

2. International organisations and their internal justice systems

The lawyers at BWL currently operate in seventeen international organisations, based in nine countries and spread over four continents. Their work is varied and they currently act for:

  • the staff associations, councils and unions of the European Bank for Reconstruction and Development (EBRD), the Inter-American Development Bank (IDB), the Pan American Health Organisation (PAHO), the European Patent Office (EPO);
  • individual international civil servants and board members at the International Criminal Court (ICC), the International Maritime Organisation (IMO), the International Oil Pollution Compensation Funds (IOPC) the Commonwealth Foundation, the United Nations Development Programme (UNDP), the International Coffee Organization (ICO), the EBRD, the IDB, the PAHO, the EPO and the ADB; and
  • the Commonwealth Secretariat (in relation to cases arising out of grievances within its own internal justice system).

Beyond assistance and representation in the disciplinary boards and the first-tier tribunals such as the Conciliations Committees, the Grievance Committees and the Joint Appeal Boards, the lawyers at BWL also represent clients in the IDB Administrative Tribunal in Washington DC, the EBRD Administrative Tribunal in London, the ADB Administrative Tribunal in Manila and the International Labour Organisation Administrative Tribunal (ILOAT) in Geneva.

 

3. International Alternative Dispute Resolution

Beyond traditional litigation and advocacy within international organisations’ internal justice systems, the lawyers at BWL are experts in international Alternative Dispute Resolution (ADR) and currently represent the Uruguayan, Guyanese, Brazilian, Guatemalan, Bolivian, Nicaraguan, Mexican, Paraguayan, Panamean, Costa Rican and Argentinian Country Offices of a large international organisation in formal mediation proceedings. BWL also has experience of mediations arising out of employment disputes within the EBRD and the Commonwealth Secretariat in London. Through its International Alternative Dispute Resolution Services (iADRs), BWL’s dedicated team ensures it offers known experts in International Organisations Law who are CEDR trained and accredited mediators who have the ability to broker settlement agreements in the most difficult and challenging of circumstances.

 

4. Multilingual lawyers and offices worldwide

Boasting seven specialist lawyers of four different nationalities and diverse backgrounds, who between them practise (written and spoken) in English, French, Spanish and German, BWL has representative offices in all the important seats of international organisations worldwide: London, Geneva, New York City, Washington DC, Tunis and Manila. Members of Chambers have lived and practised in the United Kingdom, Germany, the United States of America, Tunisia, France, Switzerland, East Timor, Papua New Guinea, Belize, Cyprus, the Turks and Caicos Islands, the Netherlands, Australia and the Gaza strip.

By travelling around the globe representing International Civil Servants who face intricate employment issues, the BWL team faces varying approaches, languages and cultures on a daily basis, all of which they takes in their stride. This innate empathy with different nationalities enables them to represent their clients against large international organisations with a very human approach. The same can be said for their work alongside companies who have been accused of fraud, corruption and bribery on projects funded by multilateral development banks (MDBs). Their ability to carry out investigations and research involves dealing with clients, including international organisations and International Financial Institutions (IFIs), from around the world, and their cultural sensitivity and international experience is highly advantageous and benefits clients and colleagues alike.

Oct 23
0

The First Conference of the BWL International Administrative Law Centre of Excellence

By | Centre of Excellence, IAL, International Administrative Law, London, News | No Comments

Around fifty professionals working in the area of International Administrative Law congregated for the inaugural BWL Centre of Excellence Conference in the heart of London between the 17-18 October to hear and discuss a wide variety of presentations on the current legal issues facing international civil servants.

Delegates attended from around the globe to be updated and debate issues such as delay, human rights, immunity from suit, equality of arms, conflicts of interests and many other current big issues facing international civil servants.

Present at the conference were representatives and members of Staff Associations and Unions, managers and lawyers working for International Organisations, judicial representatives, academics and external legal practitioners specialized in the field of International Administrative Law.

Many of those attending joined the various committees that will now commence working to improve the quality and accessibility of International Administrative Law together with the sharing of best practices that currently exist within the many International Organisations.

The International Administrative Law Centre of Excellence is a registered community interest company established with a mandate to improve the state of International Administrative Law.

Following the success of this first assembly a second conference will be held in the autumn of 2014 in London.

Sep 11
0

The Success of which we cannot speak

By | 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.

Jul 31
0

A District Court in Holland ‘sets aside’ the immunity of the European Patent Organisation

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

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.

 

Read judgment

[seal] DISTRICT OF THE HAGUE
DISTRICT OF THE HAGUE SECTION

DISTRICT COURT OF THE HAGUE
District of The Hague Section

Case no.: 1223887/12-31860
16 July 2013

Judgment in respect of jurisdiction in the matter of:

The legal entity according to international public law the EUROPEAN PATENT
ORGANISATION, established in Munich (Germany), as well as Rijswijk (South Holland),
claimant in the procedural matter respondent in the principal proceedings, hereafter referred to as “EPO”, authorised representative: Mr G.R. den Dekker

and

[details omitted] respondent in the procedural matter
claimant in the principal proceedings, hereafter referred as [details omitted] authorised representative: [details omitted]

Proceedings

The District Court has considered the following documents:

  •   Summons dated 3 December 2012;
  •   Motion for the Dutch court to decline jurisdiction and transfer the case
  •   Response to the motion
  •   Evidence submitted.

Finally, a judgment was issued on the matter.

Facts
[details omitted] was appointed to the EPO on 1 January 1988 and was last employed as a researcher for the European Patent Office. [details omitted] is in a dispute with the EPO pertaining to amendments to his pension scheme.

The European Patent Office is a body of the EPO and is established, amongst others, in Rijswijk where [details omitted] performed his duties.

The Service Regulations for Permanent Employees – hereafter referred to as the Service Regulations – are applicable to [details omitted]’s employment contract. The Service Regulations provides, amongst others, for an incapacity for work scheme in the form of a disability pension. The following statement from the Board of the EPO, submitted at the meeting of 13 to 15 December 1994, applicable:

“The Administrative Council and the President of the Office note that when reviewing the law applied to EPO staff the ILO Tribunal considers not only the legal provisions in force at the European Patent Organisation but also general legal principles, including human rights.

The Administrative Council also noted with approval the President’s declaration that the Office adheres to the said legal provisions and principles.”

[details omitted] received a disability pension from 2003 due to his incapacity to work. [details omitted] has since left the employment of the EPO and has received financial compensation from [details omitted]. Furthermore, [details omitted] is also receiving a disability allowance of [details omitted] per month.

The European Patents Convention of 5 October 1973 and the European Patent Organisation’s Protocol on Privileges and Immunities of 5 October 1973 are applicable to the EPO, amongst others.

On the grounds of art. 13 of the Convention (former) employees of the EPO may submit disputes with the EPO to the Administrative Tribunal of the International Labour Organisation (hereafter referred to as: ILOAT). This appeal is only admissible when the interested party has exhausted all means of redress available to him pursuant to the Service Regulations, the Pension Scheme or the employment terms and conditions for other personnel.

[details omitted] submitted an appeal against the EPO decision to convert his disability pension into a disability allowance by email on 11 March 2008. The Internal Appeals Committee (hereafter referred to as the IAC) unanimously advised the President of the EPO on 9 August 2011 to allow the appeal virtually in full. Subsequently the President of the EPO, Mrs [details omitted] did not adopt a significant proportion of the advice of the IAC. On 27 February 2012 [details omitted] submitted an appeal against this decision to the ILOAT. On 15 June 2012 [details omitted] wrote to the registrar of the ILOAT by email asking how long the ILOAT procedure would take. In response to this email, the registrar to the ILOAT informed [details omitted] by email on 2 July 2012:

“Dear Mr [details omitted]

Complaint No. 3

I have your email of 15 June.
The duration of the exchange of written pleadings is, as usually, about one year.
However, as you are well aware we are facing a situation where out of 425 pending cases, 150 concerns the European Patent Organisation, THAT IS 35.4%.  This is obviously disproportionate in view of the fact that a total of 48,483 staff members have access to our Tribunal and the EPO has “only” 6,847 staff members.  In addition, of these 425 cases we have at the moment, 209 are ready to be dealt with by the Tribunal of which 101 are against the EPO, that is 48,3%. Considering that the Tribunal examines around 50 cases per session, including four or five against the EPO, you may have a correct idea of the conclusions one can draw from these facts.

Yours sincerely,
[details omitted] Registrar”

The ILOAT convenes two sessions per year, and therefore should the situation not change it would take around 15 years before [details omitted]’s case was heard by the ILOAT.

Application in this matter

The EPO’s application is, in brief, for the District Court of Hague to rule that it is not competent to hear this dispute, as it has no jurisdiction in this matter, given that the EPO has immunity and, on a subsidiary point, given the contents and scope of the claims by [details omitted], including, amongst others, the costs of the proceedings to be awarded against [details omitted].

The EPO is submitting the following as a basis for this application. The EPO is an intergovernmental organisation with 38 member states enjoying immunity on the grounds of the aforementioned Privileges and Immunities Protocol associated with the 1973 European Patents Convention. The EPO benefits from this immunity in the context of its official activities. According to this Protocol official activities are taken to refer, amongst others, to those activities which are strictly necessary for the administrative and technical implementation of its tasks as defined in the Convention. The work performed by [details omitted], carried out at the time for the EPO, fall under this. There is a special procedure for resolving disputes between the EPO and its (former) employees. An appeal against a disputed decision by the EPO should first be submitted to the President; should the latter determine there are no grounds for the dispute then the IAC shall be asked for advice. The President shall issue a decision with grounds after the IAC advice. An appeal against this may be submitted to the ILOAT. This course of proceedings is sufficient to be referred to as a fair process in the sense of art. 6 of the ECHR, to which the EPO is, furthermore, not a party. In addition to this the ILOAT is entitled to alter the time for the proceedings.

[details omitted] in this matter

[details omitted] submitted with grounds against [details omitted] that this, in brief, the 15 year procedural waiting time amounted to him being deprived of a fair process within a reasonable period by an independent and impartial court as granted to all under art. 6 of the ECHR. This therefore overrules the EPO’s immunity and this district court is therefore competent to hear this case.

Assessment of the matter

Given that the decision of the President of the EPO on the appeal of [details omitted] against the conversion of his disability pension into a disability allowance is a judgment by a non-independent court and that the judgment by the ILOAT on appeal is, in itself, both independent and impartial, yet were this to take 15 years it would deprive [details omitted] of a fair process. This would lead to the EPO’s immunity becoming disproportional and may therefore be overruled. Taken together this means that in this exceptional case that the court, which under normal circumstances would hear disputes pertaining to pension regulations, does have jurisdiction. Given that the EPO is also established in Rijswijk this district court is a competent court. This does not detract from the fact that this may create the possibility of the District Court of The Hague influencing the official activities of the EPO. This is, after all, the consequence of the immunity – which the EPO would in principal be awarded in these types of dispute – being set aside, but is something the EPO shall have to bear in this exceptional case.

Nor does this detract from the fact that the EPO is not a party to the ECHR; this matter is concerned with determining an individual’s civil rights by an independent court within a

reasonable time period and as such is a human right protected by the ECHR and – according to the aforementioned statement with the EPO’s Service Regulations – human rights are explicitly applicable to this matter.

Finally, it has neither been submitted nor has it become evident that the ILOAT is taking measures in order to shorten the waiting time for hearings involving employees of the EPO, and therefore [details omitted] may reasonably assume that the period taken to hear his case will be too long.

Taken together this leads to the conclusion that the submission in the procedural matter should be rejected. Having found against the EPO the latter shall be ordered to pay the costs of proceedings in this case.

Judgment

The District Court,

Rejects the submission on the procedural matter;

Orders that this judgment may be submitted to appeal;

Orders the EPO to pay the cost of proceedings incurred by [details omitted] estimated to amount to €500.00 in payment to his authorised representative;

Refers the principal proceedings to the case-list hearing of 13 August 2013 to hear the counter submission;

Reserves judgment on the other matters.

This judgment was issued by Mr R.J. ter Kuile, district court judge, and read out at a public hearing on 16 July 2013 in the presence of the clerk of the court.

[signatures]

Copy certified by the clerk of the district court for the district of The Hague [initials]

 

 

 

May 07
0

The International Administrative Law Centre of Excellence launches its quarterly newsletter

By | 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

May 01
0

Inter-American Development Bank abolishes its Conciliation Committee

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

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

May 01
0

The Reform of the UN System of Administration of Justice – the UNRWA example

By | Centre of Excellence, IAL, International Administrative Law, News | No Comments

The Reform of the United Nations Administration of Justice System (“UNAJS”), which came into effect on 1st July 2009, was long overdue and has brought with it some significant improvements.  Certain aspects however, long petitioned by staff associations, IAL practioners and academics, and recommended by the Redesign Panel on the UNSAJ, have not yet been achieved.

In its Resolution 61/261 of 4th April 2007, the General Assembly criticised the UNAJS by stating that is was “slow, cumbersome, ineffective and lacking in professionalism, and that the current system of administrative review is flawed”. It decided “to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike”.

The overhaul of the administration of justice system was especially important for the United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”).  Over the years, many cases were brought within its justice system by its employees, including a significant number of cases brought before the former UN Administrative Tribunal in New York (“old UNAT”).  The large volume of cases within UNRWA’s internal justice system is hardly surprising considering that UNRWA employs over 29,000 local staff, and nearly 120 international staff members.

The structure of the previous formal justice system within the UN, including UNRWA, provided for a one-tier system.  The main bodies in which the formal processes of the internal justice system were initiated (the Joint Appeals Board and the Joint Disciplinary Committee), conducted peer reviews which made recommendations on the dispute; these were then submitted to the UN’s Secretary-General (or the Commissioner-General in the case of UNRWA) who made the final decision. This decision could then be challenged by the staff member before the old UNAT.

In line with the UN’s new two-tier system of administration of justice and in agreement with the UN Secretary-General, UNRWA established its own first instance Dispute Tribunal, the UNRWADT in Amman, effective from 1st June 2010. A Special Agreement dated 11th December 2009 was concluded between the UN and UNRWA’s Commissioner-General by which UNRWA accepted the terms of the jurisdiction of the new UNAT.

As a transitional measure, appeals by UNRWA staff members following a Joint Appeals Board report were receivable by the UNAT if the final decision on the appeal was taken by the Commissioner General on or after 1 July 2009.  The UNRWADT, through a single judge, has so far rendered 92 judgments in nearly three years which is a significant number. 44 applications were dismissed on receivability grounds, 39 applications were dismissed on the merits, two judgments were interpreted, one judgment was on remedies, five applications were successful and one was partially successful.

In an attempt to rebalance the inequality of arms between international organisations and their employees, the General Assembly in its resolution 63/253, decided that professional legal staff in the Office of Staff Legal Assistance shall assist staff members in processing claims through the formal system of administration of justice. In this respect, UNRWA has created the position of Legal Officer, based at UNRWA’s HQ in Amman, who advises staff on employment matters and who may assist in preparing staff submissions to the Agency, the UNRWADT and the UNAT. It remains to be seen how effective this assistance can be considering the vast number of UNRWA’s local staff.

Compared to the International Labour Organisation Administrative Tribunal (“ILOAT”), the potential remedies before the UNDT and UNAT are few in number.   Although the Tribunals have the power to order rescission of the contested decision and specific performance, in cases where the contested administrative decision concerns appointment, promotion or termination, the Tribunal must indicate the amount of compensation that “the respondent may elect to pay as an alternative to the rescission of the contested decision or specific performance ordered” (Article 9 of the UN Appeals Tribunal’s Statute). In practice, the Secretary-General almost always opts for compensation instead of changing the wrongful decision.  In contrast to this, the ILOAT decides itself whether or not rescission or specific performance is possible, and if not it awards compensation. The UNAT judged this to be “a glaring example of injustice and discrimination between the two categories of staff members working under the United Nations system”.  This situation is particularly problematic in the case of UNRWA’s local staff, given the employment opportunities, or lack thereof, for many Palestinian Refugees.

Staff associations play an important role in protecting the interests of staff members of international organisations. The Redesign Panel recommended that because staff members are sometimes reluctant to enter the formal justice system for fear of reprisal, Staff Associations should have the right to bring actions independently to enforce the Staff Rules and Regulations.  This recommendation has not yet been taken up and Staff Associations only have a right to submit a “friend of the court” brief (Article 17 of the UN Appeals Tribunal’s Rules of Procedure).

It remains to be seen how efficient the new UN internal justice system will be for UN and UNRWA staff members.  At Bretton Woods Law, we will continue fighting to improve this system in the context of the Bretton Woods Law International Administrative Law Centre of Excellence.

Apr 30
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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 | 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.

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