Tuesday, 12 October 2010

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

Global Administrative Law

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...

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