Judgment No. 3003
Decision
1. The application by IFAD "for the suspension of the execution of Judgment 2867" is dismissed.
2. The Fund shall pay the defendant costs in the amount of 4,000 euros.
3. Her other claims are dismissed.
Consideration 15
Extract:
"[A]s the Tribunal pointed out in [...] Judgment 82, under 7, the execution of a judgment by an organisation cannot under any circumstances be considered as acceptance of the judgment, nor divest it of its right to submit the judgment to the International Court of Justice for an advisory opinion [under Article XII, paragraph 1, of the Statute of the Tribunal]."
Reference(s)
ILOAT reference: Article XII, paragraph 1, of the Statute
ILOAT Judgment(s): 82
Keywords
icj; organisation; right of appeal; judgment of the tribunal; execution of judgment; iloat statute; interpretation; consultation; acceptance; consequence; effect; advisory opinion of icj
Consideration 30
Extract:
"To accept that an organisation can be released, through the grant of a stay of execution, from the obligation to execute a judgment unfavourable to itself, on the grounds that it has challenged the validity of the judgment under Article XII of the Statute [of the Tribunal], would not only constitute a major exception to the application of [the] case law but would also, above all, seriously impair the legitimate right of the staff member concerned to benefit from immediate application of the judgment."
Reference(s)
ILOAT reference: Article XII of the Statute
Keywords
grounds; complainant; right of appeal; exception; judgment of the tribunal; execution of judgment; case law; organisation's duties; iloat statute; breach; enforcement; right; suspension of the execution of a judgment
Consideration 32
Extract:
"[T]he Tribunal may at any time decide, when it renders a judgment, to defer the execution thereof if it considers such a measure justified (see Judgment 82 [...], under 5). It is therefore for the organisation concerned, if it seeks to have the execution of a judgment deferred in the event that it proves unfavourable to itself, to submit a subsidiary claim for that purpose. If the Tribunal did not order such a deferral in its decision, it must be deemed to have implicitly required the decision to be executed immediately, in conformity with the general rule, and it is therefore scarcely conceivable that an organisation could be allowed to request a stay of execution of the judgment at a later stage."
Reference(s)
ILOAT Judgment(s): 82
Keywords
claim; implied decision; judgment of the tribunal; execution of judgment; counterclaim; organisation's duties; date
Considerations 40 and 46
Extract:
Article XII, paragraph 1, of the Statute of the Tribunal, in the version applicable to the international organisations which have accepted the jurisdiction of the Tribunal, provides that: "In any case in which the Executive Board of an international organization which has made the declaration specified in Article II, paragraph 5, of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice."
"[I]t must be emphasised that the question of whether international organisations should be allowed to request a stay of execution of a judgment that they intend to challenge under Article XII of the Statute arises in the context of a procedure which is already fundamentally imbalanced to the detriment of staff members. [T]he option of submitting a request to the Court for an opinion on the basis of that article is confined to the organisations. [...]
Clearly, it is not for the Tribunal to express a critical opinion on a provision of its own Statute. However, it does have to take care, given that this particular provision creates an objective inequality between the parties, to ensure that its own case law does not in any way amplify the consequences of this inequality, which would undeniably occur if requests for a stay of execution submitted by organisations availing themselves of the Article XII procedure were to be considered admissible. To adopt that course would cause serious harm to the legitimate interests of the officials concerned, thereby upsetting the balance between the rights of the organisations and those of their staff members which it is the Tribunal's role to preserve."
Reference(s)
ILOAT reference: Article XII, paragraph 1, of the Statute; Article II, paragraph 5, of the Statute
Keywords
icj; competence of tribunal; execution of judgment; declaration of recognition; iloat statute; advisory opinion of icj
Considerations 25-40
Extract:
As for the fact that there is no provision in the Statute or Rules of the Tribunal stating that an application to the Court under Article XII will automatically have a suspensory effect on the impugned judgment, this does not, in itself, preclude the possibility of requesting the Tribunal to order a stay of execution of the judgment.
In Judgment 82, [...] the Tribunal recalled, under 5, that “[i]n accordance with a well-established and generally recognised principle of law, any judgment compelling one party to pay to the other party a sum of money implies, in itself, the obligation to pay that sum without delay”, and that “[i]t could be otherwise only in the event that the judgment expressly mentioned that this sum would be payable only at a later date and where the statutes of the court concerned make provision for the right to appeal against the judgments delivered by it and formally state that exercise of that right of appeal carries suspensory effect on execution of those judgments”. Referring to the provisions of Article VI, paragraph 1, of the Statute, according to which its judgments are final and without appeal, the Tribunal added, under 6, that “while, in fact, [the organisation concerned], by virtue of Article XII of the aforementioned Statute, has the option of asking the International Court of Justice for an opinion, which is binding, on the validity of judgments delivered by the Tribunal, this option, which can moreover be used without any restriction as to time, does not affect, in the absence of any explicit provisions in [...] Article XII, the immediately operative character of those judgments”.
Whilst this makes it clear that the submission of a request for an opinion to the Court will not automatically stay the effects of the contested decision, the above-cited statement in Judgment 82 does not necessarily imply that it is impossible for the Tribunal to order a stay of execution of the decision at the request of the organisation concerned. Moreover, in consideration 8 of the same judgment, the Tribunal expressly left open that question by stating that it was sufficient to note that in the case before it the organisation had not made any request for it to order a stay of execution in respect of the payment ordered against it. Judgment 1620, by which the Tribunal subsequently confirmed, in consideration 7, the principles established by Judgment 82, likewise did not decide this issue.
Lastly, the fact that none of the applicable provisions expressly provides that, at the request of an organisation, the Tribunal can order such a stay of execution is not conclusive either. Like any judicial body, and in accordance with the combined provisions of Article X of its Statute and Article 16 of its Rules, the Tribunal possesses general powers, inherent in its role, for taking such steps within its area of competence as it deems to be essential to ensure the proper administration of justice. It should also be noted that it is by virtue of the general powers thus conferred upon it that the Tribunal has previously recognised the possibility of submitting an application for review (see Judgment 442, which defined the theoretical basis for such an application), for interpretation (see, for example, Judgments 802 and 2483), or, of course, for execution (see, in particular, Judgment 649, under 5, and the aforementioned Judgment 1328, under 9 and 10), even though the possibility of submitting such applications is not expressly provided for in its Statute or Rules. The Tribunal has taken the view that its judicial role necessarily required it to entertain such applications in order fully to dispose of the cases brought to it.
The foregoing observations, while removing some of the objections of principle which might be raised to the submission of an application to stay the execution of a judgment being challenged before the Court, do not however imply that the possibility of an application of this kind is admitted. There are three sets of considerations that lead the Tribunal to exclude such a possibility.
Firstly, it should be pointed out that if, by recognising the admissibility of such an application, the Tribunal were to derogate from the principle that its judgments are immediately operative, it would undermine one of the cornerstones of its case law. The firm legal foundations of this principle have been evoked in consideration 12 [...], and for the staff of international organisations it represents a fundamental guarantee of the effectiveness of the justice dispensed by the Tribunal. That is why the Tribunal has always reaffirmed it with considerable emphasis in its decisions (in addition to the above-cited Judgments 1328 and 1620, see for example Judgment 1887, under 8). It has, in particular, made clear that internal debates within an organisation about the consequences of a judgment of the 12 Tribunal are irrelevant to its obligation to execute the judgment faithfully and promptly (see Judgment 2327, under 7), the only instance in which a judgment is capable of not being executed as ruled being that in which execution proves to be impossible owing to facts of which the Tribunal was unaware when adopting the judgment (see Judgment 2889, under 6 and 7). To accept that an organisation can be released, through the grant of a stay of execution, from the obligation to execute a judgment unfavourable to itself, on the grounds that it has challenged the validity of the judgment under Article XII of the Statute, would not only constitute a major exception to the application of this case law but would also, above all, seriously impair the legitimate right of the staff member concerned to benefit from immediate application of the judgment.
The Tribunal must point out that the “application for suspension of execution” which the organisation seeks to submit to it is fundamentally distinct, in this respect, from the other kinds of application which it has found to be admissible, in the absence of express provisions, on the basis of the general powers inherent in its judicial role. Whereas applications for review, for interpretation or for execution are, as explained [...], essentially intended to bring the Tribunal to complete the disposal of a case on which it has already adjudicated, this is by no means true of a request for a temporary stay of execution of one of its decisions, which stems from a different concern. Moreover, whereas an application for review responds to the specific necessity of enabling correction of a judgment rendered per incuriam, an application for execution, which serves to compel an organisation to act upon a previous judgment, and an application for interpretation, which seeks to dispel any uncertainty or ambiguity affecting the judgment for the very purpose of enabling the organisation to act upon it, both tend to bring about execution of the judicial decision in question. The possibility of such applications is therefore perfectly consistent with the case law cited [...], according to which organisations have a duty to apply the Tribunal’s judgments as speedily as possible. By contrast, the submission of a request for a stay of execution of a judgment is by definition a step in the opposite direction to the aim pursued both by these other kinds of application and by the said case law, and it is therefore all the more difficult, in the absence of any textual provision, to conceive of the possibility that such an application might be admissible.
It should also be pointed out that, as IFAD itself states in its written submissions, the Tribunal may at any time decide, when it renders a judgment, to defer the execution thereof if it considers such a measure justified (see Judgment 82 [...], under 5). It is therefore for the organisation concerned, if it seeks to have the execution of a judgment deferred in the event that it proves unfavourable to itself, to submit a subsidiary claim for that purpose. If the Tribunal did not order such a deferral in its decision, it must be deemed to have implicitly required the decision to be executed immediately, in conformity with the general rule, and it is therefore scarcely conceivable that an organisation could be allowed to request a stay of execution of the judgment at a later stage. Indeed, the true purpose of such a request would be not only to enable the organisation to escape the obligation to execute the judgment without delay, but also to have the Tribunal judge the case afresh on this point, which would deny the immediately operative nature of its decisions as well as the principle that a court which has already ruled on a case has exhausted its jurisdiction.
The second obstacle to the admissibility of a request made in these circumstances for a stay of execution of a judgment, which is not unrelated to the latter consideration, has to do with the legal anomaly which would occur if the Tribunal itself were to rule on such a request. In a national legal system, unless the question of the suspensory effect of an appeal is settled by the applicable texts or by the terms of the judgment itself, it is normally the court handling the appeal against the judgment in question which is competent to decide on a request for a stay of execution of the judgment, not the court which rendered the judgment. This is also the case in the new system of administration of justice in the United Nations, introduced on 1 July 2009. It is the United Nations Appeals Tribunal which has to decide on any request for a stay of execution of a judgment issued at first instance by the United Nations Dispute Tribunal, not the Dispute Tribunal itself. Indeed, Article 9, paragraph 4, of the Statute of the Appeals Tribunal confers jurisdiction on it to “order an interim measure to provide temporary relief to either party to prevent irreparable harm and to maintain consistency with the judgement of the Dispute Tribunal”.
It must be conceded that the possibility of seeking a stay of execution of a judgment, which can readily be provided for in a twotier court system, would raise considerable difficulties if it were allowed by this Tribunal, which does not form part of such a system and which would therefore have to decide itself on applications submitted for this purpose. Quite apart from the fact already mentioned, that the Tribunal would then have to decide afresh a matter which it may be deemed to have considered already when issuing its initial judgment, there would be two key problems in such a procedural arrangement.
The first concerns the fact that, since a staff member in whose favour a judgment has been rendered by the Tribunal normally has the right to its immediate execution, it would be difficult to conceive of the execution being stayed without there being any prior verification to ensure that a challenge raised by the organisation against the judgment in question has at least some chance of succeeding. It therefore seems essential for there to be at least some scrutiny, however rudimentary, of the relevance of the arguments raised in support of the request to the Court for an opinion. For similar reasons, in many national legal systems, one of the criteria for granting a stay of execution of a court decision against which an appeal has been filed is, precisely, the seriousness of the arguments raised against the decision. But whereas their seriousness is normally probed by the higher-tier court handling the appeal against the judgment concerned, no such mechanism could, by definition, be applied here. For obvious reasons, the Tribunal could not give any appraisal of the correctness or soundness of its own judgments. It follows that the criterion based on the requirement that the arguments invoked by the organisation against the impugned judgment should show at least a degree of relevance cannot be contemplated here.
This gap in the judicial mechanism would be all the more problematic for the fact that requests for advisory opinions submitted to the Court on the basis of Article XII are not subjected to any prior selection procedure to ascertain that they are based on serious arguments. In this connection, it should be pointed out that the mechanism provided for in Article XII differs from the one defined in the former Article 11 of the Statute of the United Nations Administrative Tribunal, which also provided for the possibility of submitting to the International Court of Justice a request for an advisory opinion on the validity of the judgments rendered by that Tribunal. This Article 11, in force from 1955 to 1996, established a “Committee on Applications for Review of Administrative Tribunal Judgements”, which had to ensure that the requests submitted had a “substantial basis” before the Court itself could entertain the case. Admittedly, under Article XII of the Annex to the Statute of the present Administrative Tribunal, the possibility of submitting to the Court a request for an advisory opinion is limited to cases in which the Executive Board of the organisation concerned considers that the Tribunal was wrong in confirming its jurisdiction, or that its decision is vitiated by a fundamental fault in the procedure followed. But in the absence of any prior screening mechanism comparable to the one formerly provided by the Statute of the United Nations Administrative Tribunal, the restrictive nature of these criteria cannot offer any actual guarantee of the seriousness of requests for opinions submitted to the Court.
This conclusion is all the more inescapable because, if the possibility for organisations to seek a stay of execution of a judgment challenged through the Article XII procedure were recognised, they would in all likelihood be encouraged to make greater use of the procedure in future, and for the very purpose, in some extreme cases, of delay. Indeed, it is not inconceivable that the prospect of being temporarily released from the obligation to execute a Tribunal judgment immediately would prompt some organisations, especially where a large amount of compensation has been awarded to a complainant, to have recourse to the Court in order to be able to request a stay of execution of the judgment. Even if such a request were ultimately rejected by the Tribunal, the very fact of its submission would have the effect of enabling the organisation concerned to escape this obligation throughout the period in which the request is being examined, which as a rule lasts for several months. The risk of this procedure being abused cannot, in these circumstances, be wholly excluded.
Moreover, the fact that it would be impossible for the Tribunal to make the grant of a stay of execution conditional upon verification of the seriousness of the arguments deployed against the impugned judgment would have the consequence that the only yardstick that could be used in deciding whether to grant such a stay would undoubtedly be the difficulty of undoing the consequences of executing the judgment, i.e. in most cases, the risk of outright loss of a sum of money disbursed by the organisation concerned. In practice, this would be a very awkward criterion to apply in most cases. The other key problem mentioned above is that the Tribunal, which as stated earlier is competent, like most courts, to deal with applications for the execution of its own judgments, could be confronted at the same time, for the same judgment, with an application for that purpose from the staff member concerned and a request for a stay of execution from the organisation. The coexistence of mutually contradictory applications raises no particular problem where the grant of a stay of execution is a matter for a higher court, but in the scenario evoked here the Tribunal would be faced with a delicate balancing act in handling the two applications. In fact this hypothetical situation could well have occurred in the present case if the defendant, who would normally have been entitled to receive payment of the awards made in her favour as soon as she had supplied IFAD with the information required of her, had herself chosen to submit an application for execution against the organisation.
Thirdly, and this is a major obstacle as far as the Tribunal is concerned, it must be emphasised that the question of whether international organisations should be allowed to request a stay of execution of a judgment that they intend to challenge under Article XII of the Statute arises in the context of a procedure which is already fundamentally imbalanced to the detriment of staff members. As mentioned above, the option of submitting a request to the Court for an opinion on the basis of that article is confined to the organisations.
Referring to the provisions of Article VI, paragraph 1, of the Statute, according to which its judgments are final and without appeal, the Tribunal added, [in Judgment 82] under 6, that “while, in fact, [the organisation concerned], by virtue of Article XII of the aforementioned Statute, has the option of asking the International Court of Justice for an opinion, which is binding, on the validity of judgments delivered by the Tribunal, this option, which can moreover be used without any restriction as to time, does not affect, in the absence of any explicit provisions in the above-mentioned Article XII, the immediately operative character of those judgments”.
Reference(s)
ILOAT Judgment(s): 82, 442, 649, 802, 1328, 1620, 1887, 2327, 2483, 2889
Keywords
suspension of the execution of a judgment
Consideration 31
Extract:
[A]pplications for review, for interpretation or for execution are [...] essentially intended to bring the Tribunal to complete the disposal of a case on which it has already adjudicated [...]. [A]n application for interpretation [...] seeks to dispel any uncertainty or ambiguity affecting the judgment for the very purpose of enabling the organisation to act upon it [and] tend[s] to bring about execution of the judicial decision in question. The possibility of such [an] applicatio[n] is therefore perfectly consistent with the case law [...], according to which organisations have a duty to apply the Tribunal’s judgments as speedily as possible.
Keywords
application for interpretation
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