Tuesday, April 27, 2010

Transparency at the World Bank

This seems like an unqualifiedly good move:


World Development Indicators, Global Development Finance, Africa Development Indicators, and Global Economic Monitor are now free, open, and easy to access at data.worldbank.org.

Recognizing that transparency and accountability are essential to development, the World Bank Group now provides free, open, and easy access to its comprehensive set of data on living standards around the globe—some 2,000 indicators, including hundreds that go back 50 years. The data is available in Arabic, French, and Spanish in addition to English.

“I believe it’s important to make the data and knowledge of the World Bank available to everyone,” said World Bank Group President Robert B. Zoellick. “Statistics tell the story of people in developing and emerging countries and can play an important part in helping to overcome poverty. They are now easily accessible on the Web for all users, and can be used to create new apps for development. ”

The open data announcement coincides with the launch of the World Development Indicators (WDI) 2010, the Bank’s popular statistical resource. Apart from giving open access to the WDI, with nearly 1000 indicators, the initiative also opens up the Global Development Finance (GDF), Africa Development Indicators (ADI), Global Economic Monitor (GEM), and indicators from the Doing Business report.

Access to these new resources is available at data.worldbank.org, a central web site that makes it easier to find, use, and manipulate data. A data catalog lists the available databases. The Bank will continue to add databases in the months ahead.

It is not, perhaps, the kind of transparency that we immediately think of in relation to the opening up of global administrative bodies (e.g. in terms of decision-making and dispute resolution), but this is nonetheless an important development. So-called "indicators" are becoming increasingly important as a tool of global governance, and the World Bank has been at the very forefront of this move. Opening up its data in this way will not only provide a hugely useful resource for those who want to incorporate it in their own projects; it will also give plenty to chew over for those who approach the "turn to indicators" from a more critical perspective, and seek to unmask the inevitable political choices and interests that lie behind the apparently neutral, technical façade.

Incidentally, the IILJ is leading its own Project on Indicators as a Global Technology, running in parallel to - and overlapping with - the GAL project more generally. Here's the blurb:

The use of indicators as a technique of global governance is increasing rapidly. Major examples include the World Bank’s Doing Business Indicators; the World Bank’s Good Governance and Rule of Law indicators; the Millennium Development Goals (which inform many indicators); many OECD indicators and rankings; the indicators produced by Transparency International, by Freedom House, and by consultancies specialized in advising investors on political risks; and, the US State Department’s Trafficking in Persons indicators. Human rights indicators are being developed in the UN and regional and advocacy organizations. The burgeoning production and use of indicators has not been accompanied by systematic comparative study of, and reflection on, the implications, possibilities and pitfalls of this practice. What does it mean to use indicators as a technology of governance? How does the increasing use of indicators in global governance affect the distribution of power, and the power of the governed? How does it affect the nature of decision-making about the allocation of resources and efforts to monitor compliance with global standards? This project, directed by Kevin Davis, Benedict Kingsbury, and NYU legal anthropologist Sally Engle Merry, working closely with Meg Satterthwaite, Lewis Kornhauser, Richard Stewart, and other NYU faculty, examines this phenomenon. A framing paper and workshop series are in preparation.

Some papers are available at the link above; they are well worth a read for those interested (on the World Bank in particular, see Kevin Davis and Michael Kruse, Taking the Measure of Law: The Case of the Doing Business Project; on the project more generally, Kevin Davis, Benedict Kingsbury, and Sally Engle Merry, Indicators as a Technology of Global Governance).

Monday, April 5, 2010

Judge Adams and the Bertucci Case before the UNDT: An Update

Following on from my earlier post on the facinating stand-off between the UN Secretary General and Judge Adams of the New York office of the UN Dispute Tribunal, I thought it might be interesting to post a quick update as to the latest developments. As far as I can see, these are to be found in Ruling 59/Rev.1 On Production of Documents (26 March 2010). This slightly lengthier ruling runs to some 30 pages, but it is worth reading in that Judge Adams begins with a detailed summary of "the story so far" of his orders regarding the production of certain documents and people, and the flat refusal of the Secretary to comply with them.

He then (at around para. 13) moves on to the most recent developments, which are, effectively, that the Secretary General has appealed the orders in question to the UN Appeals Tribunal, meaning that, in accordance with Art 7.5 of the Tribunal's Statute (ATS), execution of the specified orders was automatically stayed. Adams' response did not mince words (apologies in advance for all the blockquotes in this post, but part of what makes this so interesting is the tone in which the debate is being conducted):

This action should be seen in context. Despite five appearances so far, counsel for the respondent did not intimate that any appeal was contemplated. Had it been under contemplation, it would have been an easy step to have sought a stay from the Tribunal to permit due consideration to be given to the question. Moreover, in respect of the order requiring attendance of the responsible officer, counsel for the respondent explicitly declined to submit either that it was made without jurisdiction or erred in law. And the question in issue is not complicated, either in law or in fact. However, the path chosen was simply to disobey the orders of the Tribunal. This strongly suggests that the appeal is not bona fide but a procedural device to avoid obedience or at least delay it.
[T]he suspension under art 7.5 of the ATS (assuming it to apply) did not deal with the problem of past disobedience and noted that the legal situation is clear beyond debate: an order made by the Tribunal must be obeyed, whether it is legally in error or not. Accordingly, until it is reversed on appeal or stayed, it is extant and compliance by the party to whom it is directed is an undoubted legal obligation. I explained that, at the time of the respondent’s refusal to obey, the orders were relevantly valid and that a suspension under art 7.5 of ATS could only operate prospectively. Thus, even though if (and I did not necessarily accept that this was so) the Tribunal’s orders were presently not executable, this could not change the fact that they were disobeyed at a time when there can be no doubt that they were executable. As I put it, the suspension cannot turn obedience into disobedience.

There then follows a lengthy discussion of the meaning of the various relevant provisions of the Statutes of the Dispute and Appeals Tribunals respectively. The key elements of Adams' decision seem to be as follows:

1) That the Secretary General has no residual discretion as to the production of documents that have been required by the Tribunal:

29. The UN Administrative Tribunal itself authoritatively stated on a number of occasions, as I set out in my Order No. 42 (NY/2010), that it would not accept the legitimacy of disobedience of its orders and that it was not for the Secretary-General to decide what would be provided and what would not... The reform of the system of the administration of justice has not increased the powers of the Secretary-General. He was not then a judge in his own cause and is not now. The DTS in art 9 gives power in unqualified language to require the production of documents...

There is no reservation to the Secretary-General of any power to withhold documents required to be produced or to unilaterally determine the issue of confidentiality. Indeed, both the Statute and the Rules are manifestly inconsistent with the implication of any such power.

2) That simply drawing adverse conclusions in the particular case in question was an inadequate response to the Secretary General's failure to comply with the Tribunal's Orders, and the challenge to the administration of justice that this poses (this represents a hardening of Adams' position from previous orders, in which he had only stated his "inclination" not to hear Counsel for the Secretary General in other cases until the disobedience was purged):

31. ... As to the consequences of disobedience, in respect of the particular case, the Secretary-General cannot require the applicant to be put to proof of his or her case and at the same time withhold evidence that is relevant to that case and, accordingly, judgment must be given by default to the applicant. In respect of compensation, the Tribunal must draw all available adverse inferences, since the Secretary-General cannot be permitted to profit from his disobedience.

32. However, in my view, these outcomes are insufficient to deal with disobedience of an order to produce, since they are confined to the outcome of a particular case and do not vindicate or protect the jurisdiction of the Tribunal from the abuse of its proceedings that disobedience entails. As a matter of fundamental principle it cannot be proper that a party who defies the jurisdiction of the Tribunal can seek to take advantage of it and, in this respect, that must affect every case in which it seeks to do so until that disobedience is purged. This is not a matter of punishment, it is simply the logical consequence of refusing to acknowledge the jurisdiction of the Tribunal...

33. Put in another way, a party cannot pick and choose which orders it will obey and which it will not, nor can it purchase the right to disobey by being willing to pay the price of losing the case in which, as it happened, the disobeyed order has been made.

3) The Tribunal has the right to protect its own integrity, and that of its proceedings from abuse. (This was interesting, in that Adams had initially styled this as the "the common law approach to situations where a party is in defiance of an order of the court", and counsel for the Secretary General had indicated that this was an invalid importation of principles of national law to the UN system):

42. ... It follows from first principles that any judicial tribunal with the ability to make legally binding orders must possess inherent powers to control its own processes to protect its jurisdictional integrity, which follow necessarily from the very institution of the tribunal itself. Such a basic proposition does not depend on the national laws of States. As has been shown, the existence of such an inherent power has been asserted by the ILOAT and the UN Administrative Tribunal. The mere fact that the same situation is found in national courts is scarcely surprising, given the fundamental character of the rule and the essential logic that it embodies.

4) That the Tribunal itself has jurisdiction to decide whether a putative appeal has caused proceedings before it to be stayed:

44. In my opinion, the Tribunal has not only the jurisdiction but the inescapable obligation to determine whether or not its proceedings are stayed... The effect of a decision to leave the matter to the Appeals Tribunal to decide is to grant a stay, the very lawfulness of which is in issue. Of course, the Appeals Tribunal – if the matter needs to be decided there – will have to exercise its own judgment about the matter. But that is what appeals entail.

5) That Orders of the Tribunal are not "judgments" in the sense of Art. 11 of the Statute of the Dispute Tribunal, which provides for appeals, and are thus not subject to appeal. In an interesting - and persuasive - discussion, Adams notes that the requirement for appeals to be filed within 45 days (under Art. 7.5 ATS) would, if applied to all orders in the manner suggested, simply produce absurd results:

47. Moreover, on the respondent’s contention, no order for production could have a shorter timescale for compliance than 45 days. It is no answer to this (as was submitted during argument) that it could voluntarily be obeyed more quickly... In many instances, the making of such an order occurs during a trial, as when there is an adjournment and witnesses are ordered to attend on the following day or particulars or information are required for the continuation of proceedings. The notion that none of these orders – both conventional and essential for effective case management – and which might well be cascaded could require things to be done before 45 days had expired after each one is so absurd as to lead ineluctably to the conclusion that art 11 and art 11.3 in particular cannot apply to executory orders at all, in particular orders to produce documents.

48. It is, of course, necessary to factor in – if these orders can be appealed – the time frames prescribed by the Appeals Tribunal’s Rules of Procedure. Under art 7 and 9 of these Rules, the appellant has 45 days to appeal a decision of the Dispute Tribunal and the respondent has 45 days in which to file an answer. Consequently, three months could well elapse even before the appeal of an order is ready for hearing. Cases interrupted by appeals against procedural orders could therefore experience very substantial delays indeed, possibly years. It is impossible to accept that such a consequence was contemplated, let alone intended, by the General Assembly.

6) That the Orders for production and identification are not stayed:

64... Although a stay was not initially sought by the respondent despite its evident availability, I have considered in fairness whether in the present circumstances I should order a stay pending the outcome of the appeal. I do not do so for two reasons. A stay can only be justified for good reasons. Where the essential ground is that the order is subject to appeal, it is necessary to be persuaded that there are substantial grounds for appeal with significant prospects of success, or that irreparable injury would be occasioned, as by destruction of the subject matter of the litigation, or there is some other good reason for doing so. Here, the respondent has not, it appears, yet put its grounds of appeal in final form and will not do so for some time. This is surprising. It may be naïve, but one would have thought that, before deciding to disobey an order of the Tribunal, careful consideration would first have been given to the legal questions involved and a clear conclusion drawn about its legality. That it appears now that the legal issues were not clearly articulated and understood is troubling. It suggests that legality was thought to be immaterial, or at least, not problematical. If they are the same as has been proffered to me, they are not substantial and do not have significant prospects of success. Although it is said that irreparable injury would result, this is not identified. If it means that the Tribunal would be placed in possession of sensitive and confidential material, that is scarcely irreparable, since confidentiality can be maintained by the Tribunal. Any other injury can be corrected by the Appeals Tribunal on the assumption, of course, that the appeal succeeds. Further, the identification of the relevant decision-maker is not an injury of any kind.

As noted above, this is a fascinating incident; and it may well become something of a test case for the new administration of justice system at the UN. The stance of the Office of the Secretary General is pretty baffling: the refusal to identify the official concerned - indeed, the refusal by counsel to even identify the "bosses" to whom she is answerable (see para. 15) - is fairly preposterous in and of itself; while, barring any strings-pulled, ears-whispered-in travesty, Adams' contention that the chances of any appeal being successful seem remote in the extreme is also persuasive. Precisely why, then, they are not backing down on this issue - when it seems clear that Judge Adams will not - is something of a mystery.

There is a further GAL-related subtext to this issue. At the GAL Workshop in Geneva last year on the role of IOs in global governance, one issue that emerged was that head legal officers of international organisations were becoming increasingly concerned over the prospect of national court setting aside their immunities in disputes involving third parties where effective alternatives in terms of access to justice were not made available at the international level (and a concomitant acknowledgment that in many cases, existing arbitration provisions simply amounted to a denial of justice). One idea that was mooted, and received cautious support, was for extending the jurisdiction of administrative tribunals such as the UNDT and the ILOAT to cover third party disputes. So it is not inconceivable that the result of the current stand-off may have repercussion beyond simply the internal administration of the UN.

So what next for Judge Adams and the Secretary General? Who will blink first? Will the Appeals Tribunal get involved? Will it make any difference? Stay tuned...

Thursday, April 1, 2010

The Strange Normativity of IOs: Part I

A recurring question by those less familiar with the field of global administrative law is precisely why, and in what regard, the claim - central to the field - that international organizations can now be viewed as public administrative bodies can be made and defended. The stock answer is that they exercise public power that cannot be accurately described as either legislative or judicial in nature. "Administrative" then becomes something of a negatively-defined catch-all.

Many, however, seem to find this unsatisfactory; and indeed, it does appear to me to be at best only half of a definition. I thought it might be useful, therefore, to start a small series of posts (perhaps a series of one; we'll see how things go) on the "strange normativity" of international organisations: that is, the ways in which their activities take on important normative characteristics, or impact upon the existing "hard" legal orders, whether at the global, regional or national levels. While this will not - at least initially - provide the missing "half" of the definition discussed above, it will I hope provide some examples of the reasons why it is suggested that the activities of international organisations that fall short of actual law creation (as most do) nonetheless have important public normative characteristics - and thus flesh out a little what is meant by this category of global "administrative" power.

To kick off the series, an interesting example of the interplay between the activities of IOs and domestic constitutional law in my new home, Australia. As many will know, Australia is a federal state; and - as almost always is the case in federal states - the issue of the division of competences between the federal and state governments is often the cause of controversy. The issue is regulated by s51 of the Australian Constitution, which lists what are known as the "federal heads of power". Perhaps the most important of these is contained in s51(xxix.), which vests the power to legislate over matters involving "External Affairs" in the Commonwealth Parliament.

Of particular interest to me here, however, is the expansive interpretation that this has been given by the Australian High Court. In Commonwealth v. Tasmania (1983), it held that

It is preferable that the circumstances in which a law is authorized by the external affairs power be stated in terms of what is sufficient, even if the categories overlap, rather than in exhaustive terms. To be a law with respect to external affairs it is sufficient that it:

(a) implements any international law; or
(b) implements any treaty or convention whether general (multilateral) or
particular; or
(c) implements any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, The United Nations Education, Scientific and Cultural Organization, The Food and Agriculture Organization or the International Labour Organization;

And further that:

It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation.

The "soft law" activities of IOs - of global administrative bodies - therefore have a direct normative impact on Australian constitutional law, in affecting the division of competencies between the Commonwealth and State parliaments. One interesting example, I thought, of the strange normativity of IOs...

More on Chevron-Ecuador BIT arbitration

Via Opinio Juris, a quick update on my post below: Chevron have just been awarded damages of circa $700 million by an arbitral panel set up under the US-Ecuador BIT, on the basis that court delatys in rulings on commercial matters constituted a violation of the BIT by not providing an effective means of asserting claims and enforcing rights.

While this case appears to have largely concerned an issue of judicial, rather than administrative due process, it is not irrelevant from a GAL perspective - not least because Ecuador has rejected the finding of the arbitral panel; a course of action that is not, in international legal terms at least, really open to it. Chevron's own site (so perhaps not the least biased source around) notes that

Ecuador is defending the second largest arbitration docket in the world with more than 11 claims seeking more than US$6.5 billion in damages. Ecuador has withdrawn from the World Bank's arbitration program, making it the second country ever to do so, and has indicated its intention to cancel scores of bilateral investment treaties that provide for international arbitration of investment disputes.

It will be interesting to see whether this does indeed come to pass; and, if so, whether Ecuador will remain an outlier, or whether other developing countries may be tempted to challenge the network of bilateral treaties that have been developed to govern international investment.

Sunday, March 28, 2010

Did the WHO "Cry Wolf" Over Swine Flu?

The World Health Organization (WHO) is fast becoming one of the more controversial international organizations within the UN family, with a number of allegations (or, depending on your viewpoint, commendations) that it has developed a penchant for operating ultra vires, or beyond its mandate. The most striking (but by no means the only) example of this was in relation to the SARS crisis, where the WHO took certain steps to control the disease - such as the issuance of travel advisory warnings in relation to affected States - which had a significant impact on the economies of the States in question, but for which the Organization had no explicit mandate.

While the WHO actions with regard to SARS was not without its critics, it has been largely viewed as a good example of a global administrative body asserting its independence and acting rapidly to avert a global crisis. That, however, may be changing: following the prominent role played by the WHO in the swine flu scare, and the low levels of infection that have since been observed, the behaviour - and processes - of the Organization in this and other putative health crises is being revisited. (See here for the Daily Mash's inimitable take on WHO and the swine flu pandemic).

Via the Guardian, we learn that a draft report being prepared for the Parliamentary Assembly of the Council of Europe (PACE), by UK Labour MP Paul Flynn, is very critical of the WHO's handling of the swine flu outbreak, effectively accusing the Organization of "crying wolf" over the issue, and thus risking public confidence in future cases:

In the United Kingdom, the Department of Health initially announced that around 65,000 deaths were to be expected. In the meantime, by the start of 2010, this estimate was downgraded to only 1,000 fatalities. By January 2010, fewer than 5,000 persons had been registered as having caught the disease and about 360 deaths had been noted...

This decline in confidence could be risky in the future... When the next pandemic arises many persons may not give full credibility to recommendations put forward by WHO and other bodies. They may refuse to be vaccinated and may put their own health and lives at risk.

Interestingly, at a public hearing of PACE's Committee on Social, Health and Family Affairs, Flynn has expanded his comments to previous actions taken by the WHO:

The world has been frightened by a serious of health scares – SARS, Avian 'Flu and now Swine 'Flu. We now know, in hindsight, that the fears that were aroused do not appear to be justified. So we want to know how decisions on pandemics are taken – are they taken on the best scientific, epidemiological evidence, or are they influenced by other interests? That is the basis of this complaint. With H1N1, did the WHO, once again, frighten the world without any substantial evidence?

It is, of course, this focus on decision-making procedures that is of most interest to us from a GAL perspective; as the Guardian article notes,

Flynn's draft accuses the WHO of a lack of transparency. Some members of its advisory groups are flu experts who have also received funding, especially for research projects, from pharmaceutical companies making drugs and vaccines against flu.

This ties in to claims that are being made in other fields, most notably that of climate change and the recent travails of the IPCC (on which more soon): given that the production of scientific knowledge is now such a crucial part of global governance in a number of very high-profile fields, are we to see the traditional models of academic scientific accountability (most notably peer review) make way for more robust provisions modelled on - indeed, representing a discrete branch of - administrative law?

Monday, March 15, 2010

BITS, Fair and Equitable Treatment and the Cross-Pollination of GAL

I wanted to flag an interesting post by Roger Alford over on Opinio Juris, in which he notes that a New York court has given Chevron leave to bring an arbitration claim against Ecuador under the US-Ecuador Bilateral Investment Treaty, despite the fact that Chevron is currently fighting a 17 year old lawsuit in Ecuador over rain forest contamination (an issue that it acquired when it bought Texaco in 2001). Of key interest here is the fact that Chevron wants to go to arbitration over, inter alia, a claim that it has been denied due process in the Ecuadorean courts. More generally, they are seeking a finding that

...Ecuador has breached the 1194, 1995, 1996 and 1998 investment agreements and the Ecuador-United States BIT, including its obligations to afford fair and equitable treatment, full protection and security, an effective means of enforcing rights, non-arbitrary treatment, non-discriminatory treatment, national and most favoured nation treatment, and to observe obligations that it entered into under the investment agreements.

Of course, it is not certain that an arbitration proceeding would have any impact on the cae in Ecuador; or, indeed, that the panel would find that it had jurisdiction to hear the case. However, Alford notes that "In the hearing this week, counsel for plaintiffs in the underlying Ecuadorian litigation described the arbitration as 'a collateral attack' on a future Ecuadorian judgment"; and there would seem to be some risk of this, given that Chevron are also seeking a finding that

...Claimants have no liability or responsibility for environmental impact, including but not limited to any alleged liability for impact to human health, the ecosystem, indigenous cultures, the infrastructure, or liability for any unlawful profits, or for performing any further environmental remediation arising out of the former Consortium.

Of most interest to me here, however, is Alford's analysis of why Chevron is pursuing this course of action; which, if correct, provides an interesting insight into the way in which recourse to GAL mechanisms in one context can - at least, it is hoped - lead directly to improvements in administrative law protections at other levels of governance, and can also impact upon domestic implementation of awards from other jurisdictions:

My sense is that Chevron is bringing this action not only in an attempt to succeed on the merits of its due process claim, but also to send a signal to the Ecuadorian court that any future action that denies Chevron basic due process will be subject to international scrutiny. The Ecuadorian court now faces the unpleasant prospect of knowing that the Ecuadorian government may be on the hook financially for any improper judgment rendered against Chevron.

I also think it is quite plausible that the BIT arbitration is an opening salvo in future attempts by Chevron to challenge the enforcement of the Ecuadorian judgment in foreign courts. If a BIT arbitration panel concludes that Chevron has been denied due process, this would significantly bolster arguments that the foreign judgment should not be enforced in the United States under the Hilton v. Guyot standard.

Has the Secretary General been barred from bringing claims before the UN Dispute Tribunal?

The answer, it seems, is yes; until, at least, he does what he's told, says sorry and promises not to do it again...

A quick post to highlight a fascinating stand-off currently playing out in the new UN Dispute Tribunal (something I will post on in more detail when I get a minute, as it really is an important development in terms of more traditional international administrative law).

The case in question is Bertucci v. Secretary General of the United Nations, currently being heard by Judge Adams in New York. In his Order No. 40 (NY/2010) of 3 March 2010, he ordered the respondent (the Secretary General) to submit to the Tribunal certain documents pertaining to the case in question. On 7 March 2010, the Respondent entered a submission stating that it declined to submit the documents required of it, and giving reasons for this.

Judge Adams was, perhaps understandably, less than enamoured with this course of action. In Order No. 42 (NY/2010), he notes:

4. To disobey an order of the Tribunal is undoubtedly contempt. Whether it is so described matters not. A deliberate decision to disobey is a direct attack upon the jurisdiction of the Tribunal and its power to undertake the responsibilities with which it has been entrusted in its Statute by the General Assembly.

5. The Tribunal will not accept the legitimacy of disobedience of its orders...

8. This problem has been considered in the common law and the position is clear. Time does not permit me to discuss the relevant cases. But they do not represent any peculiarity of the common law, merely the consequences of the courts controlling their own procedures in the face of contempt-here the willful disobedience of an order of the court-by exercising its necessarily inherent power to vindicate the integrity of its jurisdiction. In my view, a party who has willfully disobeyed a direct order of the Tribunal is not entitled to appear in the Tribunal to advance its case, nor to call any evidence whilst that party remains disobedient and until that disobedience has been purged...

10. The third question is this: why should the respondent be entitled to appear in any proceedings before the Tribunal whilst it is in willful disobedience of an order of the Tribunal? Counsel for the respondent submitted that it should suffer its exclusion only in this case. I decided to reserve the question for the present, but I cannot think that the respondent can be permitted to say, in effect, that it cares about outcomes in different cases differently and only complies with orders where it wants to defend a case. I do not think the Tribunal can be subjected to such a process. But, for now, until my order is complied with, I will not hear the respondent. The applicant is entitled to proceed, on the basis that none of the respondent's material will be considered.

Counsel for the Secretary General then sought to argue that they should be heard in relation to other cases while the dispute over Order No. 40 was ongoing. Judge Adams clarified has since clarified his position, in Order No. 43, in the following terms:

8. Counsel for the respondent contended that it would, in effect, undermine the· administration of justice to deny the respondent a hearing. Of course, this would generally be the case. But the respondent is not being denied the opportunity to be heard, which is the correct statement of the principle. The respondent has it in his hands to take advantage of the opportunity to be heard by obeying the orders of the Tribunal. It is the respondent's own acts that must have the effect of excluding him. Counsel's argument essentially is that the respondent should be able to be heard in the Tribunal whilst denying the obligation to obey the orders of the Tribunal. This is an untenable position.

9. In my view, it would entirely undermine the authority of the Tribunal if the respondent could continue to invoke the jurisdiction of the Tribunal in cases where there were no orders to which he objected, but was indifferent to what occurred in cases where there were orders he decided he would disobey. It would leave the Tribunal in the position that it would never know whether its orders would be complied with or not in the face of the undoubted legal obligation to obey the Tribunal's orders. Accordingly, the Secretary-General will not be heard in the accountability case and he should have fair notice that should his counsel make application to be heard in the other cases before me, my present inclination is that until the disobedience of the Secretary-General is purged by producing the documents I have required to be produced, accompanied by an apology to the Tribunal and an undertaking not to disobey an order again, the respondent will not be entitled to appear, before me.

10. The fundamental purpose is not to punish the respondent, but to make clear that the respondent does not get to decide which orders he will comply with and which he will ignore. There is no other way the jurisdiction and integrity of the Tribunal can be upheld. I regard the refusal as a direct and brazen attack on the rule of law created by the General Assembly and solemnly embodied in the Statue of this Tribunal. The Secretary-General can either comply with the rule of law, or he can defy it, but it should be understood, that if ·he defies it, he cannot expect that the Tribunal will be prepared to listen to what might be said by him or on his behalf. I trust the matter is now clear.

It is hard not to like Judge Adams, who it seems is causing something of a stir in UN circles with his principled stand in these latest orders; the idea that the Secretary General is really bound by the decisions of the Tribunal has apparently come as a bit of a shock. In his latest order on this issue, Adams notes that the Secretary General has requested a week for "further consideration" to be given to the orders; refusing to back down, rhe eplied that "The question of principle is simple and easily understood. I am unable to see how any reasonable consideration of it could take so long." Updates on this case can be found here as it unfolds.

He also notes that "At the close of the day's proceedings, the Tribunal ordered that the officer who made the decision that Tribunal's Order 40 (NY 12010) would not be complied with is to appear before me at 10:00 a.m., Wednesday, 10 March 2010."

Shame I'm not still in New York - would have been fun to have been a fly on the wall at that one...

**UPDATE** Brilliantly, the officer in question didn't show up. Probably best just to give you Judge Adams' reaction in his own words:

It is clear that the decision to disobey the Tribunal's Order No. 40 (NY/2010) as to production of documents was taken by an officer of the Organization. Accordingly, yesterday I also ordered (Order No. 44 (NY/2010)) the officer who had made the decision to disobey the order, whose identity has not been disclosed, to appear in the Tribunal this morning at 10:00am, expecting that counsel for the respondent then in court would take appropriate steps to ascertain that person's identity and inform him or her of the order to appear...

At shortly after 9:30am this morning the Registry was informed in a document entitled "submission" and signed by a legal officer and the Chief of the Administrative Law Section of the Office of Human Resources Management as follows-

In response to Order No. 2010/44, the respondent notifies the Tribunal that the officer referred to ... will not be appearing before the Tribunal at 10.00am on 10 March 2010...

As I have already said, the refusal to obey the Tribunal's Order is a brazen attack upon the rule of law embodied in the Tribunal and cannot be disregarded. In other jurisdictions, serious personal penalties would apply to officials who willfully disobeyed the order of a court. That sanction is not. available to the Tribunal except through misconduct proceedings. It follows therefore that the Tribunal must use other means of enforcing the jurisdiction which has been entrusted to it by the General Assembly under the Charter and pursuant to its Statute. The Tribunal has an inherent jurisdiction to safeguard its own proceedings, to ensure that they are not abused by any party and to ensure, so far as possible, that its orders are obeyed. A party which is in willful disobedience of an order cannot at the same time expect that he, she or it will be permitted to invoke the jurisdiction of the Tribunal to vindicate their contractual rights. The Tribunal is no respecter of persons. The Organization, which is represented by the Secretary-General, is a mere contracting party before the Tribunal, with no status greater or better than that of the staff member, and is subject to the same rules.

When counsel was directed to convey my Order to the decision-maker, she informed me that she needed to "talk to her bosses" and could only convey my Order "through my hierarchy". I informed counsel, "Your bosses should understand that, if my Order is not obeyed, I will expect a person to appear tomorrow morning to explain why. It is the professional obligation of a lawyer to convey decisions of the court to the client. I expect that obligation to be fulfilled. If there is a question about whether it is fulfilled or not, I will expect an explanation."

That, I think, is quite clearly fighting talk.

Sunday, February 21, 2010

... And a conference on Private Military Companies

As a quick follow up to my earlier post, a conference that may be of interest to readers - particularly Francophone readers - of the GAL blog has been brought to my attention:

Université d’Auvergne - Faculté de droit de Clermont-Ferrand
Lucrum in bello:
Les entreprises militaires et de sécurité privées dans le monde contemporain
4-5 mars 2010

The full programme is available here (and here). There is clearly much that will be of real interest from a GAL perspective, with individual sessions on "le cadre juridique des entreprises militaires et de sécurité privées" and "les questions de responsabilité naissant de l'activité des entreprises militaires et de sécurité privées" (both of the Companies themselves and of the entities that make us of them); and a round table on the issue of "Quel contrôle exercer sur les entreprises militaires et de sécurité privées?".

As far as I can see, registration is free - just contact christiane.baroukh@u-clermont1.fr. Looks like a very interesting event, for those linguistically and geographically able...

New publication on private military companies...

The issues surrounding the use of private military companies have long been of more than tangential interest to the field of global administrative law; it represents in many ways the paradigmatic example of "outsourcing" of public functions (indeed, the public function par excellence) to private actors.

The recent volume edited by Simon Chesterman and Angelina Fisher, Private Security, Public Order: The Outsourcing of Public Services and its Limits (OUP, November 2009) deals squarely with the GAL aspects of this issue. The introductory chapter is available in full here. This is the second edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies; the first, From Mercenaries to Market: The Rise and Regulation of Private Military Companies, edited by Chesterman and Chia Lehnardt, was published by OUP in 2007.

Here is the (edited) blurb from the new volume:

Private actors are increasingly taking on roles traditionally arrogated to the state. Both in the industrialized North and the developing South, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction...

[This volume] looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, the book examines private military and security companies through the wider lens of private actors performing public functions. In the past two decades, the responsibilities delegated to such actors - especially but not only in the United States - have grown exponentially. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally "public" functions. Can and should a government put out to private tender the fulfillment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? This discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.

And the table of contents:

Introduction — Simon Chesterman & Angelina Fisher

Part I: Accountability gaps
1. The privatization of violence — Michael Likosky
2. The responsibility of states — Olivier De Schutter
3. Accountability to whom? — Angelina Fisher

Part II: Lessons from other sectors
4. The privatization continuum — Daphne Barak-Erez
5. Private prisons and the democratic deficit — Alfred C. Aman, Jr.
6. Regulatory choices in the privatization of infrastructure — Mariana Mota Prado
7. Human rights and self-regulation in the apparel industry — Rebecca DeWinter-Schmitt

Part III: Limits
8. Police informants — Jacqueline Ross
9. Intelligence services — Simon Chesterman
10. Peacekeeping — Chia Lehnardt

11. Conclusion: Private security, public order — Simon Chesterman & Angelina Fisher

Essential reading for those working in this particular field, and well worth a look for anyone interested in the public/private nexus within the field of GAL.

Friday, February 19, 2010

The Sixth Viterbo GAL Seminar

And in the first post of the New Era, I return to a GAL Blog staple: the yearly Seminar in Viterbo, Italy. Unfortunately, the deadline for paper submission has, of course, already passed; however, given the importance and topicality of the theme this year, it's sure to be a cracker.

This year's event will take place, as always, at the University La Tuscia, Viterbo, and will be held on the 11th-12th of June 2010. Its theme is, in a sense, the only one it could be this year: "The Financial Crisis and Global Regulatory Governance" (as I have discussed before, one of the striking features of the debates on how to respond to the crisis is the apparent consensus that we will need more global administration). Here is the blurb:

The basic models of market regulation that have prevailed during the XX century had been forged in reaction to the crisis of 1929. The responses given to that economic emergency, initially conceived as transient, have deeply shaped the relations between the market and the State for more than fifty years. In the United States, the New Deal has immensely expanded the reach of the public regulatory powers in economic and social matters and has led to the introduction of new modes of interaction between the citizens and the agencies through the 1946 Administrative Procedure Act. Similarly, in Europe, the crisis has expanded the programs of public assistance and the instruments of central planning, thereby subjecting the market to a significant State control.

At the international level, the Bretton Woods institutions (IMF, WTO, World Bank) were created after WWII to address various structural aspects of the 1929 crisis as well as states’ “beggar thy neighbor” policy responses to it, and prevent a recurrence of a prolonged global depression.

In the last thirty years, widespread convergent processes of liberalization, privatization and internationalization have eroded the State control over the economy and altered the balance between the public and the private sphere. State authorities have begun to lose their centrality, to the advantage of private organisms and supranational institutions. Many aspects of state regulation have been regarded as ineffective or even counterproductive, and have been complemented or partially superseded by private law approaches, by private regulatory initiatives and/or by self-regulation.

However, the recent financial crisis has subverted the trend. States have reasserted enormous powers over the market and its actors. On one hand, the bailout of banks and financial institutions – considered “too big to fail” – has paved the way to the reintroduction of public tools to regulate and shape the economy. Some of the crucial developments concern specifically the financial sector, which is increasingly subject to regulatory scrutiny and expanded controls. . Are these tools comparable to techniques used earlier? Though designed for temporary purposes, are they destined to endure and live through the crisis, as happened after the Great Depression? What similarities are there between problems and remedies in earlier crises in different economies, including the general economic crisis which began in 1929, and the current epoch?

The crisis has also shown the limits of a State-centered regulatory model, inducing the national authorities to intensify their cooperation. At the same time, it has tested the ability of Bretton Woods institutions and other international and supranational consultative or regulatory regimes to deal with the crisis as such or to deal with measures taken by states to limit damage to domestic production and employment. At the global level, as in Europe and other regions, initiatives have been launched to reform the financial institutional setting and expand the reach of their powers. Just to mention one example, the Financial Stability Forum has been institutionalized as Financial Stability Group, in order to fill an evident gap in global regulatory governance. How successful will this and similar attempts be? Is it possible to “redeem” the financial sector from its “vices”? Is the lack of rules the real problem? And is the regulatory system ready to take a sustained statist turn?

The 6th Viterbo Gal Conference will provide the opportunity to present advanced research projects on the financial crisis and on global regulatory measures to deal with it, including states’ domestic policy responses.. A global administrative law approach will provide the main analytical tools: accordingly, the papers should focus on the structure of the global and regional regulatory governance relating to finance, trade (including questions of state aids) and related aspects of the crisis; on the powers thereby exercised; on their effectiveness and accountability, or on critical or conceptual perspectives on these issues. Given the complexity of the subject, an interdisciplinary exchange will be favoured. Papers may, thus, also address the topic by adopting an historical, economic and/or international relations approach, and/or a legal approach. Historical approaches could include an analysis of responses to past global economic and financial crises.

The papers that have been selected are as follows (I was on the selection panel this year, and these were among the best of a very good bunch of promising abstracts; we would gladly have taken more had financial and organisational constraints not dictated otherwise):

“Towards an Institutional and Legal Governance Structure in a Globalizing Securities Market”, Susan Yin (Ph.D. candidate at the Centre for Commercial Law Studies, Queen Mary University of London).

“Global Financial Standards and Regulatory Failure”, Maurizia De Bellis (Lecturer, University of Roma “Tor Vergata”)

“Credit Rating Agencies: Do We Need Draconian Oversight? A Critical Assesment of Current Reforms Initiatives”, Elisabetta Cervone (Ph.D in Banking and Financial Law at the University of Siena).

“Global risk management for transnational markets: developing an effective regulatory system for financial services”, Markus Glaser (Post-doctoral research fellow, Sciences Po Paris, Chair «Mutations de l’Action Publique et du Droit Public»)

“Towards a new Bretton Woods system or institutional fragmentation?”, Nikolaos Lavranos (Assistant Professor European Law and Senior Researcher International Law, University of Amsterdam).

“The Finance Good Shepherd: How legal intervention will serve the quest for global financial stability as a public good”, Chiara Orlandini (Graduate Institute of International Studies, Geneve).

“Protection of Investors in Financial Crises: Lessons of 1929 and 1930”, Martins Paparinskis (Hauser Research Scholar, New York University).

“Accountability of China's Financial Governance: Moving Forward or Backward”, Miao Xinhao (Assistant Professor of International Law School of Southwest University of Political Science and Law, Xiamen University).

“The impact of the financial crisis on institutional transformation”, Myriam Senn (Swiss Federal Banking Commission).

“Banking Regulation in Mexico: Lessons from Financial Crises”, Karen B. Sigmond (PhD. Directora de Programa Tecnólógico de Monterrey, Campus Cd. de México).

It is unlikely - though not impossible - that I will be able to make it this year; something that I very much regret, as it is always an extremely worthwhile event with a sense of continuing community that is second to none.

The Blog Is (Not Quite) Dead - Long Live the Blog!

OK, so last year's resolution did not work out as anticipated; certainly, a five-monthy hiatus was not how I intended the second half of 2009 to go on here. Indeed, I had thought that a period of being "between institutions" (my current favourite euphemism for my nine-months or so of unemployment) would enable me to dedicate more time to the blog. Still not entirely sure why things didn't work out that way...
Things have changed a little, however: alert readers (if indeed there are any readers left) will observe that my email address has changed, a product of my recent move to take up a position lecturing at the University of Sydney. It's a fantastic city and a fantastic institution, and I'm absolutely delighted to be here; I will, of course, begin preaching from the Book of GAL just as soon as I get settled.
I'm also going to try to shake things up a little on here, in particular by getting more contributions from guest authors (you know who you are!), whether on an ad-hoc or more regular basis. Where we do have more detailed guest posts, I will also try to encourage discussion of the points raised, wherever possible.
Anyway, a belated "all the best" for 2010 to whoever is still reading!