Annual Report of the Oas Administrative Tribunal

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OEA/Ser.G

CP/doc.3697/03

28 February 2003

Original: Spanish

ANNUAL REPORT OF THE OAS ADMINISTRATIVE TRIBUNAL

TO THE GENERAL ASSEMBLY

This document is being distributed to the permanent missions and
will be presented to the Permanent Council of the Organization.

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February 28, 2003

Excellency:

I have the honor to address Your Excellency to transmit the note of February 26, 2003, with which Mr. Reinaldo Rodríguez Gallad, Secretary of the OAS Administrative Tribunal, presents the annual report of the Tribunal for the period from March 2002 to February 2003.

Accept, Excellency, the renewed assurances of my highest consideration.

Luigi R. Einaudi

Assistant Secretary General

In charge of the General Secretariat

His Excellency

Víctor Hugo Godoy Morales

Permanent Representative of Guatemala

to the Organization of American States

Chair of the Permanent Council

Washington, D.C.

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Administrative Tribunal

February 26, 2003

TRIBAD/019/03

Excellency:

I have the honor to address Your Excellency and, on instructions from the President of the Administrative Tribunal of the Organization of American States pursuant to Article 54.f of the Charter of the Organization, to forward you a copy of the Annual Report of the Administrative Tribunal for the purposes contemplated in Article 91.f of the Charter and for presentation to the General Assembly at its thirty-third regular session. The report covers the activities of the Tribunal from February 2002 to January 2003.

Accept, Excellency, the assurances of my highest consideration.

Reinaldo Rodríguez Gallad

Secretary

Administrative Tribunal of the OAS

His Excellency

Ambassador Luigi R. Einaudi

Assistant Secretary General, in charge of the General Secretariat

of the Organization of American States

Washington, D.C.

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ORGANIZATION OF AMERICAN STATES

Administrative Tribunal

ANNUAL REPORT

(FEBRUARY 2002-JANUARY 2003)

GENERAL SECRETARIAT

ORGANIZATION OF AMERICAN STATES

WASHINGTON, D.C., 20006

C O N T E N T S

Page

I. BACKGROUND

1. Establishment of the Tribunal 1
2. Statute and Rules of Procedure 1
3. Election of the First Members of the Tribunal 2
4. Inauguration of the Tribunal 2
5. Jurisdiction of the Tribunal 2
6. General Principles 3

1. GENERAL INFORMATION

1. Composition of the Tribunal 3
2. Secretariat of the Tribunal 4
3. Re-election of a Member of the Tribunal 4
4. Election of a Member of the Tribunal 4

III. PROCEEDINGS

1. Fiftieth Regular Session 5

2. Composition of the Tribunal’s Panel for the Fifty-First and 8

Fifty-Second Regular Sessions

3. Request Submitted to the Secretariat of the Tribunal 8

4. Financial Situation 9

5. Publications 9

6. Tribunal Information on the Internet 10

7. Database 10

IV. COOPERATION AND COORDINATION WITH OTHER INTERNATIONAL ADMINISTRATIVE TRIBUNALS

1. Twentieth Anniversary of the Administrative Tribunal of 10

the Inter-American Development Bank (IDB)

2. Meeting of Secretaries of Administrative Tribunals of 11

International Organizations

V. CONCLUSIONS AND RECOMMENDATIONS 11

ATTACHMENTS:

I. Decision No. 343 13

II. Judgments 142, 143, 144, 145, and 146 13

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ANNUAL REPORT OF THE ADMINISTRATIVE TRIBUNAL

OF THE ORGANIZATION OF AMERICAN STATES

(february 2002 – january 2003)

I BACKGROUND

1. Establishment of the Tribunal

At its first regular session in San José, Costa Rica, the General Assembly of the Organization of American States approved resolution AG/RES. 35 (I-O/71)[1] during its ninth plenary meeting on April 22, 1971, providing the following:

1. To create the Administrative Tribunal of the Organization of American States.

1. To empower the Permanent Council of the Organization to adopt the pertinent statutes and constitute the aforesaid tribunal within sixty days from the closing date of the present session, bearing in mind the draft prepared by the General Secretariat and any proposals that may be presented by the governments of the member states.

2. Statute and Rules of Procedure

In compliance with the mandate conferred upon it in the preceding paragraph, the Permanent Council adopted the Statute of the Administrative Tribunal of the Organization of American States by resolution CP/RES. 48 (48/71) of July 16, 1971.

On September 16, 1971, the Permanent Council elected the first members of the Tribunal.

Later, on May 1, 1974, at its fourth regular session in Atlanta, Georgia, the General Assembly approved resolution AG/RES. 158 (IV-O/74),[2] which entrusted to the Administrative Tribunal the task of preparing a draft amendment of its Statute. The Administrative Tribunal discharged that duty preparing the draft, which was approved by the Permanent Council in resolution CP/RES. 142 (158/75).

In October 1979, at its ninth regular session in La Paz, Bolivia, the General Assembly approved resolution AG/RES. 414 (IX-O/79), which amended Article III, paragraph 3 of the Tribunal’s Statute. That paragraph confirmed that the length of the term of members of the Tribunal would be six years and stated that they could be re-elected only once.

Finally, in 1997, the General Assembly, meeting in Lima, Peru, approved the amendments to the Statute of the OAS Administrative Tribunal by resolution AG/RES.1526 (XXVII-O/97).

Similarly, the Rules of Procedure of the Administrative Tribunal were approved on October 24, 1975 by its members. They were amended on November 20, 2000 by resolution No. 340.

3. Election of the First Members of the Tribunal

As indicated under the preceding heading, pursuant to the first transitional provision of the Statute of the Administrative Tribunal,[3] the Permanent Council elected the first members of the Tribunal on September 16, 1971, and determined their respective terms by drawing lots, with the following results:

Principal members

• Mr. Juan Bautista Climent Beltrán (Mexico)
• Dr. Mozart Víctor Russomano (Brazil)
• Dr. Carlos Giambruno (Uruguay)

Alternates

• Dr. Carlos Alberto Pigretti (Argentina)
• Dr. John Luis Antonio Passalacqua (United States)
• Mr. Ronaldo Porta España (Guatemala)

4. Inauguration of the Tribunal

On January 24, 1972, in a formal ceremony chaired by the President of the Permanent Council and attended by the other Permanent Council members, the Secretary General, Assistant Secretary General, members of the Staff Committee, and other special guests, the Administrative Tribunal was inaugurated with all its members present.

5. Jurisdiction of the Tribunal

In accordance with its Statute, the Tribunal is competent to “hear those cases in which members of the staff of the General Secretariat of the Organization of American States allege nonobservance of the conditions established in their respective appointments or contracts or violation of the General Standards for the operation of the General Secretariat or other applicable provisions, including those concerning the Retirement and Pension Plan of the General Secretariat.”[4]

It bears noting that the Tribunal’s jurisdiction may be extended “to any inter-American specialized organization of the Organization of American States as defined in the Charter of the Organization, as well as to any interested American intergovernmental organization, in accordance with the terms established by a special agreement to be concluded for the purpose by the Secretary General with each such specialized organization or interested American intergovernmental organization.”[5]

On February 18, 1976 a special agreement was signed to extend the jurisdiction of the OAS Administrative Tribunal to the Inter-American Institute of Agricultural Sciences (IICA).

6. General Principles

The Administrative Tribunal of the OAS (TRIBAD) is a functionally independent organ governed by the following principles and other provisions of its Statute[6]:

1. As the supreme organ of the Organization of American States, the General Assembly has the final authority to determine the scope and meaning of its own resolutions as it applies them;

1. The Tribunal, like all other organs of the Organization, is subordinate to the General Assembly;

1. The function of the Tribunal is to adjudicate disputes between the Secretary General and the staff members of the General Secretariat arising out of the employment relationship;

1. Determining the general salary policy for the personnel of the General Secretariat is the exclusive responsibility of the General Assembly, and the General Assembly has not delegated that authority to any other organ;

1. For the adjudication of any disputes involving the personnel of the General Secretariat, the internal legislation of the Organization shall take precedence over general principles of labor law and the laws of any member State; and, within that internal legislation, the Charter is the instrument of the highest legal order, followed by the resolutions of the General Assembly, and then by the resolutions of the Permanent Council, and finally by the norms adopted by the other organs under the Charter - each acting within its respective sphere of competence;

1. Any decision of an organ subordinate to the General Assembly which violates the basic principles set out in the foregoing provisions is ultra vires and not binding on the Organization, the General Secretariat, its personnel, or the member states.

II GENERAL INFORMATION

1. Composition of the Tribunal

In accordance with Article III of its Statute, the Tribunal is composed of six members elected by the General Assembly to serve six-year terms, renewable once. This rotation enables the General Assembly to elect one member of the Tribunal each year.

The Tribunal currently comprises judges Rosa Montalvo Cabrera, (Peru), Lionel Alain Dupuis (Canada), Morton H. Sklar (United States), Franz Alvaro Vega Noya (Bolivia), Agustín Gordillo (Argentina), and Nicholas J.O. Liverpool (Dominica).

2. Secretariat of the Tribunal

Following the guidelines of Article 4 of the Rules of Procedure of the Administrative Tribunal, the Secretary General of the OAS appointed Dr. Reinaldo Rodríguez Gallad as Secretary of that organ starting January 1, 2003. The Secretary of the Tribunal also acts as the Principal Legal Officer in the Office of the Assistant Secretary for Legal Affairs of the OAS.

The Tribunal Secretariat also enjoys the services of Mrs. María Eugenia Zarzycki, Principal Secretary and career officer of the OAS.

3. Re-election of a Member of the Tribunal

At its thirty-second regular session in Bridgetown, Barbados, the General Assembly re-elected Dr. Nicholas J.O. Liverpool, of the Commonwealth of Dominica to the position of judge of the Administrative Tribunal. This new term will begin on January 1, 2003 and end on December 31, 2008.

The members of the Administrative Tribunal may be re-elected “but may serve no more than two consecutive terms in office.” In accordance with precedent, and with the consent of the government of the member country of which the judge is a national, the practice has been, by and large, to re-elect the judge whose first term has expired.

4. Election of a Member of the Tribunal

At the thirty-third regular session of the General Assembly to be held in Santiago de Chile, June 8-10, 2003, the new member of the OAS Administrative Tribunal will be elected upon expiration of the term of office of Judge Rosa Montalvo Cabrera. Judge Montalvo was elected at the twenty-seventh regular session held in Lima, Peru in June 1997.

For the election of a member of the Administrative Tribunal, the plenary of the thirty-third regular session of the General Assembly must take account of the guidelines set forth in Article III of the Statute of the Tribunal, which indicates that “each member must be a national of an OAS member state, but no two members may be nationals of the same member state. All members shall be experienced lawyers, law professors, or judges by profession and shall serve strictly in their personal capacity.”

Similarly, Article 1 of the Rules of Procedure of the Tribunal establish that “The following persons are ineligible to serve as members of the Tribunal: permanent representatives of the member states on the organs, agencies, or entities of the Organization; persons who serve permanently on those bodies in any capacity; staff members of the General Secretariat; and individuals who have reached the age of 65 before being nominated for election.”

It is also important to note that, in accordance with that article, the member elected by the thirty-third regular session of the General Assembly shall assume his/her duties on January 1, 2004 for a term of six years.

III PROCEEDINGS

1. Fiftieth Regular Session

The Administrative Tribunal held its 50th regular session October 21-30, 2002, with the following panel of members:

• Judge Nicholas J.O. Liverpool, President
• Judge Morton H. Sklar
• Judge Agustín Gordillo.

At the 50th regular session, the Tribunal reviewed a number of issues concerning regulations, budget, administration, its operation and the operation of its Secretariat, as well as the following complaints:

a. Complaint Nº 276 Jaume Sosa v. Secretary General.

The Complainant, Mrs. Virgina Jaume Sosa, filed her petition with the Tribunal seeking compensation for the damages she allegedly incurred owing to the failure to renew her contract after many years of service. The Complainant did not fulfill the requirement that administrative remedies must be exhausted in order for a claim to be admissible before the Tribunal, and sought an exception to this procedure from the Tribunal. Among other reasons, the Complainant argued that the said requirement applied only to staff working at OAS Headquarters and not those who, like her, worked in the field.

The Secretary General’s attorney petitioned the Tribunal to deny Mrs. Jaume Sosa’s request for an exception and to summarily dismiss the complaint. In subsequent submissions, the parties maintained their positions.

The President suspended all proceedings in the matter until the Tribunal could meet to decide the case.

The Tribunal emphasized that there were compelling reasons why the exhaustion of all administrative remedies is a requirement for admissibility in the cases it adjudicates. At the same time, the Tribunal acknowledged its obligation to ensure that petitioners with legitimate complaints are provided the opportunity to have their claims heard and resolved in an effective manner, and recognized its responsibility to the employees of the Organization to make sure that the dispute settlement process that precedes the lodging of a complaint are open and available to the parties.

After thoroughly reviewing the grounds for the case and its unusual circumstances, the Tribunal—without deciding on the merits of the matter—resolved not to admit the complaint submitted by the Complainant because she had failed to exhaust all administrative remedies first, and instructed the Secretary General to respond to the complaint through the regular administrative procedures called for in the General Standards and the Staff Rules, as if the petition filed by Mrs. Jaume Sosa were a hearing request filed properly and in a timely manner.

Judgment 142 in Complaint No. 276 is attached to this report.

1. Complaint No. 278 Meyer v. Secretary General and Complaint No. 279 Berly v. Secretary General.

Each of the Complainants lodged a complaint with this Tribunal requesting that their positions be audited by a job classification expert and that the results of the audit be confirmed as final and binding on both parties, provided that the auditor commits no errors. The Secretary General’s representative expressed agreement with the request. In compliance therewith, the President of the Tribunal made arrangements to select an expert in job classification to conduct the requested audit and to hold a hearing in which the expert would orally present the findings. On October 11, 2002, the Secretariat received the auditor's report and notified the parties thereof on the same day. On October 22, 2002, a hearing was held with the parties and the auditor, as arranged by the President of the Tribunal.

Based on the analysis, the Tribunal concluded that there was no clear and convincing evidence of corruption, misconduct, or material error and that, consequently, there was no reason for the Tribunal to reject the expert’s opinion.

That notwithstanding, the Tribunal stressed its concern that future audits reflect the comparative analysis, which the expert was unable to perform, of the Complainant’s position with other similar positions occupied by other persons in the same organization or with similar positions in other international organizations that could be used as comparators. In that regard, the Tribunal stated that in future it would try to ensure that there was at least a minimal effort at comparison so as to make the expert’s opinion clearer to the Complainant and the judges in the case. During the hearing held for presentation, analysis, and discussion of the report, the auditor also admitted the importance and seriousness of the problem.

In its decision, the Administrative Tribunal called upon the General Secretariat and the auditors involved in job classification to use this tool in future, even if the comparison is unsophisticated, so that classification decisions are not made without the benefit of this comparative information on practices in the Organization.

The Tribunal declared that its judgment in the complaint was the product of complex process because it required not only the auditor’s input but confirmation of that input by the Tribunal. The audit process is independent but incomplete as it is not enforceable unless confirmed, for which purpose it is conducted along with the Tribunal’s activities and under its supervision.

Judgment No. 143 in complaint No. 278 and Judgment No. 144 in Complaint No. 279 are attached.

c. Complaint 277 Wyllie v. Secretary General

The Complainant moved to have the Tribunal bar the representative of the Secretary General from acting as the Secretary General’s attorney on grounds that the said attorney was also a witness before the Tribunal in the same case.

The Tribunal considered that the matter was one of the highest procedural importance and that it involved, among other issues, whether it was appropriate for the primary legal representative of one of the parties to be called as a witness in the proceeding where he played a major role, and how this affected his testimony or his ability to serve as counsel in the proceedings. It was also important for the Tribunal to examine the scope of attorney-client privilege.

The Tribunal determined that to disqualify the General Secretariat’s representative from acting as representative advocate for the Secretary General would cause undue hardship for the client because the demand was not brought until the eve of the trial, at which time it was impossible for the Secretary General to be efficiently represented by another attorney. Among other considerations, the Tribunal took into account the general rules of the local bar and, in particular, the circumstances under which the Complainant raised the issue, whereby both parties ought to have acted appropriately and in a timely manner to avoid the conflict but neglected to do so until the last moment.

Judgment No. 145 in Complaint No. 277 is attached.

d. Complaint No. 277 Wyllie v. Secretary General