Outer Temple’s growing International Organisations Law Team

Members of the OTC International Organisations Team have been instructed in several high profile cases this year, including Sanctions Law disputes and cases before the World Bank Administrative Tribunal, United Nations Appeals Tribunal, United Nations Dispute Tribunal and European Bank for Reconstruction and Development Administrative Tribunal. But what exactly is International Organisations Law?

How many international governmental organisations (“IOs”) exist today? This seemingly straightforward question has kept academics, researches and practitioners busy mostly because nobody knows for certain.  There are, on any view, hundreds of IOs: the Oxford Handbook of IOs puts the figure at more than a thousand while Murdoch University in Australia settles on around 800.  Some commentators are of the view that the figure is closer to 400.  The problem in quantifying IOs is partly one of definition and evolution, combined with the absence of any centralised body whose task would be to keep track of IOs and their establishment and dissolution.

What is beyond doubt is the growing number of people in the world who are affected by IOs and the growing work that IOs themselves undertake. Moreover, notwithstanding budget cuts, the number of people employed by IOs (i.e., international civil servants) also continues to grow in a number of institutions.  Despite the recent threats to their very existence (e.g., South Africa’s threats of withdrawal from the International Criminal Court; the UK’s withdrawal from the EU; the Trump administration’s attitude towards the UN and the US withdrawal from the WHO; and Haiti’s cholera epidemic class action against the UN), the importance and sheer presence of IOs in most areas that affect us cannot be understated. With the recent Supreme Court decisions on immunity of Wallace (Canada) and Jam (United States), this area of law has never been so intriguing.

From the creation of the Central Commission for Navigation of the Rhine in 1815, the oldest – and extant – IO in the world, as well as the International Telegraph Union established in 1865, through to the establishment of large post-war organisations such as the UN, its specialised agencies and the Bretton Woods institutions, there are today a plethora of IOs of different sizes, scope and nature, each with a specialised purpose (e.g., political, economic, financial, migration and security) and virtually every important question of foreign policy, trade and international affairs falls under the auspices of an IO.

Definitions

An IO is an organisation composed primarily of sovereign states, referred to as member states, or of other IOs.  IOs are governed by public international law because they are established by a treaty.  When governments of several states ratify a treaty establishing an IO, the IO in question is given an international legal personality.

IO are not to be confused with coalitions of states such as the G8, where no constituent document exists.  Conversely, IOs are not treaties themselves: the NAFTA is a treaty but it does not establish an IO; it relies instead on the member states for their administration becoming legally recognised as ad hoc commissions.  IOs enjoy certain privileges and immunities which make them out of reach of domestic systems of justice.  As a general rule, legal instruments defining IOs’ privileges and immunities provide for an absolute immunity of jurisdiction amounting to protection against any form of legal process.  The resulting ‘absolute’ immunity from suit of the UN has largely been respected in most countries.

The main privileges and immunities attaching to the IO are:

• immunity from jurisdiction;
• immunity from execution;
• the inviolability of premises and archives;
• currency and fiscal privileges; and
• freedom of communication

Immunity from jurisdiction roughly falls into three categories:

• high-level (the level of Assistant Secretary-General or higher benefits from diplomatic immunity or its equivalent);
• functional (UN personnel have immunity for the things they say or do as part of their official duties: functional immunity); and
• organisational: the UN itself is immune from legal process.

International Organisations Law

Put simply, international organisations law (“IOL”) is the law that applies to disputes and issues relating to international organisations.  There are a number of strands of IOL.  The Outer Temple Chambers IOL practice is divided as follows:

Debarment Regimes of Multilateral Development Banks (MDBs) and International Financial Institutions (IFIs):

International corruption and bribery, representing companies and individuals accused of fraud, corruption collusion and coercion (together, the Sanctionable Practices) before MDB sanctions regimes as well as global investigations and settlement negotiations. Alex Haines recently authored a chapter on MDBs and their sanctions regimes for the 3^rd edition of Lissack and Horlick on Bribery and Corruption in what is the first practitioner’s text on this subject.

Sanctions Law

Advising companies and individuals on all aspects of sanctions law across all regimes, particularly those affecting financial transactions and trade between the US, UK, EU, Russia and Iran. Members of the IOL team regularly represent and advise clients on sectoral sanctions risks relating to prospective commercial transactions, the interaction between UN Security Council resolutions and EU and US law, the EU Blocking Regulation, US secondary sanctions regime, the scope and effect of the Iran nuclear deal (JCPOA) and the post-Brexit statutory framework of the UK sanctions regimes . Members also advise on reporting obligations to the UK’s Office of Financial Sanctions Implementation (OFSI), as well as US, EU and UK delisting applications and civil or criminal penalties arising from sanctions breaches;

International Administrative Law

Representing international civil servants (i.e., the employees of IOs), class actions of individuals, staff associations and international organisations themselves before international administrative tribunals and other international judicial and quasi-judicial bodies. See the list below of international administrative tribunals members of the IOL team have been instructed to appear before.

International Arbitration and ADR

Representing parties in commercial arbitrations (including UNCITRAL and LCIA), mediations, conciliations and settlement negotiations with an international dimension, often involving international organisations;

International Regulatory and Disciplinary Law

Representing both international civil servants and international organisations themselves – with an emphasis on misconduct related to fraud – before the disciplinary bodies, committees and appeals panels of international organisations. Members of the IOL team have, this year, represented senior international civil servants including judges and Assistant Secretary-General ranks before a number of international and European bodies.

Immunities of International Organisations and diplomatic immunities

Advising on prospects of challenging acts of international organisations before national courts and the applicability of international human rights law to organisations (including domestic litigation before the Court of Appeal and Supreme Court);

International Criminal Law and International Humanitarian Law

Instructions before the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and in cases involving the crime of torture under the UN Convention against Torture; and

Legal consultancy

For international organisations including designing internal justice systems and institutional rules and regulations so that they are compliant with international administrative law.

Recent developments in International Organisations Law

In Summer 2020, it was announced that USD $250 billion would be deployed over the next 18 months in spare lending capacity by Multilateral Development Banks following the continued effects of the COVID-19 pandemic.  We can, therefore, expect an increase in activity from the MDBs’ increasingly sophisticated and well-resourced investigatory offices.

Following the US’s  withdrawal from the JCPOA (the Iran nuclear deal) and more general foreign policy under the Trump administration, the EU’s response through the reactivation of its Blocking Statute and the UK’s departure from the EU and the resulting UK Sanctions Regime, the sanctions landscape has become more complicated.

Our International Organisations Law barristers (the IOL Team) have unrivalled experience in the laws, systems and frameworks of international organisations, having been instructed in cases involving more than 30 international institutions worldwide (see the list at the bottom of this article). All cases relating to international organisations require expert lawyers with an understanding of the complex workings of each institution, whether they deal with corruption, regulation, employment rights, whistleblowing or policy making in the context of advocacy, litigation, investigations and advisory work.

International Court and Tribunals before which members of the IOL Team have been instructed

• World Bank Administrative Tribunal (Washington DC)
• United Nations Dispute Tribunal (New York)
• United Nations Appeals Tribunal (New York)
• European Bank for Reconstruction and Development Administrative Tribunal (London)
• International Labour Organisation Administrative Tribunal (Geneva)
• Commonwealth Secretariat Arbitral Tribunal (London)
• Inter-American Development Bank Administrative Tribunal (Washington DC)
• Black Sea Trade and Development Bank Administrative Tribunal (Thessaloniki)
• Asian Development Bank Administrative Tribunal (Manila)
• African Union Administrative Tribunal (Addis Ababa)
• Organisation of American States Administrative Tribunal (Washington DC)
• Pan American Health Organisation Board of Appeal (Washington DC)
• European Investment Bank Appeals Panel (Luxembourg)
• International Maritime Organisation Staff Appeals Board (London)
• General Court (Luxembourg)
• Court of Justice of the EU (Luxembourg)
• International Criminal Tribunal for the Ex-Yugoslavia (The Hague)
• World Bank Sanctions Board (Washington DC)
• Asian Development Bank’s Integrity Oversight Committee (Manila

Find out more

To find out more about our International Organisations Team on our expertise page. Alternatively, please contact our International Organisations Practice Director, David Smith (+44 (0)20 7427 4905), who will be pleased to provide you with more details of our expertise in this area.

News 18 Dec, 2020