Over the past forty years, globalization has made its impact on the law by enhancing the international nature of domestic laws and by heightening the relevance of international organizations. As international organizations have expanded in number and prominence, the traditional boundaries of domestic legal systems have been re-examined. The expansion of employee rights and benefits has exerted upward pressure on international organizations, whose jurisprudence tends to evolve in tandem with domestic law. Thus, international law has increasingly recognized employee rights.
The doctrine of privileges and immunities addresses the tension between international organizations and domestic legal systems by encouraging the development of internal dispute resolution processes that confer a common set of rights among employees. Responding to their obligations under international law and with an eye toward efficient and harmonious staff relations, international organizations have developed multi-layered dispute resolution systems.
This article will briefly discuss the legal framework of privileges and immunities, and describe the dispute resolution programs of several international organizations, including the International Monetary Fund (IMF); International Labour Organization (ILO); United Nations (UN); and World Bank.[i] Next, the article will analyze the different approaches and evaluate their effectiveness. The article will conclude with a review of challenges facing dispute resolution systems, and recommend increased transparency and collaboration as powerful tools for advancing workplace relations and the missions of international organizations.
The critiques and recommendations in this article, while offered through the lens of international organizations, may prove instructive for any organization or company designing or evaluating mechanisms for fairly and efficiently resolving workplace disputes. Indeed, with globalization now increasing competition, expanding the reach of employers, and influencing the rights of employees worldwide, strong internal dispute resolution systems may be not merely advisable, but imperative for multinational corporations, among others.
II. Privileges and Immunities
Following World War II, major powers acknowledged the important role that international organizations can play in promoting international cooperation. The founders of international organizations took note that the healthy functioning of their institutions hinged on the freedom to act on behalf of diverse, global memberships without intrusion by domestic legal systems. The creation of domestic laws granting privileges and immunities thus became crucial.[ii]
The United Nations provides an example of the legal framework underlying international status. The UN’s privileges and immunities appear in detail form in the Convention on the Privileges and Immunities of the United Nations (“General Convention”). The General Convention defines the UN’s legal personality as including the rights to contract, acquire and dispose of property, and institute legal proceedings.[iii] It clarifies that the UN’s jurisdictional immunity extends to every form of legal process, except when “expressly waived.”[iv]
The ILO, IMF, and World Bank enjoy similar immunity from domestic judicial processes, deriving from their founding documents as well as the UN Convention on the Privileges and Immunities of the Specialized Agencies (“Special Convention”).[v] The Special Convention, like the General Convention, provides that agencies “shall enjoy immunity from every form of legal process except . . . [where] they have expressly waived their immunity.”[vi] Although covered by the Special Convention, the World Bank, in its own Articles of Agreement, interestingly does not foreclose suits by non-members.[vii] The reach of the Bank’s immunity thus remains open to interpretation; in practice, however, the Bank may assert and enjoy broad immunity.
The immunity of international organizations typically bars employees with employment-related grievances from obtaining redress in domestic courts. Recognizing that such circumstances abridge significant individual rights, the international legal community recognizes a corresponding duty on the part of international organizations to provide “reasonable alternative means” for resolving employment disputes.[viii] Today, dispute resolution procedures are firmly entrenched in the frameworks of many international organizations.
III. Internal Dispute Resolution Practices at Individual International Organizations
International organizations maintain innovative internal mechanisms for resolving employment-related disputes. This section examines the procedures of several international organizations.
A. INTERNATIONAL MONETARY FUND
The IMF was formally established in 1945 as a collective response to the economic instability wrought by the Great Depression and World War II.[ix] In particular, the IMF’s founding member countries sought to promote collaborative, rather than restrictive, monetary and trade relations as countries worked to reinvigorate their currencies and economies.[x] The IMF continues to manage the international monetary system that permits purchases by and between individuals and countries worldwide.[xi] The Fund is a relatively small institution, composed of about 2,400 staff members, with most of its professional staff serving as economists and financial experts.[xii] It maintains a comprehensive system of formal and informal dispute resolution procedures for employees.
1. Informal Procedure
The Office of the Ombudsperson serves as the primary program available to staff for informal resolution of employment disputes. Use of the Office is voluntary, and recourse to the Ombudsperson is not a prerequisite for using formal procedures.
The Ombudsperson counsels staff and assists the resolution of work-related disputes through mediation and other means, including outreach to managers, with the staff member’s consent.[xiii] The Ombudsperson exercises strict confidentiality.[xiv] The Ombudsperson also presents annual reports regarding the Office’s caseload to the Fund’s Managing Director and staff.[xv]
In 2012, the IMF created a new Mediation Office.[xvi] The Fund’s part-time Mediator will operate independently of the IMF’s management and departments.[xvii] In addition to mediating employment-related conflicts, the Mediator will reach out to staff about the Office’s services.[xviii]
2. Formal Procedure
The Fund has three formal processes for resolving staff member conflicts: Administrative Review, a Grievance Committee, and the IMF Administrative Tribunal.
Administrative Review. Administrative Review enables staff to obtain review of a contested decision first by a department head and then, if necessary, by the Human Resources Department (HRD). A request for review should detail the nature of the decision at issue, the reasons for the staff member’s grievance, any alleged inconsistencies with IMF policy, and the relief sought.[xix]
Staff must seek Administrative Review before requesting consideration by the Grievance Committee, unless the disputed decision was made by Human Resources or the Managing Director, in which case staff may proceed first to the Grievance Committee.[xx]
The Grievance Committee. The Grievance Committee is an advisory body to the Managing Director of the IMF. The Committee serves as a neutral three-person panel, including a chairperson, a staff member appointed by the Staff Association Committee (SAC), and a staff member appointed by management.[xxi]
The Committee chair, an independent professional with relevant experience and legal expertise, is selected by the Managing Director following consultation with the SAC.[xxii] The Committee’s proceedings and recommendations to management are strictly confidential.[xxiii]
The Grievance Committee reviews complaints brought by staff alleging inconsistencies between management decisions and IMF regulations governing conditions of employment.[xxiv] Typically, the Grievance Committee holds oral hearings, but with the parties’ consent, may consider a grievance on the written record alone.[xxv]
In cases in which the grievant elects to be represented by legal counsel, a representative from the Legal Department traditionally will represent the Fund.[xxvi] The SAC maintains a library of cases and has a Legal Advisor available for consultation by staff. If the Grievance Committee deems a grievance “well-founded in whole or in part” it can recommend reimbursement of the grievant’s legal fees and other costs.[xxvii]
At a hearing on the merits, both parties may present evidence, and examine and cross-examine witnesses under oath.[xxviii] Following the hearing, the parties generally submit written briefs.[xxix] After consideration, the Grievance Committee issues its report and recommendations to the IMF’s Managing Director, who issues a decision.[xxx]
IMF Administrative Tribunal. The IMF Administrative Tribunal (IMFAT) is the final and highest level of review of administrative decisions.[xxxi]
It functions as an independent body with jurisdiction over “any application  by a member of the staff challenging the legality of an administrative act,” which includes “any individual or regulatory decision taken in the administration of the staff of the Fund.”[xxxii] The IMFAT is further empowered to both review and issue judgments regarding decisions of the Managing Director and Executive Board.[xxxiii] A claim within the Grievance Committee’s jurisdiction must exhaust the Committee’s procedures before being heard by the IMFAT.[xxxiv]
Members of the IMFAT, consisting of the President and four other judges, are typically prominent jurists with experience in international administrative law.[xxxv] They are appointed by the Managing Director, following consultation with the SAC and Executive Board.[xxxvi] Although the IMFAT usually decides cases based on the written record, it may hold oral hearings.[xxxvii]
Ethics Office. In 2000, the IMF recruited its first Ethics Advisor, who “promotes awareness of ethics issues, provides training and education on ethics, and carries out impartial inquiries and investigations concerning alleged violations of the [Fund’s] rules and regulations . . . .”[xxxviii]
The Ethics Advisor thus plays dual roles: counseling staff members on ethics issues and investigating potential violations of Fund policies. The Ethics Office also hosts a confidential Integrity Hotline through which staff and outside parties can report allegations of misconduct.[xxxix]
3. Additional Dispute Resolution Resources
The IMF maintains additional human resources divisions and staff to facilitate dispute prevention and resolution, including management coaches, a Special Advisor on Staff Diversity, and Advisors against Harassment.[xl]
B. THE WORLD BANK
The World Bank is an international development institution that extends financial and technical assistance to developing nations to combat poverty and promote economic growth.[xli] The Bank employs more than 9,000 individuals in over 100 offices worldwide.[xlii] Two-thirds of staff work in the Bank’s headquarters in Washington, DC.[xliii] The Bank’s Conflict Resolution System (CRS) provides both informal and formal means of addressing staff complaints.[xliv]
1. Informal Procedure
The Bank’s informal process seeks to resolve conflicts through non-adversarial means, including ombuds services, mediation, and peer assistance and review.[xlv]
Ombuds Services. The Ombuds Services operate independently of the Bank’s formal structure, and offer impartial and confidential assistance to staff with employment-related concerns.[xlvi]
The Ombudsman does not issue decisions, create policy, or conduct investigations. However, the Ombudsman may provide recommendations, and with staff’s consent, may speak with Bank staff at any level to assist dispute resolution.[xlvii] The Ombudsman may also reach out to management regarding systemic issues facing the organization.[xlviii]
Respectful Workplace Advisors (RWA). RWAs are volunteer peers who offer confidential assistance to staff experiencing employment-related conflicts and concerns.[xlix]
RWAs do not formally participate in dispute resolution, but rather, provide advice to empower fellow employees to resolve problems or engage the Bank’s other conflict resolution services.[l] The Ombuds Services Office supervises the RWA program.[li]
Office of Mediation Services. The Office of Mediation Services (MEF)[lii]
provides mediation, group facilitation, and training services.[liii] Mediation assists parties in communicating their concerns with the ultimate goal of resolving conflicts through voluntary agreement.[liv] When mediation is successful, the parties’ agreement becomes the basis of a Memorandum of Understanding that binds the parties, but does not declare either party at fault.[lv] To invite participation, such services are both confidential and non-adversarial.[lvi]
In addition, MEF provides group facilitation, “an informal, confidential process in which an impartial third party, a facilitator, can improve the quality of communication, problem-solving and decision-making processes in groups.”[lvii] The facilitator first meets with a group about the assistance desired and then provides a proposal detailing the process ahead.[lviii] If the proposal is accepted, the facilitator will assist in subsequent meetings and discussions.[lix]
Peer Review Services. Peer Review Services (PRS) invites employees to seek review of an employment-related matter before an impartial panel of their peers.[lx]
Peer Review Members, who are volunteer staff, determine whether a Bank decision accords with relevant organizational rules and conditions of employment.[lxi] Peer Review Members serve in panels of three, and include both managers and non-managers. “Where feasible, the Peer Review Secretariat will designate to serve on the panel at least one Peer Review Member who is either at the same grade level or shares similar work experience [as the grievant] . . . [and] at least one Peer Review Member from the same Bank Group institution . . . .”[lxii]
Following a request for PRS review, management will typically issue a response.[lxiii] The Panel will then review the parties’ submissions and may hold a hearing, if requested.[lxiv] The Panel submits its findings to the Vice President of the manager responding in the case.[lxv] The Vice President, after consulting with the Vice President of Human Resources (HRSVP), will determine any relief to be provided.[lxvi]
Office of Ethics and Business Conduct (EBC). The Office of Ethics and Business Conduct (EBC) informs staff about and oversees compliance with ethical obligations set forth in the Bank’s Code of Professional Ethics, among other sources.[lxvii]
2. Formal Procedure
Administrative Tribunal (WBAT). Generally, the WBAT consider cases only after staff have sought assistance through available dispute resolution remedies, although for disciplinary and termination cases, staff may proceed directly to the WBAT.[lxx]
An employee submits a case to the WBAT through an application to the Tribunal’s Executive Secretary.[lxxiii] The Executive Secretary then forwards the application to the Bank, inviting its written response.[lxxiv] An employee may reply to the written answer received by the Executive Secretary, and the Bank may conclude with a rejoinder.[lxxv] The WBAT decides most cases on this written record, although it can hold oral proceedings on its own accord or at a party’s request.[lxxvi]
3. Additional Associated Services
The World Bank offers additional resources to assist staff and managers, including a Personal and Work Stress Counseling Unit,[lxxvii] an Office of Diversity Programs,[lxxviii] and a Staff Association that maintains a full-time attorney who represents staff in their disputes.[lxxix]
C. UNITED NATIONS
The United Nations (UN) is an international organization that fosters international cooperation as a means of preventing war and advancing economic and social development among its 193 member states.[lxxx]
The UN employs nearly 44,000 employees in offices around the world.[lxxxi] In addition, the UN works through 15 specialized agencies and maintains cooperative relationships with several international institutions.[lxxxii] Some of the UN’s specialized agencies, most notably the ILO, maintain their own dispute resolution systems.
In 2006, the UN Secretary-General requested that a panel of independent experts review and offer recommendations for redesigning the UN’s longstanding administrative justice system.[lxxxiii] In its report to the UN General Assembly, the Panel stated that the UN system of justice “is neither professional nor independent [and] . . . is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process . . . .”[lxxxiv] Embracing the Panel’s recommendations, the UN General Assembly established a new system of justice.[lxxxv] The following sections address the redesigned structure.
1. Informal Procedure
The Office of the Ombudsman, comprised of the Mediation Division and the Ombudsman, serves as the UN’s informal system of justice. The office acts as an independent, neutral, and confidential resource for employees seeking resolution of workplace matters, including conflicts with fellow staff.[lxxxvi] The office received 1,764 cases in 2010—a 35 percent increase from the 1,287 cases it received the year before.[lxxxvii]
Ombudsman. The Ombudsman division includes the UN ombudsmen, UN fund and programme ombudsmen, and regional ombudsmen located in seven regional branch offices.[lxxxviii]
Upon receipt of a complaint from an employee, the Office will assign an Ombudsman to the matter, typically within five working days.[lxxxix] The Ombudsman will meet with the employee to learn more about the employee’s concerns and will assist in evaluating available means for addressing the situation.[xc] While the Ombudsman cannot personally issue formal decisions, he or she may help an employee to access more formal avenues of conflict resolution.[xci]
Mediation Division. The Mediation Division assists parties in arriving at their own solutions to workplace problems.[xcii]
The Division offers services through staff mediators and a network of on-call mediators at headquarters and the regional branches.[xciii] Cases arrive at the Mediation Division either at an employee’s request or by referral from another UN unit.[xciv]
2. Formal Procedure
The formal procedures at the UN underwent more significant reform than the informal procedures, largely to address egregious failures in rendering binding decisions, timely addressing cases, and maintaining neutrality and independence.
Internal Justice Council. Established as part of the UN’s redesigned administrative justice model, the Internal Justice Council advances the integrity of the institution’s internal judicial bodies and system of justice generally.[xcv]
Specifically, the Council reviews candidates for judicial appointments to internal UN tribunals, drafts a judicial code of conduct, and evaluates progress in implementing the redesigned justice system.[xcvi] The Council consists of five members, including two representatives from staff and management, and two independent jurists, one proposed by staff and the other by management.[xcvii] These four members select by consensus an additional jurist to serve as Council Chair.[xcviii]
UN Dispute Tribunal (UNDT). The UNDT is the first judicial level of the UN’s formal dispute resolution system.[xcix] The UNDT replaces the former Joint Appeals Boards (JABs) and Joint Disciplinary Committees (JDCs), which had functioned through volunteer staff, experienced immense delays, and demonstrated insufficient knowledge of staff rules.[c] At the urging of the Redesign Panel, the Secretary-General thus recommended “replacing the advisory bodies with a professional and decentralized first-instance tribunal that issues bindings decisions that either party can appeal to an appeals tribunal.”[ci] The UNDT presently operates through three full-time judges, located in New York, Geneva, and Nairobi, along with two part-time judges in other offices.[cii]
UN Appeals Tribunal (UNAT). The UNAT is the court to which appeals from the UNDT are taken.[ciii]
The UNAT is composed of seven members, who sit primarily in panels of three in New York.[civ] From July 2009 through December 2011, the UNAT reviewed 284 cases and delivered 190 decisions.[cv] In the period from July through December 2011, the Tribunal considered 39 cases from staff members appealing UNDT decisions.[cvi] Of these, “34 were rejected, two were entertained in full or in part, and three cases were remanded to the UNDT.”[cvii]
Office of Staff Legal Assistance. Under the prior system of justice, the UN provided pro bono legal assistance to staff through the Panel of Counsel.[cviii]
While staff members had the right to select outside counsel, they could also seek assistance from the Panel, which included volunteer members.[cix] Importantly, however, the “overwhelming majority of individuals serving as counsel . . . lack[ed] legal qualifications.”[cx] The UN replaced the Panel with OSLA, a professionalized office that provides free counsel through legal staff at UN headquarters and individual legal officers in other offices.[cxi] OSLA also enlists the support of pro bono attorneys and members of the UN community with legal backgrounds.[cxii] The Office evaluates the merits of individual claims and may decline representation where, for example, it determines that an “application has little chance of success.”[cxiii]
D. INTERNATIONAL LABOUR ORGANIZATION
The International Labour Organization (ILO) promotes rights at work and promulgates international labor standards as a specialized agency of the UN.[cxiv] The organization operates through a distinct collaborative model that engages governments, workers, and employers in the development of international labor policy.[cxv] The International Labour Office, the ILO’s main operating center, employs approximately 2,700 employees (called “officials”) worldwide.[cxvi]
Workplace disputes can be resolved informally by using the organization’s Ethics Officer or Mediator, or formally, by recourse to the ILO Administrative Tribunal.
1. Informal Procedure
Ethics Officer. The Ethics Officer provides information and training about relevant ethics rules, counsels staff and management regarding ethics inquiries, and conducts initial reviews of retaliation complaints.[cxvii]
Consultation of the Ethics Officer about matters of retaliation does not foreclose staff’s use of the ILO’s other dispute resolution procedures.[cxviii] The Ethics Officer’s review may, however, result in submission of the case to the Human Resources Department, which will determine whether to commence related disciplinary proceedings.[cxix] Between May 2007 and December 2009, the Ethics Officer received only one complaint of retaliation.[cxx]
The Ethics Officer position was previously performed by the Deputy Legal Adviser.[cxxi] Acknowledging the potential conflicts of interest that might arise between these positions, the former Ethics Officer agreed that if consulted by staff in his capacity as Ethics Officer, he would not later handle the same matter in the Office of the Legal Adviser.[cxxii] The current Ethics Officer also serves in another position at the ILO, although not in the Office of the Legal Adviser.[cxxiii]
Office of the Mediator. The Office of the Mediator provides facilitation, coaching, and mediation services in an independent and informal environment.[cxxiv]
Mediators safeguard the confidentiality of all parties, materials, and sessions.[cxxv] The Office also offers the services of trained peer facilitators, including more than 60 volunteer facilitators at headquarters and in regional offices.[cxxvi]
2. Formal Procedure
ILO Administrative Tribunal. The ILO Administrative Tribunal (ILOAT) serves as the ILO’s formal administrative body for review of employment-related claims. Interestingly, other international organizations may consent to ILOAT’s jurisdiction over cases arising within their institutions.[cxxvii]
This broad jurisdiction derives in part from the history of the League of Nations. The League, which was founded in 1927, maintained an Administrative Tribunal that also serviced the ILO, which was created eight years earlier. In 1946, the League ceased operations and conveyed its functions and property to its successor, the United Nations.[cxxviii] The ILO—the first of the UN’s specialized agencies and a natural fit, given its oversight of labor rights—assumed management of the Administrative Tribunal.[cxxix] Three years later, the ILO modified the Tribunal’s founding statute to enable, through formal declarations, its jurisdiction over matters arising in other international organizations.[cxxx]
The Tribunal decides nearly 100 cases annually, convening twice yearly in Geneva for sessions of three weeks each.[cxxxi] Decisions are rendered by seven judges, who sit in panels of three and rule by a majority vote.[cxxxii] The Tribunal’s rulings are final.[cxxxiii]
If the ILOAT decides that a complaint should be fully examined, it will request written pleadings from the parties as well as any relevant supporting evidence and transcripts from earlier proceedings.[cxxxiv] The ILOAT may also, by its own initiative or at a party’s request, order additional investigation, “including the appearance of the parties before it, the hearing of expert and other witnesses, the consultation of any competent international authority, and expert inquiry.”[cxxxv] The ILOAT determines on a case-by-case basis whether oral proceedings are warranted and whether the public may attend any such hearings.[cxxxvi] Judgments of the Tribunal must articulate the basis for the decision and be submitted to both the ILO’s Director-General and the staff member.[cxxxvii] For cases that originate outside the ILO, judgments are also delivered to the Director-General of the defendant organization.[cxxxviii]
IV. Best Practices for Internal Dispute Resolution Procedures
An effective dispute resolution program must be compatible with the institutional environment in which it operates. Thus, no single internal dispute resolution template would satisfy the needs of every international organization. This section will highlight issues faced by the profiled organizations and evaluate their effectiveness in responding to such demands.
A. The Structure of Dispute Resolution System
The structure of dispute resolution systems, though ever evolving, must respond to the concerns of both participants and institutions. For employees, dispute resolution procedures present a host of emotional and financial costs and benefits. The availability of accessible and confidential entry points to a system frequently determines whether an employee will engage or avoid dispute resolution procedures. Employees may find complaints unresolved at early stages to be burdensome in terms of time, cost, exposure, and contentiousness if pursued at later stages. Organizations, for their part, may conceive of procedures as a series of sequential screens for resolving complaints at the earliest stages and defending against unjustified complaints at latter stages. Management seeks both fair and efficient dispute resolution, and compliance with due process and human rights obligations under international law. This section will examine dispute resolution systems from both perspectives.
1. Informal v. Formal Procedures
While international organizations must provide formal administrative procedures for resolving disputes or risk intrusion by domestic courts, informal procedures are not strictly required, and thus, have evolved organically to reflect the composition and purpose of each organization. Although seemingly formalistic, the balance of informal and formal procedures bears real and far-reaching consequences for international organizations and their staffs.
Informal procedures offer accessible, private, and non-adversarial avenues for addressing staff concerns–—aspects of critical importance to staff who may be reluctant to confront individuals in positions of authority.[cxxxix] Such procedures also allow organizations to address and ideally resolve disputes before staff-management relations erode to a perhaps irreparable degree. Resolution of disputes soon after they arise increases not only workplace harmony, but also efficiency, eliminating both the time and cost demanded by more formal procedures.[cxl]
Absent informal procedures, formal mechanisms may appear too distant, intimidating, or intrusive to enjoy participation by employees. At the same time, absent more formal and professional mechanisms, such as administrative tribunals, staff and organizations alike may suffer incomplete or biased reviews of disputes, or inconsistent application of policies and procedures among similar cases. Although many dispute resolution mechanisms defy precise categorization as either formal or informal, organizations must nevertheless strive to create systems that through an array of such procedures prioritize the fair treatment and consideration of employees, and the objective and consistent review of management decisions.[cxli]
While all of the international organizations profiled have formal administrative tribunals, their internal dispute resolution procedures differ greatly at the lower level. The UN has the most formal structure below the tribunal, consisting of a formal judicial body, the UNDT. Interestingly, despite the availability of a multi-level series of formal courts, informal mechanisms, such as the Ombudsman and Mediation Services, enjoy far greater usage.
The World Bank has the least formal procedures below the administrative tribunal level. Its Peer Review Services, in addition to ombuds and mediation processes, appear to be extremely effective. Of major concern, however, the World Bank’s informal process fails to produce an administrative record. As such, the WBAT effectively must consider each case de novo.[cxlii] This reality poses significant costs for both grievants and the organization, as proceedings may prove unnecessarily redundant or time-consuming. The potential loss of evidence similarly challenges the integrity of tribunal findings.[cxliii] The World Bank’s emphasis on peer review at earlier stages prioritizes non-adversarial dispute resolution; however, tension mounts between the accessibility of review by staff with knowledge of the World Bank and the need for consistent and accurate application of policies by professionals.
The IMF system constitutes a middle ground of formality. The Fund has a central Grievance Committee—a process that some have criticized as being too formal and ill-suited to provide informal dispute resolution.[cxliv] The Fund’s new mediation program seeks to address this concern. The IMF maintains an Ethics Advisor, yet the dual advisory and prosecutorial roles of this position act as a strong disincentive to use of the Ethics Office by employees, who may well hesitate to solicit advice if formal investigation and disciplinary actions could result.[cxlv]
2. The Three-Tiered Process
Although the existence and administration of informal procedures vary by organization, commonalities exist in the structure of more formal mechanisms. Indeed, commentators note a trend toward a three-tiered structure at international organizations, including: administrative review; an internal review stage by a staff-management committee; and judicial review.[cxlvi]
a. Administrative Review
International human resources consultant Jack Kennedy[cxlvii] highlights several virtues of administrative review, including the ability to “resolve a substantial portion of employment disputes, thereby avoiding costly, time-consuming recourse to later appeals processes, including proceedings in the organization’s Administrative Tribunal.”[cxlviii]
In the IMF, for example, administrative review offers the manager closest to the challenged decision another look and also provides for an “independent review” by the human resources department.[cxlix] Diverse institutional interests are brought to bear on the decision, including the need for consistency in applying rules.[cl]
Administrative Review also enables an organization to “prepare . . . for subsequent consideration by appeals committees and/or Administrative Tribunals.”[cli] Thus, a reviewing human resource official may collect information through documents, interviews, and other means to discover and erect a case for litigation. This investigatory product is, however, unilateral: it is neither conducted nor shared with the staff member.
This use of Administrative Review may create a perception of unfairness as participants become aware of the one-sided discovery afforded by the process. Settlements that occur during Administrative Review may well result from this imbalance of information. Kennedy raises similar concerns about whether the “degree of one-sidedness … can be reduced or controlled to the extent needed for reviews to be perceived and accepted as credible, objective and independent.”[clii] He recommends integrated mediation programs as a partial response.[cliii]
b. Peer Review
Peer Review “stands, just like administrative review, at the crossroads of informal and formal procedures.”[cliv] Organizations structure peer review differently, with notable distinctions in the membership of reviewing committees. At the IMF, the three-person Grievance Committee is composed of a representative of management, a representative from the SAC, and an outside professional arbitrator. At the World Bank, the Peer Review Committee is composed of three staff members, and attorneys may not be directly involved. Both structures offer advantages in terms of expertise, independence, and familiarity with institutional culture and policies.
Peer review systems gain credibility from a perception of fairness and independence, and correspondingly, lose credibility when an institution disregards their recommendations. In such cases, peer review may be perceived as an arm of human resources department, which can effectively overrule such bodies at will. The IMF offers an instructive case.
Historically, IMF management routinely adopted the recommendations of the Grievance Committee. Then, in a series of cases involving the Committee’s unanimous recommendations that the Fund pay partial attorneys’ fees to the grievants’ attorneys, the Fund rejected the Committee’s recommendations.[clv] Although there was a disagreement regarding interpretation of the Committee’s authority, granted by IMF regulations, to recommend fees in each instance, the rejection of the recommendations undermined the overall respect and credibility of the Committee. If the Fund would not endorse the Committee’s unanimous recommendations on a subsidiary matter, staff might well doubt the Committee’s independence and significance. The IMF example reveals the tenuous nature of peer review: It offers the first real opportunity to have complaints heard by an independent body, but it provides only non-binding recommendations.
c. Judicial Review
All of the profiled organizations maintain administrative tribunals. These tribunals play a critical role, offering employees an opportunity to have their cases heard by experienced and impartial fact finders. The UN’s redesign of its internal justice system underscores the importance of this administrative level and highlights considerations for its effectiveness.[clvi]
The UN Redesign Panel emphasized hearings as a “clear requirement in international standards whenever there are disputed issues of fact” and urged that “[t]o guarantee due process and to facilitate decisions oral hearings should be promoted and accepted.”[clvii] In practice, oral hearings are not always offered or requested.
At the World Bank and IMF, tribunals are permitted to hold oral hearings, but seldom, if ever, do.[clviii] Consequently, cases at many international organizations are decided in private on written records. In cases involving the interpretation of organizational rules or law, written submissions likely will prove sufficient.[clix] This practice may, however, challenge justice in more fact-intensive cases, particularly at organizations such as the World Bank, where administrative records are not maintained during informal procedures. Restrictions on the role of counsel in preparing submissions at the World Bank’s peer review level compound the potential loss of evidence. Increased availability of oral hearings promises greater access to information for fact finders and access to decision making for employees.
The effectiveness of administrative tribunals rests not only on their accessibility, but also on their consistency in rendering decisions in similar cases. Predictable and reasoned results enhance the integrity of organizational procedures as well as employee confidence. Acknowledging the importance of consistency, many tribunals look both inward to reconcile their decisions with those in prior cases, and outward to align their findings with international law and the decisions of other tribunals. Indeed, “there is hardly any judgment of international tribunals that does not make reference to jurisprudence of other tribunals. It has become current practice.”[clx] The unique posture of tribunals as quasi-sovereign entities encourages these bodies to cite decisions by other international tribunals to preserve neutrality across member countries and avoid preference of any one domestic legal system. The influence of tribunal decisions extends beyond substantive matters to inform the review and redesign of internal dispute resolution procedures at various organizations.[clxi] As a result, tribunals play an active role in shaping due process rights at the highest levels of administrative review and in the steps below.
B. Staff Representation in Dispute Resolution Mechanisms
A robust internal dispute resolution system imposes substantial costs on both international organizations and their employees. For employees, these costs are borne in the form of time, energy, and financial resources expended in pursuing a claim. This section will explore unique considerations posed by international civil service and analyze resources available to staff to assist in meeting their needs.
1. Needs and Demands of International Civil Service
International civil servants trade allegiance to their countries for service to a collective of nations in support of ambitious missions—from promoting labor rights to preventing war. An international code of conduct highlights the seriousness of this undertaking: such employment requires strict independence from and impartiality in the face of national interests.[clxii] Unprotected by the employment laws and safety net systems of their countries, these employees rely upon their organizations for compensation and job security, as well as a range of benefits.
The working conditions of many international civil servants echo the gravity of their global responsibility. Field employees of the UN, for example, face harsh conditions, frequently encumbered by danger and despair.[clxiii] Isolation from family, culture, and colleagues increases stress. Headquarters staff is not immune from pressure, frequently working at a distance from their personal support networks and countries, and “often at the center of world attention, in the world’s largest and most visible fishbowl.”[clxiv] Devotion to a shared mission and an established hierarchy gives rise to a stoic culture in some organizations, leading field employees in particular to withhold requests for assistance, lest their fitness for service or allegiance be questioned.[clxv]
2. Staff Associations and Collective Bargaining
Employee organizations assist staff in navigating an organization’s internal dispute resolution procedures. Such organizations generally owe their existence to staff rules and regulations referencing the “freedom of association,” and take the form of staff associations, committees, or unions. In several organizations, including the World Bank and IMF, the staff associations do not formally represent employees as a union would, but rather, assist employees in identifying relevant resources and avenues for filing claims. While these associations may also serve an active role in expressing the views of staff before and be consulted by management, they do not possess collective bargaining power, that is, the authority to negotiate agreements with management regulating work relations, conditions, and other terms of employment.[clxvi]
In contrast, other organizations, including the UN and ILO, are served by unions that enjoy more traditional collective bargaining relationships with organizational managers, negotiating binding agreements on a host of employment policies and procedures. Unsurprising, given its mandate to promote workers’ rights, the ILO hosts a staff-management relationship characterized by collective agreements, including an agreement related to conflict resolution.[clxvii]
At the UN, the right to collective bargaining is frequently supported in practice, but is not explicitly recognized.[clxviii] While staff and management engage in negotiation on various topics, bargaining on other matters is circumscribed by limits from Member States on management’s authority.[clxix] Collective bargaining does not exist, for example, in the realm of compensation.[clxx] In light of this distinction and to prevent confusion over whether the right exists, even within limits, a recent report by the UN’s Joint Inspection Unit recommended the approval of “a Staff Regulation explicitly recognizing the right to collective bargaining . . . .”[clxxi]
Collective bargaining assumes an important role in dispute resolution procedures. First, it provides a substantial opportunity to gain employee “buy-in,” as such systems will better reflect employee needs and input. Collective bargaining also enables administrative consistency, particularly when staff-management agreements directly address subjects of grievances. Negotiation further ensures that procedures will be revisited and will evolve in response to experience and feedback. Further, the collective bargaining representative usually represents employees or funds representation, thus alleviating a primary inhibition to bringing claims.
Unfortunately, the role of collective bargaining appears undeveloped or inconsistent at many international organizations. Staff-management relations governed by consultation alone too often lead to a perception that staff input is merely advisory and that the most important aspects of employment rest unilaterally with management. Perceptions such as these are underscored by a unique dichotomy at some institutions: Member States may share membership in the ILO, and thus, be bound by significant labor rights protocols,[clxxii] and yet fail to insist on all such rights for international employees. Similarly, international financial institutions, such as the IMF and World Bank, may urge loan recipients and financed projects to respect labor rights, including the right to collective bargaining, that are not always afforded to the organizations’ staff.[clxxiii] These policies send a mixed message to staff, who may monitor external compliance with labor standards that do not appear an internal priority.
The restriction or absence of collective bargaining over remuneration benefits and work rules may be attributed to an interest in administrative efficiency—a significant consideration in colossal organizations such as the UN. Additionally, international organizations may view their missions as so unique and vital that they may be reluctant to diminish this role through collective bargaining. The organizations’ creation and support by nearly 200 countries means that collective bargaining might cede to staff organizations prerogatives of member countries.
While limits on collective bargaining may be appropriate, they must be balanced against the significant benefits of bargaining, including constructive dialogue between organizations and employees, prevention of conflicts, and enhanced trust between employees and employers.[clxxiv]
3. Representation by Counsel
Legal counsel play a fluid role in many internal dispute resolution systems. Although organizations may employ legal staff to oversee organizational procedures and defend against employee disputes, the appearance of counsel may be discouraged or banned during some dispute resolution procedures, such as peer review, to avoid lending an adversarial air to such proceedings.[clxxv] Limitations on the participation of counsel, while intended to promote conflict resolution, may frustrate the ability of employees to prepare and prove their claims. In any case, where organizations are represented by counsel, fairness dictates that employees should likewise enjoy access to counsel to remove any procedural advantage from imbalanced representation.[clxxvi] The contours of such access vary significantly among organizations.
Although the IMF Staff Association Committee assists employees, it does not offer full legal assistance, and employees must hire their own attorneys. Grievants face IMF staff attorneys with expertise in the operations, legal system, and procedures of the IMF. This imbalance might be addressed through one of two changes: by awarding attorneys’ fees more generally to grievants who bring claims, or by banning participation of attorneys at the Grievance Committee level, as in World Bank’s Peer Review process.
The IMF’s payment of litigants’ attorneys would pose a conflict of interest, as the attorneys’ acceptance of IMF funds might imbue their representation with a desire to satisfy management and ensure their continued employment.[clxxvii] Additionally, the IMF is too small to accrue sufficient funds through its Staff Association Committee to finance grievants’ attorneys. A similar situation exists at the World Bank, where the “Bank Group agreed to fund the hiring of an attorney who will work in the Staff Association to provide legal assistance to staff members contemplating filing or [having] filed a Request for Review with the PRS.”[clxxviii]
If attorneys are barred from the Grievance Committee stage, the central benefit of careful elucidation and application of policies in an adversarial setting could be lost, leaving this function to the IMFAT, which is ill-equipped for the development of a fulsome evidentiary record. At the IMF and World Bank, employees can choose to have another employee represent them. However, as this representative usually works for the institution, conflicts of interest remain. Further, as the IMF may still be represented by legal counsel, procedural imbalance likewise endures.
The UN Office of Staff Legal Assistance (OSLA) maintains significant funds with which to assist employees, but confronts the same potential conflicts of interest as the World Bank. In addition to UN funds, OSLA has established a Trust Fund to which individuals can donate.[clxxix] OSLA provides services to staff members free of charge. Importantly, the office is not obligated to take all cases, and it decides to do so after evaluating individual claims. Indeed, between July 2010 and June 2011, OSLA represented staff in only 31 percent of cases before the UNDT.[clxxx]
C. Barriers to the Use of Dispute Resolution Procedures
International organizations offer a host of procedures for resolving conflicts among their staffs. Robust dispute resolution demands that such procedures move beyond written policy to enjoy actual use by employees. This section will discuss personal, cultural, and organizational considerations that affect use of dispute resolution procedures.
1. Reluctance of Employees to Use the System
Reluctance to engage with dispute resolution procedures plays an undeniable role in many international organizations. While international civil servants agree to work on behalf of their organizations’ missions and independently of their countries, they are nevertheless individuals with unique backgrounds that influence how they communicate, and thus, interpret conflict. Cultural considerations may influence an employee’s decision to challenge authority by filing a claim—an action that in some Eastern cultures, for example, may be correlated with shame and failure.[clxxxi] Further, many employees fear that if they raise complaints they will hurt their career prospects or garner a bad reputation. For international civil servants, personal and professional dependence on their employer serves as a powerful disincentive to pursuing grievances. This is especially true of staff living outside of their home countries with family accompanying them, given that their visa status may be dependent on their employment at the international organization against which they are filing a complaint.[clxxxii]
Reluctance to bring claims challenges the hearing of legitimate grievances, and in turn, institutional fairness. Absent disputes and challenges, an institution loses a source of valuable criticism that enables it to change and improve. The loss of employee trust and belief in institutional fairness undermines morale, hindering organizational effectiveness and endangering allegiance to and service of an organization’s mission.
Institutions must make affirmative efforts to reassure staff members regarding use of internal dispute procedures and to educate human resources staff about cultural norms that may affect participation in such systems. Critically, the institutional imperative of applying rules equally to employees means that “cultures and nationalities are not formally recognized in delivery of administrative decisions or the application of conflict management systems.”[clxxxiii] Recognizing the limited capacity of dispute resolution processes to address cultural differences, organizations should look to substantive policies to reflect the diverse needs of staff—from policies concerning leave and travel to protective measures against harassment and retaliation.
Through anti-retaliation policies, organizations can reduce employee anxiety and provide a measure of security for those seeking to use dispute resolution systems. Such provisions could include a sanction of discipline, including termination for supervisors who engage in retaliation, or disincentives, such as triple damages against the institution, or the supervisor and manager individually. Importantly, anti-retaliation policies may exist solely on paper. Protection of employees requires both enactment and enforcement of anti-retaliation policies.
Informal processes of dispute resolution, such as mediation or ombudsmen, may provide additional employee protection in the form of greater privacy. Without published decisions and other formal requirements, an employee might have fewer concerns about other employees, particularly supervisors and managers, learning of a complaint. In reality, this protection comes with significant tradeoffs, including the lack of record-keeping to establish a supervisor or involvement in the dispute resolution process. Notably, even with strong attempts to keep disputes confidential, no organization can guarantee that the facts or circumstances of a dispute will stay private, and so, this deterrent to participation remains
2. Lack of Faith in the System
Effective internal dispute resolution systems rely upon the trust of staff in the systems’ ability to protect them and to impartially investigate claims of wrongdoing. Several incidents suggest that such trust may be abused or understandably lacking.
In May 2011, the Washington Post reported on the widespread problem of sexual harassment at the IMF, after media reports about former IMF Managing Director Dominique Strauss-Kahn’s arrest on sexual assault charges cited a 2008 allegation of an improper sexual relationship with a female IMF employee.[clxxxiv] The article reported that “[i]n 2007, officials at the fund declined to investigate a complaint by an administrative assistant who had slept with her supervisor, and who charged that he had given her poor performance reviews to pressure her to continue the relationship. Officials told the woman that the supervisor planned to retire soon, and therefore there was no point in investigating the charges . . . .”[clxxxv] Another employee alleged that, in 2009, she reported a senior manager for sending her explicit emails, yet the Fund did nothing to investigate the claim.[clxxxvi] The IMF adopted a new code of conduct in May 2011, and Ethics Advisor Virginia R. Canter noted that the Fund had taken a “series of strong steps to protect employees” since she joined in 2010 and that her office would investigate all complaints.[clxxxvii]
Concerns over the treatment of sexual harassment claims also arose at the UN. According to a May 2009 Wall Street Journal article,[clxxxviii] “[s]everal women who complained of harassment say their employment contracts weren’t renewed, and the men they accused retired or resigned, putting them out of reach of the [UN] justice system.”[clxxxix] The internal dispute resolution practices seemed arbitrary and “mired in bureaucracy,” with “accusers having no access to investigative reports.”[cxc] For example, one employee reported that her complaint of sexual harassment over several years by her supervisor was investigated and cleared by her boss’s colleagues.[cxci]
The new UN administrative system benefits from centralization and allows for discovery and analysis of organization-wide problems. Despite such changes, the UN has been highly criticized, most notably by a former senior official, for its flawed internal investigations and lacking accountability.[cxcii] In July 2010, Inga-Britt Ahlenius stepped down as Undersecretary General of the Office of Internal Oversight Services, accusing Secretary General Ban Ki-Moon of systematically “undercut[ting] the independence of her office, initially by trying to set up a competing investigations unit under his control and then by thwarting her efforts to hire her own staff.”[cxciii] The accusations afford a critical lesson: a formal system of internal dispute resolution has limited effectiveness if staff members do not believe their claims will be fairly investigated.
D. Accountability and the Role of Inspectors General
The creation of an Inspector General (IG) is one possible, significant addition to the internal dispute resolution procedures at international organizations. An independent IG could alleviate a number of problems with the current systems, most notably, the lack of organizational transparency and feedback. In addition, an IG could ensure that the decision makers and lower-level procedures employ the proper standards for evaluating cases. The existence of an IG might instill confidence in employees to raise complaints and curb fear of retaliation.
Feedback related to internal dispute resolution procedures offers valuable information to organizations that enhances both their effectiveness and responsiveness. This organizational learning process is hindered in many organizations by the practice of providing the result or disposition of employee disputes only to management in the grievants’ department, if even there.
Critically, management may have a propensity to consider validated complaints anomalies and to ignore their clear implications. Indeed, units and individuals subject to criticism are too often ignored, and managers found to have made errors or worse are not held accountable. The “circle the wagons” approach of management, where properly criticized, allows problems to fester and reoccur. An Inspector General could offer an effective feedback mechanism by providing periodic reports of cases and decisions to management throughout the organization.[cxciv] An IG could also alert management to the need to amend specific policies.
Currently, many of the dispute resolution entities submit reports to their institutions. Some of these reports are disseminated to staff. However, there is generally no systematic effort to modify policies in light of institutional experience. Routine and comprehensive reviews of internal dispute resolution systems by independent third-parties, coupled with follow up by top management, will enable organizations to responsibly prevent problems. While many organizations currently undertake third-party reviews periodically or in response to criticism, a more standardized approach could aid in cultivating a culture of accountability and trust.
2. Lack of Transparency
Lack of transparency is a major source of employee frustration with current internal dispute resolution procedures at international organizations, although some organizations make more information public than others. Unlike domestic courts, in which an employee can read published opinions or see the end result of similarly situated plaintiffs, employees at international organizations generally have little way of knowing if they have been treated differently than previous grievants. Only the administrative tribunals uniformly release their decisions, including to the general public.
In the United States, government agencies are subject to the Freedom of Information Act, and unions routinely make information available to their members. Further, section 8(d) of the Labor Management Relations Act[cxcv] and section 7114(b)(4) of the Federal Service Labor-Management Relations Act[cxcvi] guarantee rights to information relevant to pursuing grievances. Employees at international organizations are at a distinct disadvantage.
The international organizations discussed in this article handle the issue of transparency and accountability differently. The UN publishes comprehensive statistics about employee disputes and problems at both the administrative tribunal and lower levels. This information includes not only information about the total number of cases filed at the UNDT, but also information about the nature and outcome of such cases. These detailed accounts serve an important accountability function, allowing employees and the public to review trends within the UNDT. The UN also provides a detailed report of the Ombudsman and Mediation Services.
In contrast, the IMF does not publish any information about its complaints and decisions below the Administrative Tribunal level, and thus, lacks transparency. Naturally, privacy considerations play a part. Publication of a decision may discourage, rather than encourage, the filing of complaints. Even with redaction of names, within an institution, identities may be recognized. Retaliation may result and be difficult to prove, given the subtlety of such cases. The ILO Mediator publishes a publicly available report. While the World Bank does not publish statistics on its website, its CRS compiles yearly information into a comprehensive report.
Each organization produces its own unique problem areas. The more these issues are identified and broken down by type, unit, staff level, and other factors, the greater the opportunity for employees and upper management to spot trends and craft remedies.
The evolution of internal dispute resolution programs proceeds organically, with many organizations now striving to meet increasing demand and need for speedier, lower cost, and more informal approaches to dispute resolution. Today, staff not only use these procedures, but may also collaborate in system design.
Critically, however, fear, mistrust, and lack of organizational accountability inhibit use of dispute resolution systems by employees experiencing workplace conflicts. Financial realities and limits on the rights of staff associations and legal counsel erect additional barriers for employees seeking redress and a voice in workplace relations. Through ongoing reviews and reforms, international organizations have taken steps to broaden access to and confidence in internal dispute resolution procedures. Nevertheless, many organizations regretfully fail to fully embrace mechanisms for revealing flaws in operations, human resources, and management.
While valid criticisms endure, the basic frameworks of the profiled systems appear sound. Through their commitment to announcing clear and consistent staff rules and terms of employment, accompanied by comprehensive systems for addressing violations, international organizations are advancing due process and fair treatment of employees. “These international organizations, of course, cannot provide a match for the laws under which [many of] their employees might have had protection in their home countries.’’[cxcvii] Nevertheless, they should continually strive to create remedies that nourish within their organizations the mutual trust, respect, and harmony that they envision and advance on behalf of the international community. Strong accountability and feedback mechanisms can further ensure that international organizations evolve in response to the wealth of information that internal dispute resolution systems reveal about human resources management and the organizations more generally.
The organizations discussed represent a rich body of experiences and processes. Greater information and analysis about each system, married with an exchange of ideas among the systems, will enable greater progress toward the goals of the dispute resolution process, and ultimately, the missions of the international organizations themselves.
* Joshua M. Javits is a private labor-management arbitrator and mediator. He sits on more than 40 neutral arbitration panels and has arbitrated more than 2,000 cases. Javits served from 2007 to 2011 as Chairman of the Grievance Committee of the International Monetary Fund. He was Chairman and a Member of the National Mediation Board, from 1988 to 1993. He has served on two Presidential Emergency Boards. He has represented labor unions and management (at different times) in the past, and began his career as a trial attorney with the National Labor Relations Board. Javits has taught various trainings and courses in alternate dispute resolution and labor law, including as an Adjunct Professor at Georgetown University Law Center.
[i] The World Bank Group is comprised of five agencies, including the International Bank for Reconstruction and Development (IBRD); the International Development Association (IDA); the International Finance Corporation (IFC); the Multilateral Investment Guarantee Agency (MIGA); and the International Centre for Settlement of Investment Disputes (ICSID).
[ii] For example, the United States enacted the International Organizations Immunities Act of 1945 (the “Act”), 22 U.S.C. §§ 288-288l (2010).
[iii] Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15, at art. I, sec. 1 [hereinafter “General Convention”].
[iv] Id. at art. II, sec. 2. The Convention requires, however, that the UN provide “appropriate modes of settlement” for disputes arising out of its contracts or disputes of a private legal character. Id.
[v] See ILO, ILO Constitution, art. 40; IMF, Articles of Agreement, art. IX, sec. 3.; Int’l Bank of Reconstruction and Dev., Articles of Agreement, art. VII, sec. 3; Int’l Dev. Ass’n, Articles of Agreement, art. VIII, sec. 3. See also Convention on the Privileges and Immunities of the Specialized Agencies, art. III, sec. 4, Nov. 21, 1947, 33 U.N.T.S. 261 [hereinafter “Special Convention”]. The United States is not a party to the Special Convention; immunity of the ILO, IMF, and World Bank under U.S. law derives instead from the International Organizations Immunities Act, 22 U.S.C. § 288.
[vi] Special Convention, supra note 5.
[vii] See Int’l Bank of Reconstruction and Dev., Articles of Agreement, art. VII, sec. 3:
Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No action shall, however be brought by members or persons acting for or deriving claims from members. . .
Id. See also Int’l Dev. Ass’n, Articles of Agreement, art. VIII, sec. 3.
[viii] See, e.g., Waite and Kennedy, Application No. 26083/94, Eur. Ct. H.R., 18 February 1999 (1999), ECHR 13; 116 ILR 121, 134, para. 68.
[xii] IMF, Staff of International Civil Servants, http://www.imf.org/external/about/staff.htm.
[xiii] International Monetary Fund [IMF], IMF Ombudsperson’s Terms of Reference (Dec. 2007), http://www.imf.org/external/hrd/ombuds.htm.
[xiv] Id. Disclosure may occur where authorized by an employee or necessary to prevent an “imminent risk of serious harm.” Id.
[xvi] See IMF, Job Posting: Mediator, Washington, DC (June 2012), available at http://blog.lib.umn.edu/gpa/globalnotes/2012/06/international-monetary-fund-me.php.
[xix] IMF, General Administrative Order No. 31, sec. 6 (2008), available at http://www.imf.org/external/hrd/pdf/2011/gao33.pdf (within appended material).
[xx] Id. at secs. 6.06 & 7.02.
[xxi] Id. at sec. 2.01. Although the latter two members and their alternates are appointed by the SAC and management, respectively, they serve on the Grievance Committee as “independents.” Id. at sec. 10.03.
[xxii] Id. Traditionally, this role has been performed by a professional arbitrator.
[xxiii] Id. at sec. 7.08. However, the SAC Office maintains a file with redacted copies of previous recommendations, which are available for review by potential grievants.
[xxiv] IMF, General Administrative Order No. 31 (2008), sec. 5. The Committee lacks jurisdiction, however, over Executive Board actions and matters related to the organization’s retirement plan. Id. at 4.03.
[xxv] Id. at sec. 7.05.1.
[xxvi] IMF, Review of the International Monetary Fund’s Dispute Resolution System: Report of the External Panel (Nov. 2001), at 15, available at http://www.imf.org/external/hrd/dr/112701.pdf. [hereinafter “Report of External Panel”].
[xxvii] IMF, General Administrative Order No. 31 (2008), sec. 7.04.
[xxviii] Id. at sec. 7.05.3.
[xxix] Id. at sec. 7.07.
[xxx] Id. at sec. 8.
[xxxi] Statute of the Admin. Trib. of the IMF, art. XIII.
[xxxii] Id. at art. II.
[xxxiii] Report of External Panel, supra note 26, at 17.
[xxxiv] Statute of the Admin. Trib. of the IMF, art. V. A decision relating to the IMF’s Staff Retirement Plan (SRP) must first be appealed to the SRP Administration Committee before it can be heard by the IMFAT.
[xxxv] Id. at art. VII.
[xxxvii] Id. at art. XII; Report of External Panel, supra note 26, at 17-18.
[xxxix] IMF, Staff Bulletin: New IMF Integrity Hotline Program (Dec. 16, 2008), available at http://www.imf.org/external/hrd/pdf/2011/gao33.pdf (within appended materials).
[xl] See Report of External Panel, supra note 26, at 20-21.
[lii] The acronym “MEF” derives from an internal World Bank code.
[lvii] Id. (follow “Group Facilitation” tab).
[lxvii] World Bank, Office of Ethics and Business Conduct, http://go.worldbank.org/L9TZ7416A0 (last visited Oct. 18, 2012); World Bank Group, Code of Professional Ethics (1999), available at http://siteresources.worldbank.org/INTETHICS/Resources/CodeinEnglish.pdf.
[lxviii] World Bank, Office of Ethics and Business Conduct, supra note 67.
[lxx] World Bank, Statute of the Administrative Tribunal of the International Bank for Reconstruction and Development, International Development Association and International Finance Corporation, art. II [hereinafter “Statute of WBAT”]; World Bank, Staff Rule 8.01, Annex A, available at http://siteresources.worldbank.org/INTDOII/Resources/Staff_Rule_801.pdf.
[lxxi] Statute of the WBAT, at art. IV.
[lxxii] Id. at art. XI,
[lxxiii] World Bank, Rules of the World Bank Administrative Tribunal, rule 7, available at http://web.worldbank.org/external/default/main?pagePK=7333373&contentMDK=22961288.
[lxxiv] Id. at rules 7(10), 9.
[lxxv] Id. at rules 10, 11
[lxxvi] Id. at rule 17.
[lxxvii] The Joint Bank Group/Fund Health Services Department, which operates the Personal and Work Stress Counseling Unit, is run jointly by the World Bank and IMF. The Office provides the same counseling and consultative services to both World Bank and IMF staff and managers. See http://wbfn.org/calendar/wbg-services/health-service-intro.html.
[lxxix] World Bank, 2009 Annual Report: Peer Review Services, at 7, available at http://go.worldbank.org/QUIHTIS720.
[lxxxii] U.N., Structure and Organization, http://www.un.org/en/aboutun/structure/index.shtml#Others (last visited Oct. 18, 2012).
[lxxxiii] GA Res. 59/283 (2006).
[lxxxiv] G.A. Rep., Report of the Redesign Panel on the United Nations system of administration of justice, at ¶ 5, U.N. Doc. A/61/150 (July 28, 2006), available at http://www.un.org/ga/president/62/issues/resolutions/a-61-205.pdf [hereinafter “UN Redesign Panel Report”].
[lxxxv] G.A. Res. 61/261, U.N. Doc. A/RES/61/261 (Apr. 30, 2007); GA Res. 62/228, U.N. Doc. A/RES/62/228 (Feb. 6, 2008).
[lxxxvii] Secretary-General Rep., Activities of the Office of the United Nations Ombudsman and Mediation Services, ¶ 93, U.N. Doc. A/66/224 (Aug. 2, 2011).
[lxxxviii] U.N. Ombudsman and Mediation Services, Who Are the Ombudsman and Mediators, http://www.un.org/en/ombudsman/ombudsmenlist.shtml (last visited Oct. 18, 2012).
[xciii] See Secretary-General Rep., supra note 87, at ¶ 11.
[xcv] G.A. Res. 62/228, ¶ 35, U.N. Doc. A/RES/62/228 (Feb. 6, 2008).
[xcvi] Id. at ¶ 37.
[xcvii] Id. at ¶ 36.
[xcix] U.N., Statute of the U.N. Dispute Tribunal, art. I (Dec. 24, 2008).
[c] See U.N. Redesign Panel Report, supra note 84, at 15-17.
[ci] The Secretary-General, Note by the Secretary General on the Report of the Redesign Panel on the United Nations system of administration of justice, sec. 17, delivered to the General Assembly, U.N. Doc. A/61/758 (Feb, 23, 2007).
[cii] Statute of the U.N. Dispute Tribunal, arts. 4 & 5.
[ciii] Statute of the U.N. Appeals Tribunal, art. I (Apr. 2012).
[civ] Id. at arts. 3, 4 & 10.
[cv] U.N., Fifth activity report of the Office of Administration of Justice: 1 July to 31 December 2011, at ¶ 37, available at http://www.un.org/en/oaj/unjs/pdf/Fifth_activity_report_OAJ.pdf.
[cvi] Id. at ¶ 44.
[cx] U.N. Redesign Panel Report, supra note 84, at 23.
[cxi] G.A. Res. 62/228, ¶ 14, U.N. Doc. A/RES/62/228 (Feb. 6, 2008).
[cxiii] Syed v. Secretary-General, para. 27, Judgment No. UNDT/2009/093 (Dec. 22, 2009); see also U.N. Office of Staff Legal Assistance: Frequently Asked Questions, http://www.un.org/en/oaj/legalassist/faq.shtml#faq2 (last visited Oct. 18, 2012).
[cxiv] ILO, About the ILO, http://www.ilo.org/global/about-the-ilo/lang–en/index.htm (last visited Oct. 18, 2012).
[cxv] Id. These groups collaborate in each of the ILO’s administrative bodies, including the International Labour Office, the Governing Body, and the International Labour Conference. Id.
[cxvi] ILO, Int’l Labour Office, http://www.ilo.org/global/about-the-ilo/who-we-are/international-labour-office/lang–en/index.htm (last visited Oct. 18, 2012).
[cxvii] See Int’l Labour Office, Office Directive IGS No. 76: Ethics in the Office, Ver. 1 (June 17, 2009), at 2-3, available at http://www.ilo.org/public/english/ethics/download/ethics.pdf [hereinafter “ILO Ethics Office Directive”].
[cxviii] ILO Ethics Office, Whistleblower Protection, http://www.ilo.org/public/english/ethics/areas/w_blowers.htm (last visited Oct. 18, 2012).
[cxx] See Int’l Labour Office, Report of the Ethics Officer, reports from May 2006-30 April 2007; 1 May 2007-30 December 2008; and 1 May 2008-31 December 2009.
[cxxi] Id. at 4.
[cxxii] Id. at 7.
[cxxiii] ILO Int’l Training Centre, Personnel, http://www.itcilo.org/en/the-centre/about-us/ethics/personnel (last visited Oct. 18, 2012). In 2009, the ILO announced a conflict of interest and disclosure policy for staff. See ILO Ethics Office Directive, supra note 117, at 3.
[cxxiv] ILO, Office of the Mediator, http://www.ilo.org/public/english/mediate/index.htm (last visited Oct. 18, 2012).
[cxxv] ILO Office of the Mediator, Standards of Conduct for ILO Mediators (Apr. 2008), sec. V, available at http://www.ilo.org/public/english/mediate/informal/mediation.htm.
[cxxvi] Int’l Labour Office, Report of the Mediator 2009, at 5.
[cxxvii] Statute of the Administrative Tribunal of the ILO, art. III [hereinafter “Statute of the ILOAT”]. ILOAT’s jurisdiction has been recognized by the following organizations (in order of recognition): World Health Organization (WHO), including the Pan American Health Organization (PAHO), International Telecommunication Union (ITU), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Meteorological Organization (WMO), Food and Agriculture Organization of the United Nations (FAO), including the World Food Programme (WFP), European Organization for Nuclear Research (CERN), World Trade Organization (WTO), International Atomic Energy Agency (IAEA), World Intellectual Property Organization (WIPO), European Organisation for the Safety of Air Navigation (Eurocontrol), Universal Postal Union (UPU) , European Southern Observatory (ESO), Intergovernmental Council of Copper Exporting Countries (CIPEC) (until 1992), European Free Trade Association (EFTA), Inter-Parliamentary Union (IPU), European Molecular Biology Laboratory (EMBL), World Tourism Organization (UNWTO), European Patent Organisation (EPO), African Training and Research Centre in Administration for Development (CAFRAD), Intergovernmental Organisation for International Carriage by Rail (OTIF), International Center for the Registration of Serials (CIEPS), International Office of Epizootics (OIE), United Nations Industrial Development Organization (UNIDO), International Criminal Police Organization (Interpol), International Fund for Agricultural Development (IFAD), International Union for the Protection of New Varieties of Plants (UPOV), Customs Co-operation Council (CCC), Court of Justice of the European Free Trade Association (EFTA Court), Surveillance Authority of the European Free Trade Association (ESA), International Service for National Agricultural Research (ISNAR) (until 14 July 2004), International Organization for Migration (IOM), International Centre for Genetic Engineering and Biotechnology (ICGEB), Organisation for the Prohibition of Chemical Weapons (OPCW), International Hydrographic Organization (IHO), Energy Charter Conference, International Federation of Red Cross and Red Crescent Societies, Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom), European and Mediterranean Plant Protection Organization (EPPO), International Plant Genetic Resources Institute (IPGRI), International Institute for Democracy and Electoral Assistance (International IDEA), International Criminal Court (ICC), International Olive Oil Council (IOOC), Advisory Centre on WTO Law, African, Caribbean and Pacific Group of States (ACP Group), Agency for International Trade Information and Cooperation (AITIC), European Telecommunications Satellite Organization (EUTELSAT), International Organization of Legal Metrology (OIML), International Organisation of Vine and Wine (OIV), Centre for the Development of Entreprise (CDE), Permanent Court of Arbitration (PCA), South Centre, International Organisation for the Development of Fisheries in Central and Eastern Europe (EUROFISH), Technical Centre for Agricultural and Rural Cooperation ACP-EU (CTA), The International Bureau of Weights and Measures (BIPM), ITER International Fusion Energy Organization (ITER Organization), Global Fund to Fight AIDS, Tuberculosis and Malaria, International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM).
[cxxix] ILO, About Us, http://www.ilo.org/global/about-the-ilo/lang–en/index.htm (last visited Oct. 18, 2012); ILO, About Us, The Tribunal, http://www.ilo.org/public/english/tribunal/about/index.htm (last visited Oct. 18, 2012).
[cxxx] Statute of the ILOAT, art. II(5); Annex to the Statute of the ILOAT.
[cxxxi] ILO, The Tribunal: About Us, http://www.ilo.org/public/english/tribunal/about/index.htm.
[cxxxii] Statute of the ILOAT, arts. III & VI.
[cxxxiii] Id. at art. VI(1). Appeals to the International Court of Justice are available in cases in which an Executive Board challenges a decision confirming ILOAT jurisdiction or highlights a fundamental procedural flaw. Annex to the Statute of the ILOAT, art. XII, para. 1.
[cxxxiv] Rules of the ILOAT, arts. 6 & 8.
[cxxxv] Id. at art. 11(1).
[cxxxvi] Statute of the ILOAT, art. V.
[cxxxvii] Id. at art. VI(2).
[cxxxviii] Annex to the Statute of the ILOAT, Article VI, para. 2.
[cxxxix] Brian Bloch, et. al, Systems for Dealing with Conflict and Learning from Conflict—Options for Complaint-Handling: An Illustrative Case, 14 Harv. Negot. L. Rev. 239 (2009), at 247.
[cxl] John P. “Jack” Kennedy, Improving the Step Below: Administrative Review in International Organizations, The Administrative Tribunal of the Asian Development Bank: 20 Years of Operation (Sept. 5, 2011), at 44, available at http://www.adb.org/sites/default/files/pub/2012/adb-administrative-tribunal.pdf.
[cxli] See Chris de Cooker, Improving the Step Below: Peer review in the Internal Justice System of International Organizations, The Administrative Tribunal of the Asian Development Bank: 20 Years of Operation (Sept. 5, 2011), at 53, available at http://www.adb.org/sites/default/files/pub/2012/adb-administrative-tribunal.pdf
[cxlii] Id. at 61.
[cxliii] Gov. Accountability Project, How the World Bank’s Peer Review Services Deny Staff the Right to a Fair Hearing (Aug. 2011), at 14, available at http://www.whistleblower.org/storage/Peer_Review_Services_Final_August_12.pdf.
[cxliv] See Report of the External Panel, supra note 26, at 52.
[cxlv] Id. at 38.
[cxlvi] Kennedy, supra note 140, at 38.
[cxlvii] Kennedy retired in 2008 from the IMF, where he worked for 22 years in senior human resources positions. Prior to that, he worked for ten years at the Asian Development Bank. Id. at 8.
[cxlix] Id. at 39.
[cl] Id. at 43.
[cli] Id. at 41.
[clii] Kennedy, supra note 140, at 47.
[cliv] See de Cooker, supra note 141, at 53.
[clv] In most of these cases, the Fund was essentially vindicated in its position, with some partial findings against the Fund on the merits.
[clvi] See generally Redesign Panel Report, supra note 84.
[clvii] Id. at 5.
[clviii] A rare example of oral hearings at the World Bank is John Y. Kim v. IBRD, Decision No. 448 (May 25, 2011), available at http://lnweb90.worldbank.org/crn/wbt/wbtwebsite.nsf/(resultsweb)/747BFCD689EE1874852578B200722E5C.
[clix] See Arnold Zack, Developing Standards of Workplace Justice in International Organizations, Am. Soc. Int’l Law Int’l Orgs. Interest Group Rev. (Summer 2010), at 50, available at http://www.law.harvard.edu/programs/lwp/.
[clx] Chris de Cooker, The effectiveness of international administrative law as a body of law, Symposium on the Development and Effectiveness of International Administrative Law, World Bank Admin. Trib. and Am. Society of International Law (Mar. 23, 2010).
[clxii] Int’l Civ. Serv. Comm’n, Standards of conduct for the international civil service (Jan. 2002), available at http://icsc.un.org/resources/pdfs/general/standardsE.pdf.
[clxiii] Dina Francesca Haynes, Ethics of International Civil Service: A Reflection on How the Care of United Nations’ Staff Impacts the Ability to Fulfill Their Role in “Harmonizing” the World, 30 Hamline J. Pub. L. & Pol’y 175 (2008), at 197.
[clxiv] Id. at 199.
[clxv] Id. at 216-17.
[clxvi] See, e.g., IMF, Report of the External Panel, supra note 26, at 72 (“[T]he SAC does not act as a trade union ….”); World Bank, Corporate Responsibility, http://crinfo.worldbank.org/wbcrinfo/node/19 (last visited Aug. 22, 2012) (“The SA [staff association] is not a union, and it does not engage in collective bargaining.”).
[clxviii] See United Nations, Joint Inspection Unit (Gerard Biraud), Staff-Management Relations within the United Nations (May 2011), UN Doc. JIU/REP/2011/10, at 42-43, available at http://www.unjiu.org/data/reports/2011/JIU_REP_2011_10%20FINAL_13%20March%202012.pdf [hereinafter “UN JIU report”].
[clxix] Id. at 44.
[clxx] Id. Salary scales and several other benefits are determined through recommendations of the International Civil Service Commission (ICSC). Int’l Civ. Serv. Comm’n, General Information, http://icsc.un.org/about/default.asp (last visited Aug. 22, 2012).
[clxxi] UN JIU report, supra note 168, at 44.
[clxxii] See ILO Declaration on Fundamental Principles and Rights at Work, June 1998, 37 I.L.M. 1237 (1998).
[clxxiii] U.S. Dept. of Treasury, Undersecretary for Int’l Affairs, 2008 Report to Congress on Labor Issues and the International Financial Institutions (2008), at 1, available at http://www.treasury.gov/resource-center/international/development-banks/Documents/Labor%20Report%202007%20final%20draft.pdf (noting that many development banks include the Core Labour Standards in standard bidding documents).
[clxxiv] ILO, Sriyan de Silva, Collective Bargaining Negotiations (1996), at 6, http://www.ilo.org/public/english/dialogue/actemp/downloads/publications/srscbarg.pdf.
[clxxv] See, e.g., World Bank Group, Annual Report 2009: Peer Review Services, at 7, available at http://documents.worldbank.org/curated/en/2009/01/12948813/peer-review-services-2009-annual-report (noting the desire “to reduce the antagonisms that attorneys sometimes engender”).
[clxxvi] International human rights law terms this procedural balance “the equality of arms.” See Kaufman v. Belgium, App. No. 10938/84, 50 Eur. Comm’n H.R. Dec. & Rep. 98, 115 (1986).
[clxxvii] See, e.g., ABA, Comment to Rule 1.7–Conflict of Interest: Current Clients.
[clxxviii] See World Bank Group, Annual Report 2009: Peer Review Services, at 6-7, available at http://documents.worldbank.org/curated/en/2009/01/12948813/peer-review-services-2009-annual-report.
[clxxix] U.N., OSLA Trust Fund Contribution, http://www.un.org/en/oaj/legalassist/trustfund.shtml (last visited Oct. 18, 2012).
[clxxx] U.N., Fourth activity report of the Office of Administration of Justice 1 July 2010 to 30 June 2011, at 9, available at http://www.un.org/en/oaj/unjs/pdf/Fourth_activity_report_OAJ.pdf.
[clxxxi] Dale Bagshaw, Resolving Disputes in Asia. What has culture got to do with it?, The Administrative Tribunal of the Asian Development Bank: 20 Years of Operation (Sept. 5, 2011), at 18-20, available at http://www.adb.org/sites/default/files/pub/2012/adb-administrative-tribunal.pdf.
[clxxxii] See, e.g., U.S. Dept. of State, Visas for Employees of International Organizations and NATO, http://travel.state.gov/visa/temp/types/types_2638.html#international (discussing “G” visas).
[clxxxiii] David Miller, Managing Cultural Differences in an International Organization Conflict Management System, 14 Harv. Negot. L. Rev. 271, 273 (2009).
[clxxxiv] Binyamin Appelbaum & Sheryl Gay Stolbert, At I.M.F., Men on Prowl and Women on Guard, Wash. Post, May 19, 2011, at A1.
[clxxxvi] Appelbaum, supra note 184.
[clxxxviii] Steve Stecklow, Sexual-Harassment Cases Plague U.N., Wall St. J., May 21, 2009.
[cxcii] Colum Lynch, U.N. Official Calls Ban’s Leadership “Deplorable”: Departing Office Chief Says Secretary General Undercut her Authority, Wash. Post, July 20, 2010.
[cxciii] Id. While primarily discussing internal investigations into corruption and misconduct, the Washington Post article highlighted a general lack of confidence in UN accountability.
[cxciv] The IG could ensure preservation of privacy through redaction of personal information.
[cxcv] 29 U.S.C. § 158(d). The duty to bargain in good faith has been interpreted to include a duty to furnish information necessary to carry out this obligation. See Labor Board v. Truitt Mfg. Co., 351 U.S. 149, 155 (1956).
[cxcvi] 5 U.S.C. §7114 (b)(4).
[cxcvii] See Arnold Zack, Developing Standards of Workplace Justice in International Organizations, Am. Soc. Int’l Law Int’l Orgs. Interest Group Rev. (Summer 2010), at 46, available at http://www.law.harvard.edu/programs/lwp/.
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