Memorandum on the Settlement of disputes to which international organizations are parties

The memorandum (elaborated by the United Nations Secretariat in the context of the study of the International Law Commission on the Settlement of disputes to which international organizations are parties) addresses the relevant practice of States and international organizations and collects the information received from States and international organizations to the questionaries provided by the Secretariat.

As to the question 1– What types of disputes/issues have you encountered? –  some States observed that the disputes/issues encountered with international organizations include the issue of jurisdictional immunity (Austria; Chile; Belgium; Switzerland, Morocco).

In particular, Chile stated that “the nature of the immunities of international organizations gives rise to the possibility of a third party’s right to access to justice being infringed, given that the most frequent application of these immunities is as a barrier or impediment to the exercise of judicial or adjudicatory jurisdiction, which could mean that local courts are the wrong forum to exercise such jurisdiction” (p. 10).

As to Question 2 – What methods of dispute settlement have been resorted to in cases of disputes with other international organizations, States or private parties? Please provide any relevant case law, or a representative sample thereof. If you cannot provide such information for confidentiality reasons, could you provide any such decisions or awards in redacted form, or a generic description/digest of such decisions? – Several States pointed out that headquarters agreements usually provide the obligation of international organizations to provide adequate modes of dispute settlement.

Austria also observed that recent headquarters agreements foresee some forms of  exceptions from immunity for disputes concerning motor vehicles operated by or on behalf of an international organization, allowing individuals to seize national courts in case of damages. Belgium affirmed that “disputes between international organizations and private individuals are often brought before Belgian courts and tribunals (…) With regard to labour relations between the organization and its agents, the Court of Cassation decided that an international organization’s immunity from jurisdiction may be set aside if the organization has not arranged a clean appeal procedure and the official is deprived of access to a court owing to the immunity from jurisdiction” (pp. 13 -14).  

Switzerland stated that “Applicants are generally referred back to the dispute settlement provisions put in place by the international organizations in accordance with their undertakings given to Switzerland in the conclusion of their respective headquarters agreements. If applicants attempt to initiate proceedings before Swiss courts or executive authorities (Federal Department of Foreign Affairs and/or Federal Council) against international organizations in disputes of a private law character, they are referred back to the dispute settlement system put in place by the international organizations flowing from the headquarters agreement concluded with Switzerland” (p. 18).

As to question 5 – From a historical perspective, have there been any changes or trends in the types of disputes arising, the numbers of such disputes and the modes of settlement used ? – Some States affirmed that the recent practice of their national judicial bodies provides cases of attempts to limit the immunity of international organizations (Austria; Belgium;  Chile; Jordan).

In particular, Chile affirmed that “the protection of human rights is fundamental to Chile, as reflected in the various judgments that have been issued upholding claims against international organizations. The right of access to court proceedings is not unlimited, and limits may be justified provided that immunity is accompanied by appropriate safeguards, such as the existence of alternative remedies that are accessible or available to the claimant ” (p. 25).

Jordan observed that “a foreign entity does not enjoy judicial immunity when it engages in a private activity or in contractual actions as a private person, regardless of whether or not such actions are of a commercial nature. Judicial immunity is not absolute; it is limited by the nature of the conduct of the foreign entity. This represents a development in jurisprudence. In addition, there is nothing that prevents international organizations from being parties to the mediation process or resorting to arbitration in private and contractual disputes in which they are a private person”(p. 26).

As to Question 11 – Have you developed a practice of agreeing ex post to third-party methods of dispute settlement (arbitration or adjudication) or waiving immunity in cases where disputes have already arisen and cannot be settled otherwise, e.g. because no treaty/contractual dispute settlement has been provided for? –  all the organizations pointed out that they have not developed a practice of waiving immunity.