IFI - Session 6 Dispute Resolution Flashcards
Between the late 1940s and 1980, how many international administrative tribunals were in operation? How has this changed today?
The United Nations Administrative Tribunal and the Administrative Tribunal of the International Labor Organisation. Today, there are over 15 international administrative tribunals.
The United Nations Administrative Tribunal and the Administrative Tribunal of the International Labor Organisation are responsible for what kind of cases?
Employment disputes.
In the years between the late 1940s and 1980, there were essentially two major international administrative tribunals in operation—the United Nations Administrative Tribunal (UNAT), and the Administrative Tribunal of the International Labor Organisation (ILOAT). Which organizations did they serve?
UNAT served the UN family of organizations
ILOAT served the ILO and other, mainly European-based, organizations that had accepted its jurisdiction
The largest number of cases arose between the late 1940s and 1980 from the UNAT and ILOAT. What did scholars observe?
International law scholars observed that these tribunals recognized and applied general principles of international civil service law, although there was no formal basis for doing.
The convergence between the various tribunals was noted not only by scholars but also by the tribunals themselves. Which two cases were important and spoke of rapprochement.
The World Bank Administrative Tribunal (WBAT), in its very first decision, the landmark de Merode case (1981), mentioned the tendency towards a certain rapprochement in the solutions provided by other administrative tribunals in comparable situations.
Similarly, Lindsey (1992), the first decision of the Asian Development Bank Administrative Tribunal (ADBAT), spoke of “a large measure of ‘common’ law of international organizations to which, according to the circumstances, the Tribunal will give due weight.”
What was the obvious concern of having that many international administrative tribunals?
As early as 1973, concerns were expressed about the risks of conflicting jurisprudence if there were multiple tribunals serving international organizations. One administrative tribunal for all organizations would have been desirable.
In addition to these new tribunals, the UN introduced major reforms in its internal justice system in 2009. What did these reforms entail?
The UNAT was abolished and replaced by a two-tiered justice system, consisting of three Dispute Tribunals that would hear cases in the first instance and one Appeals Tribunal (UNAppT) to conduct an appellate-style review, as the final and binding stage.
Notably, both staff members and the Secretary-General may appeal decisions of the Dispute Tribunals to the Appeals Tribunal. The UNAppT has also made clear that the
case law of the former UNAT is not necessarily binding on it.
The practice of the tribunals in terms of citing cases from other tribunals varies widely. How do the practices of the ILOAT and former UNAT differ from the World Bank, IMF, and ADB?
It is quite uncommon for the ILOAT or the former UNAT to cite other tribunals, perhaps because they each have their own extensive jurisprudence to draw on.
This contrasts with the practice of the tribunals of the World Bank, IMF and
ADB, which do occasionally cite cases from other tribunals.
Which IMI’s AT statutes explicitly refers to generally recognized principles for judicial review?
IMF.
What are the three areas where international administrative tribunals converge? (without referring to each other though)
(1) abolition of position
(2) disciplinary decisions
(3) review of rules of general applicability or so-called “regulatory decisions
In abolition of position questions, what are the three questions where tribunals converge?
- Was there a valid business rationale for making the incumbent redundant (e.g., outsourcing, restructuring, new skills required) and not simply
a pretext for discrimination or dealing with substandard performance?
– Were the applicable procedures followed, e.g., notice to affected staff?
– Did the organization make sufficient efforts to find alternative positions
for staff who would otherwise lose their jobs?
In review of disciplinary decisions questions, what are the areas where tribunals converge?
Where do they diverge?
(i) Have the facts been established and do they amount to misconduct under the organization’s standards of conduct?
(ii) Was the sanction provided for in the staff rules and not disproportionate
to the offense?
(iii) Did the organization follow proper procedures and respect due process
But there are perhaps two aspects of disciplinary cases where interesting
differences exist between the tribunals, and no uniform practice exists:
(i) the standard of proof to be applied;
(ii) the rights of victims of misconduct, e.g., harassment or retaliation,
who have reported such behaviour and asked for an investigation of the
perpetrator
Which tribunal has a higher standard for evidence in misconduct cases?
ILOAT has the “beyond reasonable doubt” standard. UNAppT has the “clear and convincing” standard (lower standard).
In regard to review rules of general applicability, how does the practice of the ILOAT differ from the IMFAT? How does the African Development Bank AT go even further?
ILOAT does not allow for complaints challenging a decision of general applicability when they have no immediate and direct effect on employees.
IMFAT allows that.
The Statute of the African Development Bank Administrative Tribunal (Art. iv) goes so far as to authorize the Tribunal to issue advisory opinions upon request by the Board of Governors, presumably even before a regulatory decision is taken (although this provision has not been invoked to date).
Is there more convergence than divergence?
But it has to be said that there is still far more convergence than divergence
in the tribunals’ jurisprudence. This is perhaps not surprising—particularly
since the same tribunal judges often sit on more than one tribunal and bring
their other experience with them.
