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...

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.

Some brief reflections on Viterbo V

I am moving house (again) this week, having not long returned from my GAL European Tour (well, Viterbo and Edinburgh – I certainly can’t complain), and so do not have a huge amount of time. I wanted, however, to post some reflections on the two events, while they are still (relatively) fresh in my mind. I’ll begin with Viterbo in this post, and move on to the Edinburgh meeting in the next. I won’t go ionto huge detail, however; in the hope that someone will produce a report in the not-too-distant future.

First things first: it was, as always, a huge pleasure to be present at the Viterbo event. The organisers – led, as usual, by Professors Sabino Cassese, Giulio Vesperini and Doctor Martina Conticelli – by now have things down to a fine art form. A selection of photos from the conference is available here. I know of no other event that manages to establish and maintain such a sense of community amongst ist participants; nor, for that matter, that succeeds in attracting people back year after year, even if they are not formally participating. The obvious attractions of Italy in June only account for a small part of the reason for this. I certainly hope to attend next year; employer permitting, of course.

On to the papers themselves, which are available here: all were to some degree preliminary (some, of course, more than others); all, however, seemed to be very promising, touching on some important – and often understudied – themes, under the broad heading of “Legality Review in the Global Administrative Space”:

Review Bodies in Multilateral Environmental Agreements. Competences, Coherence, Coordination
Dionysia-Theodora Avgerinopoulou

Implications Of Transparency In The International Civil Aviation Organization’s Universal Safety Oversight Audit Programme
Jimena Blumenkron

Proactive Strategies in the Global Legality Review
Gianluca Sgueo

Deference in U.S. Domestic Courts and Implications for Legality Review
Catherine Sweetser

Beyond Multilateralism and Regionalism. Analysis of the Review Process of Global Trade Dispute Resolution
Blake C.Y. Wang

What Makes Networks Effective: Evidence from the SEC
David Zaring

As will be immediately clear from the titles of the pieces, all of the authors used a very broad understanding of what constitutes “legality review” in the so-called “global administrative space” (as an aside, this latter term, I confess, causes me some discomfort; although it was postulated by Kingsbury, Krisch and Stewart in the Project framing paper, I have yet to see much beyond postulation in support of its existence. To me it implies a much more unitary space than as yet exists). This is, to my mind at least, at once an indication of both the strength (in terms of its institutional and forms of activity coverage) and weakness (in terms of its frequent lack of hard legality) of the GAL framework more generally.

The papers, for the most part, do pretty much what they say on the tin: Dionysia Avgerinopoulou gives a useful, if basic, overview of the wealth of different review bodies established by international environmental treaties, and the different roles they play; Jimena Blumenkron has an in-depth analysis of the transparency rules relating to the production of Standards and Recommended Practices by the International Civil Aviation Organization; Gianluca Sgeuo asks the intriguing question of why an increasing number of global review bodies are insisting upon “proactive” (i.e. programmatic), rather than reactive, sanctions-based solutions to breaches of legality; Cathy Sweetser looks at how different doctrines of deference by courst to administrative decisions in US law might be applied in the context of global institutions, and what the effects of this might be; Blake Wang, who unfortunately couldn’t attend the meeting due to illness (thankfully, rumours of “swine flu” proved to be premature…), looks at relations between the WTO and regional FTAs, asking whether we might envuisage the creation of a Court of International Trade; and finally David Zaring, a long-time contributor to the GAL Project, in his paper looks to propose an answer to the important issue of why some regulatory networks “work” (in his terms, why some are able to produce standards or regulation with real applicability and “bite”) and why others fail to reach this standard.

If you can only read two, and have no specific interest in any of the particular organisations or regimes focused upon, then I would recommend the pieces by Zaring and Sgeuo (the English in the latter is a little clunky, but worth the effort. And the fact that it is clunky is largely my fault, as I didn’t have time to make good on a promise to edit it…). Both tackle relatively new issues within GAL, general in scope, and make a number of interesting propositions with regard to each; as yet, I’d say, more provocative than persuasive, but that’s very much the point of events such as these.

The rest of the Friday session was largely taken up with general and specific comments to the authors of the papers, and with their responses thereto. There were some interesting exchanges, but as I didn’t take particularly copious notes, we will have to wait for the (hopefully) forthcoming report to give a fuller account of these. Perhaps inevitably, a number of comments focused on the extent to which the subject-matter of the papers could be accurately characterised as “legality” review. One comment in particular that I wanted to flag, however, was that made by Mario Savino in his role as discussant of three of the papers: he went beyond challenging the “legal” nature of the reviews in question, and raised directly a broader, but related issue: how does global administrative law differ from global governance? Specifically, what is the “added value” of adopting a public law approach to these issues? Savino’s concern was that this particularly public law element was missing from many of the papers; my view is that it is missing from many of the articles and discussions of global administrative law more generally, and is perhaps more than any other factor responsible for the feeling – very widespread amongst many academics – that GAL is too lacking in focus, spread to thin, to be an analytically useful framework or tool.

The next and final session, which took place on the Saturday morning, was devoted to short talks by Professors Armin von Bogdandy, Richard Stewart and Eyal Benventisti, before discussion, led by Professor Sabino Cassese, moved on to the date and substance of next year’s event. As would be expected, all contributions here were thoughtful and provocative: none more so than the remarks by von Bogdandy, who spoke on “international courts in a discourse theoretical perspective”. In some ways, this can be seen as a continuation of the impressive Max Planck project on international public authorities that he led, and was successfully completed last year; as always with discourse theory, however, if it is to be at all persuasive the audience is required to have swallowed a fairly large chunk of Habermas prior to listening; those who have doubts about the Habermasian approach find those transferred to whoever relies upon it. More concretely, although I found myself in broad agreement with much of what Professor von Bogdandy had to say, and in particular on the “perils” of applying constitutionalist rhetoric to the global sphere, I felt that his talk overplaed the importance of democratic forms of legitimacy in global governance (that is, overplayed not just how important they are, but how important they can and should be). As I have argued elsewhere, democracy is in my view but one of many justifiable bases upon which legitimate global governance could rest; and, given the difficulty of making international institutions genuinely accountable to hundreds of different demoi simultaneously, the almost complete absence of any viable post-state demos (excluding perhaps the EU), and the certain absence of anything like a truly global demos, it is not now and nor should it be a particularly important one. (This is an argument that I developed at greater length in the paper that I gave at Edinburgh – I’m currently toying with the idea of putting it on SSRN, will link to it if I decide to).

Unusually, neither the date nor the topic for next year’s seminar was definitively fixed: sometime in mid-June (either the 11-12 or the 18-19) 2010 seems almost certain; potential topics cover a much wider range, so there isn’t a huge amount of point in speculating. I will post on this further when I hear that the decision has been taken.

Lastly, if I were to have any quibble at all with the manner in which this part of the conference was structured, it would be that there was perhaps slightly insufficient time devoted to the discussion of the individual papers: these were presented by the discussants in two back-to-back sessions, then there was a break, and then a general discussion on all six contributions. Only at the very end were the authors given a chance to respond, and this meant that formal opportunities for actually “conferring” were kept to a minimum (although this, of course, was largely compensated for by the informal opportunities that came with dinner and drinks afterwards). My own view is that perhaps another session could have been added; that discussion could have focused on each of the sets of three papers individually, and allowed for more back-and-forth between authors and audience. The conference itself – running from 3pm to 6.30 on Friday, and from 9.30am to 1pm on Saturday – was anything but overlong, and could perhaps have benefitted from an extra hour or two. Then again, perhaps it’s no bad thing to leave us wanting more…

In, then, not-quite-so-short-as-I-had-intended, it was, as anticipated, an extremely worthwhile event; I’m looking forward to reading future iterations of the papers as they develop over the coming months. If anyone wants to add to - or, indeed, correct - this account of the event, please feel free to leave a comment below!

Viterbo V papers up...

The 5th annual Global Administrative Law seminar will take place in Viterbo, as always, on Friday and Saturday of this week (11-12 June). I'm fortunate enough to be going this year - it always is a fantastic event, attended by a great mix of younger and more experienced scholars (many of whom continue the day's discussions in the less formal setting of one of the city's wine bars in the evening, showing an impressive commitment to what we might call the "bottoms-up" approach to GAL...). And, of course, mid-June is a not-entirely-unpleasant time to visit Italy...

This year's topic is "Legality Review in the Global Administrative Space", and most of the papers are already available here.

I will post up some reflections on this - and on the GAL event in Edinburgh that immediately follows it - upon my return from the latter.

EJIL:Talk! discussion on the role of courts in the international system

A quick post to flag a discussion coming next week over at EJIL:Talk! which will undoubtedly contain much of real interest from a GAL perspective:

Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the current anniversary issue of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law“ and Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”. Both are available here.

Professors Benvenisti and Downs in particular have written directly on GAL issues (see here for some of Benvenisti's solo work on the development of GAL in international institutions, and here and here for work by him and Downs together on fragmentation and on checks and balances in global governance respectively). Definitely worth both reading the articles in question, and keeping an eye on what is sure to be an interesting exchange at EJIL:Talk!.