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AG/RES. 1526 (XXVII-O/97)

AMENDMENTS TO THE STATUTE OF THE ADMINISTRATIVE TRIBUNAL

(Resolution adopted at the seventh plenary session, held on June 5, 1997)

THE GENERAL ASSEMBLY,

HAVING SEEN the report of the Permanent Council entitled "Proposed Draft Amendments to the Statute of the Administrative Tribunal" (AG/doc.3504/97); and

CONSIDERING:

That, through resolution AG/RES. 1318 (XXV-O/95), the General Assembly instructed the Permanent Council "to study the merits of including within the Statute of the Administrative Tribunal additional provisions for: (i) a second instance of review; (ii) the assessment of attorneys' fees and costs; (iii) the requirements of the posting of a bond or refundable filing fee to discourage frivolous actions; (iv) the implementation of alternative dispute resolution mechanisms, including conciliation; (v) the implementation of preliminary summary proceedings that will permit disposition of suits on procedural grounds to avoid the expense of trial on the substantive merits; and (vi) an increase in the number of judges or other measures to guarantee representation on each panel of judges from the common law tradition and the civil law tradition";

That the Permanent Council has completed the aforementioned study and has recommended to the General Assembly the corresponding amendments to the Statute of the Administrative Tribunal; and

That the amendments proposed by the Permanent Council shall (i) implement a limited instance of review of Tribunal decisions with regard to its jurisdiction and competence and proceedings under its Statute; (ii) provide guidelines and set limits on the award of attorneys' fees and costs; (iii) require any complainant who is not a staff member and whose claim has been found to be without merit by a Reconsideration Committee or other conciliation body to post a filing fee or a bond or provide any other similar security to the Tribunal as a prerequisite for filing a complaint; (iv) require the Tribunal to recognize the finality of all settlement agreements, agreements to arbitrate, and arbitration awards, and authorize the Tribunal to encourage dispute resolution through arbitration, mediation, and conciliation; and (v) establish a procedure for resolving prior motions to dismiss a complaint for lack of jurisdiction or failure to comply with admissibility requirements,

RESOLVES:

1. To adopt the amendments to the Statute of the Administrative Tribunal of the OAS set out in the appendix to this resolution.

2. To instruct the General Secretariat to publish the full Statute of the Administrative Tribunal as amended herein.

APPENDIX

 

AMENDMENTS TO THE STATUTE OF THE ADMINISTRATIVE TRIBUNAL

 

1. Article I shall be titled "Establishment and General Principles."

 

2. Article II shall be titled "Jurisdiction."

 

3. Article III shall be titled and amended to state as follows:

 

ARTICLE III

Election, Qualification, and Service of Members

1. The Tribunal shall be composed of six members elected by the General Assembly to serve for terms of six years, such terms to be staggered so that one new member is elected each year.

2. 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.

3. A member's term shall begin on the first day of January following the member's election. If a member resigns or otherwise separates from the Tribunal before the expiration of his term, a substitute member shall be elected by the General Assembly, or the Permanent Council if the General Assembly is not in session, to serve for the remainder of that member's term, but the substitute member shall not assume the seniority of the member being replaced.

4. A member may be reelected, but may serve no more than two consecutive terms in office. A member so reelected shall lose all the seniority accumulated in his prior term.

5. The Tribunal shall have a President and a Vice President. These offices shall be held successively for one year by each member of the Tribunal, beginning with the two members having the most and second most seniority, respectively.

6. The Tribunal shall meet in sessions in panels of three members.

a. Two panels shall be chosen by lot from amongst the six members. The most senior member of each panel shall act as the President of that panel.

b. After each panel has completed sitting in one session, the President of the Tribunal shall announce the names of the members chosen by lot to constitute the panels for the next two sessions. In the event one of those members resigns or is otherwise unable to serve, he will be replaced by another member of the Tribunal not already serving on the panel, that replacement member to be chosen by the President by lot.

c. The following persons are ineligible to serve as members of the Tribunal: permanent representatives of the governments on the organs, agencies, or entities of the Organization; persons who serve permanently on those bodies in any capacity; and staff members of the General Secretariat.

7. The composition of the Administrative Tribunal shall reflect the two major legal traditions of the Hemisphere — the common-law tradition and the civil-law tradition.

 

4. Article IV shall be titled "Frequency of Sessions."

 

5. Article V shall be titled "General Secretariat Support."

 

6. Article VI shall be titled "Admissibility of the Complaint." The following paragraph 7 shall be added to Article VI of the Statute:

7. Before admitting the complaint of a person who is not a staff member, the Tribunal shall require that person to submit a filing fee, a bond, or other legally enforceable security equivalent to one month's remuneration (salary and post adjustment) at the P-4, step 6 level on the "with dependent" salary scale for headquarters, unless the Secretary General has expressly waived the reconsideration requirement, or unless a Reconsideration Committee or other formal conciliatory organ constituted by the Secretary General to advise him on the matter has found by a majority vote of its members that the person's claims are meritorious, or unless the Secretariat has failed to respond to a request for a hearing and request for reconsideration presented by the complainant in accordance with the requirements under the Staff Rules and other dispositions of the General Secretariat. Nonetheless, if the person is a former staff member, the amount so required will be the lesser of the former staff member's last full monthly remuneration (salary and post adjustment) or one month's remuneration (salary and post adjustment) at the P-4, step 6 level on the "with dependent" salary scale for headquarters.

 

7. The following new article shall be added as Article VII, and the present Article VII shall become Article IX.

Article VII

Arbitration, Conciliation, Mediation, and Settlements

1. Except as otherwise stated below, the Tribunal shall recognize the finality of all settlement agreements, releases, and agreements to arbitrate, and agreements to seek conciliation or mediation, and may not reopen, review, or adjudicate the issues finally resolved by those agreements or procedures, absent the express consent of all parties thereto.

2. Notwithstanding the above, the Tribunal may vacate and remand an otherwise binding arbitration decision and award, in whole or in part, where a party proves by clear and convincing evidence that:

a. The arbitration award exceeds the maximum indemnities that may be imposed by the Tribunal under its Statute or the limit otherwise agreed to by the parties;

b. The award was procured through corruption or misconduct of the arbitrators;

c. The arbitrators failed to follow the material provisions of the rules of procedure, if any, agreed to by the parties, or otherwise exceeded their authority; and where the Tribunal decides not to vacate and/or remand the award, it shall confirm it.

3. Also notwithstanding paragraph 1 above, the Tribunal may, at the request of either party, correct an otherwise binding arbitration decision and award where it is clear that:

a. There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, property, or amount referred to in the award;

b. The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision on the issues submitted; and where the Tribunal decides not to correct the award, it shall confirm it.

4. In disputes over the classification level of a post, the President of the Tribunal, upon the request of the parties concerned, shall request an audit of the post in question from a qualified independent job classification expert selected by him and, absent clear and convincing evidence of corruption or misconduct on the part of the classification expert, the Tribunal shall confirm the results of the classification expert's audit as final and binding on the parties.

5. The Tribunal may recommend that the parties to a claim over which it otherwise has jurisdiction submit to binding or non-binding arbitration, conciliation, or mediation. If the parties accept that recommendation, the Tribunal shall suspend further proceedings before the Tribunal in that matter pending the conclusion of the arbitration, conciliation, or mediation process recommended. No statements made by a party in the binding or non-binding arbitration, conciliation, or mediation proceedings shall be admissible against a party in the proceedings before the Tribunal on the matter absent that party's written consent.

 

8. The following new article shall be added as Article VIII, and the present Article VIII shall become Article X.

 

Article VIII

Disposition of Preliminary Questions

1. Within twenty days after receiving the complaint, the respondent may submit a motion requesting that the Tribunal dismiss the entire complaint, or any part thereof, based on lack of jurisdiction under Articles I and II of the Tribunal's Statute, failure to satisfy the requirements of admissibility under Article VI of the Statute, or failure to make a claim upon which relief can be granted.

2. Upon receipt of that motion, the complainant shall have twenty days to file with the Tribunal a written response in opposition. The respondent may file a reply to the response in opposition within twenty days of his receipt of same.

3. Within thirty days of receiving the last of the pleadings to be submitted under paragraph 2 above, the members scheduled to constitute the panel at the next session shall consult by telephone or other expeditious means and, based on those consultations, shall issue an order either granting the motion in whole or in part, denying it, or suspending all further proceedings in the action until the Tribunal can meet in session to consider it. During those thirty days, the President of the panel may submit written interrogatories to the parties for clarification, and copies of the interrogatories and answers shall be served on all parties and the corresponding Tribunal members.

4. The filing of a motion to dismiss under paragraph 1 shall suspend the time for filing an Answer under the Tribunal's Rules of Procedure until the Tribunal rules on the motion.

5. Either party shall have the right to request that the Tribunal reconsider its decision to grant the motion to dismiss in whole or in part, or deny it, at the Tribunal's next session. The requesting party shall file the motion for reconsideration within twenty days of receiving the Tribunal's decision. The filing of the motion for reconsideration will suspend further proceedings in the action pending the Tribunal's decision in reconsideration.

6. For good cause shown, the President of the panel may extend the time limits for filing the pleadings and taking the decisions provided for under this Article.

7. Failure of the respondent to make a Motion to Dismiss under this Article shall not bar or otherwise preclude the respondent from challenging the admissibility of the Complaint, the Tribunal's jurisdiction, and the legal merits of the claim in the Answer.

8. The Tribunal shall establish other summary procedures within its Rules of Procedure for the disposition of evidentiary questions and other pretrial issues consistent with its authority under Article XIII of this Statute.

 

9. The present Article VII, which is now Article IX under these Amendments, should be entitled "Damages, Indemnities, and Liabilities," and a new paragraph 5 shall be added to that Article, which states:

5. The Tribunal may order the losing party to pay the prevailing party an indemnity for attorney's fees and costs incurred by the prevailing party when the losing party has brought a clearly frivolous claim or objection, did not have solid grounds for litigating, has been totally defeated, or has been proven to have acted with actual malice. The maximum amount that can be awarded for the total of attorneys' fees and costs so incurred by the prevailing parties or party shall not exceed the equivalent of one month's remuneration (salary and post adjustment) at the P-4, step 6 level on the "with dependent" salary scale for headquarters in a judgment involving up to ten complainants, and twice that amount in a judgment involving more than ten complainants. The Tribunal may require a party seeking attorneys' fees and costs to prove actual costs and fees incurred up to the above-corresponding maximum amount established under this Article.

 

10. Article VIII of the present Statute, which becomes Article X under these Amendments, shall be amended as follows:

a. The title of the Article shall be "Judgments."

b. Paragraph 2 shall be modified to state:

Except as provided in Articles XI and XII, judgments shall be final and without appeal.

c. The remainder of that Article shall remain unchanged.

 

11. Article IX of the present Statute, which becomes Article XI under these amendments, shall be titled "Correction of Clerical Errors and Revision Based on the Discovery of Previously Unknown Facts."

 

12. The following text shall be added as a new Article XII of the Statute:

Article XII

Review of Judgments

1. Judgments of the Tribunal may be reviewed by an ad hoc Administrative Tribunal Review Panel (Review Panel) only in instances where the Tribunal's judgment is alleged to be ultra vires because it exceeds the Tribunal's authority in relation to its jurisdiction, competence, or procedures under this Statute. The Review Panel shall not have competence to reexamine the merits of the underlying dispute.

2. A petition for review may be perfected by presenting it to the Chair of the Permanent Council. Each such petition shall set forth the legal and factual bases supporting the allegation that the Tribunal's decision in the first instance was ultra vires. That petition must be presented to the Chair of the Permanent Council within forty-five days of the appellant's receipt of the Tribunal's judgment.

3. Upon receipt of the petition, the Chair of the Permanent Council shall constitute a Review Panel. The Review Panel shall be composed of three members. One of the members of the Review Panel shall be chosen by lot from amongst those Tribunal members who did not in the first instance hear the case being reviewed. Two members shall be chosen ad hoc from amongst the members of other administrative tribunals of other international organizations whose tribunal secretariats have their headquarters in Washington, D.C. The two ad hoc members shall be selected by the Chair of the Permanent Council, in consultation with the duly appointed representatives of the Secretary General and of the opposing parties. The Chair of the Permanent Council shall designate one of the ad hoc members to serve as President of the Review Panel, and shall determine the compensation paid to members, in consultation with the Secretary General and subject to the availability of resources.

4. Simultaneous with petitioning for review, the appellant must notify the appellees directly or through their duly authorized representatives of the petition by sending them a copy of the petition. The appellees shall have forty-five days from the date of receipt of the petition to submit in writing any observations they may have on the petition. Those observations shall be submitted directly to the Review Panel, with a copy to the appellant. Upon receipt of these observations, the appellant shall have twenty days to file a written response with the Review Panel and the appellee. The Review Panel may, at its discretion, request additional submissions of the parties. Appeals shall be decided based upon the written submissions, and without oral argument before the Review Panel, except in extraordinary circumstances as the President of the Review Panel deems appropriate.

5. The Review Panel shall follow the principles of law and procedures set out in this Statute. With prior notice to the parties, and in order to facilitate an orderly review process, the President of the Review Panel may adopt additional ad hoc procedures based on generally accepted principles of due process and consistent with the rules of procedure adopted by the Inter-American Commercial Arbitration Commission.

6. For good cause shown, the President of the Review Panel may extend the time limits for filing the pleadings provided for under this article.

7. The decision of the Review Panel on the questions presented in the petition for review shall be binding on the Organization and all other parties, provided it is supported by a majority of the Review Panel's members. Otherwise, the Tribunal's original decision shall control.

8. Pending the conclusion of the review process, the obligation to make payment under the Tribunal's judgment shall be suspended; however, if the decision of the majority of the members of the Review Panel conclusively reaffirms the Tribunal's judgment, the appellant shall owe interest on the judgment amount beginning sixty days after the date of the original judgment at the average money-market rate for commercial banks in Washington, D.C., for the period running from the date interest begins to accrue until the date of payment.

9. The Review Panel may order the appellant to pay the appellee an indemnity for attorney's fees, the costs incurred by the appellee in defending the Tribunal's judgment, and the costs of constituting the Review Panel, when the appellant has brought a clearly frivolous appeal, did not have solid grounds for litigating, has been totally defeated, or has been proven to have acted with actual malice. The maximum amount that can be awarded for the total of attorney's fees and costs so incurred by the appellee shall not exceed the equivalent of six months' remuneration (salary and post adjustment) at the P-4, step 6 level on the "with dependent" salary scale for headquarters.

10. Before admitting the petition for review of a person who is not a staff member, the Chair of the Permanent Council shall require that person to submit a filing fee, a bond, or other legally enforceable security in the amount equivalent to six months' remuneration (salary and post adjustment) at the P-4, step 6 level on the "with dependent" salary scale for headquarters. This fee shall be held by the Secretary General in escrow pending the outcome of the review and the award by the Review Panel of any costs or attorney's fees against the appellant.

11. The General Secretariat shall provide secretariat services to the Review Panel through the Secretariat of the Administrative Tribunal. The estimated costs of those services shall be included in the proposed program-budget of the Administrative Tribunal, and monies paid by an appellant for the cost of those services pursuant to a Review Panel order shall be available to cover or reimburse the cost of those secretariat services.

 

13. Article X of the present Statute, which becomes Article XIII under these amendments, shall be titled "Rules of Procedure."

 

14. Article XI of the present Statute, which becomes Article XIV under these amendments, shall be titled "Amendments to the Statute."

 

15. The following text shall be added as a new Article XV of the Statute:

 

Article XV

Gender

The use of the masculine pronoun in this Statute shall be interpreted to connote either the masculine or feminine gender, as circumstances may require.

 

16. The Transitory Provisions set out in the current Statute shall be deleted.

 

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