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Chambers’ international law team successful in four landmark European Bank for Reconstruction and Development Administrative Tribunal Judgments

On 20 February 2020, the European Bank for Reconstruction and Development Administrative Tribunal (EBRDAT or Tribunal) delivered four judgments (Cases No. 2019/AT/02+03+04+05 ) in cases involving the right of contractors (as opposed to traditional employed international civil servants) to access the EBRD’s internal justice system. Alex Haines, having been instructed in 2019 and assisted by Chloë Bell in the litigation, appeared on 14 January 2020 on behalf of four contractors before the full Tribunal in London, the first time in its history that all five judges heard an oral hearing together. He argued that all four contractors had been de facto members of EBRD staff, that the EBRD had failed to accord them several of the rights and benefits available to staff who are terminated for reasons of redundancy and that, notwithstanding that they had no contracts of employment, the correct venue was the EBRD’s internal justice system.

When the original request for review was lodged in 2019, the EBRD President had refused to allow the contractors access to the EBRD’s internal justice system. The EBRD also argued that its President’s notification was not an administrative decision capable of being grieved and that the contractors could not be employees because they had no express or implied contract with the EBRD. The majority of the Tribunal rejected the EBRD’s arguments in their entirety: “The absence of a formal employment contract with the bank or even a contract that excludes an employment relationship with the Bank does not alone prevent the Tribunal from asserting jurisdiction over an Appellant’s non-frivolous claim to certain staff member benefits as a de facto employee” (para. 60 of judgment 2019/AT/02).

The important international human rights law issue of access to justice was also addressed by the Tribunal: “The agreements entered into by the Bank, [the agency] and [the four contractors] give [them] no means of presenting a claim to English or Welsh courts that [they are] entitled to Bank benefit as de facto employee[s] of the Bank. At this juncture, only the Bank’s internal administrative review process can provide a forum for addressing such claims” (para. 65).

The reason these judgments are landmark in international administrative law and especially in the law of the EBRD is that they go a step further than previous judgments relating to contractors in two areas:

Firstly, they set a marker for possible future cases ensuring that these will not be unduly delayed. Until now, the EBRD had relied on the same argument to prevent contractors from having their cases heard at all. But the Tribunal adopted the following standard when this type of jurisdictional issue is raised: “Whenever someone working for the Bank makes a plausible, non-frivolous claim that he/she is entitled to the rights of a staff member because of a de facto employment relationship with the Bank, that person is entitled to invoke the jurisdiction of the Bank’s dispute resolution processes to consider that claim” (para. 71). In future cases, the EBRD will be unable to delay the process by arguing absence of jurisdiction on ratione personae grounds (subject to the conditions laid out by the Tribunal) and such cases will have their merits heard in good time.

Secondly, the Tribunal awarded the contractors’ costs (para. 74). While this award may be taken for granted in many other jurisdictions (including before other International Administrative Tribunals such as the World Bank Administrative Tribunal), it has not, until now, been standard practice at the EBRDAT, meaning that certain appellants, even though successful at the jurisdiction phase of the proceedings, were made to wait until the end of the case for their legal fees to be refunded (if at all). The Tribunal found that because the contractors had successfully opposed the Bank’s objection to jurisdiction, it would award reimbursement of their legal fees expended solely in opposition to the Bank’s (unsuccessful) jurisdictional challenge. This award reduces the chances of individual appellants being starved out of litigation because they run out of funds.

The EBRD – a multilateral development bank headquartered in London and established in 1991 to help build a new post-Cold War era in Central and Eastern Europe – set up its Tribunal in 2002 which is the final stage of appeal for the resolution of cases submitted by members of staff alleging the non-observance of their contracts of employment or terms of appointment, and concerning dismissals and disciplinary matters.

The EBRDAT is composed of five judges, all of whom are nationals of different Member States of the EBRD. The Appeals Procedures of the EBRDAT were approved by the Board of Directors in 2006 and they govern the appellate process before it. In considering appeals, the EBRDAT is not bound by English law, but by the internal law of the EBRD and generally recognised principles of international administrative law.

As such, it is one of a number of international administrative tribunals together with the World Bank Administrative Tribunal (WBAT), the International Monetary Fund Administrative Tribunal (IMFAT), the UN’s Dispute and Appeals Tribunals (UNDT and UNAT), the International Labour Organisation Administrative Tribunal (ILOAT) and the Administrative Tribunal of the Council of Europe (COEAT). Unlike the internal justice system of the UN, the EBRD does not operate a two-tier judicial system because the body sitting beneath the EBRDAT (the Administrative Review Committee) is not empowered to make decisions, instead making recommendations that can be rejected by the EBRD President.

Members of Outer Temple Chambers’ specialist international law team are currently instructed in a number of cases involving several international organisations. The team’s work ranges from advisory work to training, investigation, litigation and advocacy before international courts and tribunals including the EU’s General Court, International Administrative Tribunals and LCIA arbitrations.

Alex’s practice areas include: (i) business crime and corruption; (ii) sanctions; (iii) regulatory and disciplinary proceedings; (iv) the institutional law of international organisations including their immunities and international administrative law; (v) international arbitration; and (vi) financial services investigations. He regularly litigates before international tribunals including in Washington DC, New York City, London and Luxembourg, involving cases with more than 25 international organisations including the UN, the World Bank Group, the International Monetary Fund, the European Investment Bank and the African Development Bank. He speaks fluent French and Spanish.

Chloë’s practice areas include: (i) commercial; and (ii) international law with a particular focus on EU law. She has previously worked at the Court of Justice of the European Union and has appeared there as an advocate. She speaks fluent French.

To find out more, please contact businessclerks@outertemple.com

News, International 2 Mar, 2020

Authors

Alex Haines

Call: 2007 (England & Wales); 2019 (New York); and 2020 (Ireland)

Chloë Bell

Call: 2015

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