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Arbitration (103,-666)
You searched for:
Keywords: Arbitration
Total judgments found: 12
Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 2
Extract:
The Organization submits that the Tribunal does not have jurisdiction to hear the complaint because the complainant, who held external collaboration contracts for most of the period in question, was not an official of the Office.
This challenge to the Tribunal’s jurisdiction – which, in the form in which it is presented, relates to the substance of the dispute – is irrelevant in this case.
It is true that, under the Tribunal’s case law, where an external collaboration contract confers jurisdiction for settling disputes concerning its performance on another judicial authority or – as is more often the case – on an arbitral body, the Tribunal cannot hear such a dispute, even where it concerns precisely the redefinition of the contract in question as a contract appointing an official (see, in particular, Judgments 4652, considerations 16 to 20 and 22, and 2888, considerations 5 and 6).
However, plainly this case law does not apply when that contract grants jurisdiction to the Tribunal to hear disputes relating to its performance, as permitted under Article II, paragraph 4, of the Tribunal’s Statute (see Judgments 4652, consideration 21, and 2888, consideration 7). In this case, the external collaboration contracts concluded by the ILO and the complainant all included a provision in paragraph 12 specifically conferring jurisdiction on the Tribunal to hear “[a]ny dispute arising out of [their] application or interpretation”. The Tribunal therefore has jurisdiction to rule on any dispute relating to their possible redefinition.
Reference(s)
ILOAT Judgment(s): 2888, 4652
Keywords:
arbitration; competence; external collaborator; non official; ratione personae;
Judgment 4652
136th Session, 2023
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to pay him compensation equal to the difference between his remuneration as a consultant and the value of the salary and benefits received by staff members performing similar functions.
Considerations 8, 11-21
Extract:
The Tribunal is aware that in many States there is an ongoing debate as to whether the existence of an employment relationship can or should be recognised in certain situations where, although such a relationship is not expressly provided for in the contract, other factors support a conclusion that the person concerned is, in fact, an employee and must be treated as such.
[…]
The Tribunal’s jurisdiction is established and defined by its Statute. It is bound to exercise the jurisdiction so conferred. Centrally, it is to hear complaints of officials having regard to the terms of Article II. Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal’s jurisdiction does not therefore extend to complaints filed by individuals who do not have the status of an official in the defendant organisations (see Judgment 3049, consideration 4).
Although the determination of that status does not depend exclusively on the wording of the contract or the staff regulations and the Tribunal may need to rely on other documents (see, for example, Judgment 3359, consideration 13), in the present case each contract contains a very clear definition of the relationship between the parties.
In Clause G-19 it is clearly indicated that the contract “creates an independent contractor relationship” and that nothing contained in it “shall be construed as establishing or creating between the Fund and the Consultant a relationship of employer and employee [...]”. Although certain other clauses in these contracts are not incompatible with the existence of an employer-employee relationship, they cannot be construed as negating the clear indication in Clause G-19 as to the legal status of the complainant.
Whilst the complainant argues that offering the contracts to him as an “independent consultant” was an abuse of power, because they were offered in those terms for an ulterior purpose, namely, to disguise the true nature of the employer-employee relationship which was intended to be created, there is nothing in the file to suggest that the terms of the contracts did not reflect the parties’ true intentions.
There is no basis on which the complainant can claim that he should be retroactively assigned a different contractual status, given that he had freely signed both contracts (see, for example, Judgments 2734, consideration 1, 2415, consideration 4, and 2308, consideration 17).
Moreover, it is noteworthy that Clause G-21 provides specifically that any dispute not resolved amicably shall be finally settled by arbitration. The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains such an arbitration clause (see Judgment 2888, consideration 5, and the case law cited therein).
In Judgment 2888, consideration 6, the Tribunal further explained that […]
These considerations apply, in the same way, to the present case.
The existence of an arbitration clause in some contracts has been treated by the Tribunal as evidencing an agreement to exclude the jurisdiction of the Tribunal (see Judgments 3705, consideration 4, 2688, consideration 5, 2017, consideration 2a, and 1938, consideration 4).
It is obvious that the inclusion of an arbitration clause in the contract of an official would be contrary to the Statute of the Tribunal and the basis on which organisations recognize the Tribunal’s jurisdiction. Indeed, if a person is or was an official of an organisation which has recognized the Tribunal’s jurisdiction, that person has a right to commence and maintain proceedings alleging non-observance of the terms of appointment or of the staff regulations and can do so notwithstanding the existence of an arbitration clause in a contract between that person and the organisation concerned.
The inclusion of an arbitration clause in the contract of a non-official is not unlawful in itself. In this case, as noted above, the arbitration clause specifically provides for arbitration by a single arbitrator in the Republic of Korea.
The Tribunal notes that there appears to be no time limit in the contract for the submission of the dispute to arbitration and the complainant may, if he so wishes, advance all his arguments before the arbitrator.
The Tribunal would be competent to hear disputes concerning the execution of a contract of a non-official where the contract itself provides for the Tribunal’s competence, as provided for by Article II, paragraph 4, of its Statute (see Judgments 967 and 803).
Reference(s)
ILOAT Judgment(s): 803, 967, 1938, 2017, 2308, 2415, 2688, 2734, 2888, 3049, 3359, 3705
Keywords:
arbitration; competence; non official; ratione personae;
Judgment 4646
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was employed under a series of Special Service Agreements, submits that she was requested without a valid reason to stop working immediately and that WHO did not grant her request for conciliation and amicable settlement.
Consideration 5
Extract:
The Tribunal notes, as it did in Judgment 3551, that clause 15 of the SSA provides for arbitration if necessary, and that there is no time limit provided for in relation to the submission of the dispute to arbitration.
Reference(s)
ILOAT Judgment(s): 3551
Keywords:
arbitration; special service agreement;
Judgment 2888
108th Session, 2010
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains [...] an arbitration clause (see Judgments 2017, under 2(a), and 2688, under 5)."
Reference(s)
ILOAT Judgment(s): 2017, 2688
Keywords:
arbitration; competence of tribunal; contract; definition; external collaborator; ratione personae; settlement out of court;
Judgment 2657
103rd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post but the Tribunal considers that persons who have applied for a post in an international organisation and who have not been recruited are barred from access to the Tribunal. The complainant asks that the Organisation be ordered to waive its immunity to enable him to bring proceedings before a German court. "[T]he Tribunal [recalls that it] has no authority to order the EPO to waive its immunity (see Judgment 933, under 6). It notes, however, that the present judgment creates a legal vacuum and considers it highly desirable that the Organisation should seek a solution affording the complainant access to a court, either by waiving its immunity or by submitting the dispute to arbitration."
Reference(s)
ILOAT Judgment(s): 933
Keywords:
appointment; arbitration; candidate; claim; competence of tribunal; condition; grounds; handicapped person; judgment of the tribunal; medical examination; medical fitness; municipal court; open competition; organisation; post; refusal; safeguard; waiver of immunity;
Judgment 2017
90th Session, 2001
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2(A)
Extract:
"The complainant enjoyed the status of official from October 1974 to the end of December 1992. From 1 January 1993 to 31 December 1994 he was employed on the basis of special agreements, which contained an arbitration clause providing for an "arbitral panel" composed of three members. The Tribunal's jurisdiction is therefore limited to the effects of the relationship between the [organisation] and the complainant from October 1974 to the end of December 1992."
Keywords:
arbitration; competence of tribunal; contract; date; external collaborator; limits; ratione personae; status of complainant;
Judgment 1938
88th Session, 2000
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The fact that the [Organization] did not itself invoke [the] arbitration clause during the internal appeals procedure does not prejudice the fact that the two parties freely accepted recourse to arbitration to settle disputes arising out of the application of contractual service agreements, thereby perforce excluding them from the Tribunal's jurisdiction."
Keywords:
arbitration; competence of tribunal; internal appeal; settlement out of court;
Judgment 1773
85th Session, 1998
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 5-6
Extract:
"The [Organization] argues that the Tribunal is not competent to hear [the complaints]. In its submission [the] contract of employment [signed by the complainant] does not vest competence in the Tribunal but expressly provides for arbitration over any dispute. In the circumstances of the case the plea cannot succeed. The [Organization refused the complainant's] request for arbitration. Although there was no express provision vesting competence in the Tribunal to hear the dispute between the Organization and the complainant, it employed him, paid his salary and terminated his appointment. There is therefore no denying the Tribunal's competence by virtue of the general terms of Article II of its Statute. Such denial would mean either that no court at all had jurisdiction or that the case must go to the [national] courts, to whose jurisdiction the [Organization] declines to submit."
Reference(s)
ILOAT reference: ARTICLE II OF THE STATUTE
Keywords:
arbitration; competence of tribunal; contract; declaration of recognition; iloat statute; municipal court; right of appeal;
Judgment 77
13th Session, 1964
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"The disputes to which the contract held by [the complainant] may give rise do not, because of the particular nature of the said contract, fall within the competence of the Tribunal as defined by Article II of its Statute. The Tribunal is competent to hear this case only because [the complainant and the organization] have by mutual agreement requested it to arbitrate the dispute arising between them [...] and because the Tribunal has accepted to do so."
Reference(s)
ILOAT reference: ARTICLE II OF THE STATUTE
Keywords:
arbitration; competence of tribunal; contract;
Consideration 1
Extract:
The relationship between the complainant and the organization is contractual. The Tribunal is competent only because the dispute has been submitted to it for arbitration. "In order to carry out the Commission thus entrusted to it, the Tribunal must therefore base its decision on the clauses of the contract which constituted [the complainant's] sole tie with [the organization], adopt generally accepted rules of interpretation on the subject of contracts and, in particular, inquire into the mutual intentions of the parties at the time that the said contract was concluded."
Keywords:
arbitration; competence of tribunal; contract; enforcement; intention of parties; interpretation;
Judgment 75
12th Session, 1964
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
The relationship between the complainant and the organization is of a contractual nature. The Tribunal is not competent. "Moreover, the contract provides that any disputes between the parties shall be settled in accordance with arbitration proceedings to be instituted by the organization [...]. While the Tribunal itself determines its competence on the basis of its Statute and of the Staff Rules of the organization, it should, as a matter of equity, be pointed out that the complainant himself, having subscribed to the above provision, must have had, at the very least, doubts as to the competence of the Tribunal."
Keywords:
arbitration; competence of tribunal; contract;
Judgment 28
6th Session, 1957
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration (A)
Extract:
"The complainant wrongly alleges that english law is applicable as his national law, whereas the Tribunal is bound exclusively by the internal law of the organisation [...] as well as by general principles of law."
Keywords:
applicable law; arbitration; domestic law; enforcement; general principle; staff regulations and rules;
Judgment .15
Sessions of the Administrative Tribunal of the League of Nations, 1946
Nansen International Office for Refugees
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
arbitration; equity; interpretation; ratione materiae;
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