Third Report on the settlement of disputes to which international organizations are parties – ILC Special Rapporteur Reinisch

The report provides an extensive analysis of the practice of settling disputes to which international organizations are parties, with a particular focus on disputes with private parties. The report affirms that such disputes may be settle through peaceful means of dispute resolution, including proceedings before national courts.

In this regard, it stresses that international organizations usually enjoy legal personality under domestic legal systems, and, consequently, they have legal standing before domestic courts. However, the report underlines that practice shows limited availability of national jurisdictions as a result of the jurisdictional immunity granted to international organizations. It observes that “while it is clearly envisaged that international organizations may actively access national courts to vindicate their rights vis-à-vis private parties, it is usually their immunity from jurisdiction that prevents them from being sued before national courts”. It highlights that the immunities of international organizations and their agents and officials are usually established in specific treaty provisions, stressing that existence of customary rule of international law granting such immunities is still matter of debate. As it observes, while most conventional provisions expressly grant a functional immunity, others simply provide that the organization enjoys immunity from legal process. And, “this is largely understood as providing for absolute jurisdictional immunity”.

The report notes that domestic tribunals adopted several approaches to exclude or limit the immunity of international organizations.  Three main trends have emerged.

Some national courts have relied on the concept of implicit waiver, finding that the choice of forum and choice of law clauses constitute an implicit waiver of immunity.

In other cases, domestic courts and tribunals have restricted international organizations immunity to non- commercial activities and exercised jurisdiction over dispute of a private law character. As highlight by the report, in this cases, domestic courts reconstructed the scope of international immunity by resorting the “State rationale” (also known as State analogy). According to this line of reasoning, national courts have jurisdiction in purely commercial disputes originated in activities of a private law character (acta jure gestionis).

Other courts attempted to limit the immunity of international organizations by relying on the notion of right of access to justice enshrined in several human rights instrument and domestic legislations and constitution. Since the right of access to courts must be effective, any exemption to it– including the recognition of  jurisdictional immunity – can be justified only insofar an alternative appropriate mean of disputes resolution with private parties is available. In addition, some courts refused to recognize the immunity of international organizations when the internal procedures of redress do not respect the right to a fair trial.