Chapter

Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2003–2004

Author(s):
International Monetary Fund
Published Date:
January 2009
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Background

Established in 1994,1 the International Monetary Fund Administrative Tribunal (“IMFAT” or “Tribunal”) serves as an independent judicial forum for the resolution of employment disputes arising between the International Monetary Fund (“IMF” or “Fund”) and its staff members.2 An Applicant may challenge the legality of an “individual” or “regulatory” decision of the Fund by which he has been “adversely affect[ed].”3 In the case of challenges to “individual” decisions, an Application may be filed only after the Applicant has exhausted all available channels of administrative review.4 The Judgments of the Tribunal are final and without appeal.5

The Tribunal is composed of a President, two Associate Judges and two Alternate Judges, each appointed for two-year terms and eligible for reap-pointment.6 The composition of the International Monetary Fund Administrative Tribunal remained unchanged during the period 2003–2004, with Judge Stephen M. Schwebel serving as the Tribunal’s President, Judges Nisuke Ando and Michel Gentot as Associate Judges, and Judges Georges Abi-Saab and Agustín Gordillo as Alternate Judges.7 During the period, the Tribunal rendered three Judgments and two Orders.8 This review highlights some of the most significant issues addressed by the jurisprudence of the IMFAT during the interval 2003–2004.9

Overview of Developments

During the period 2003–2004, the IMFAT considered the first challenges to reach the Administrative Tribunal to decisions denying requests for disability retirement under the Staff Retirement Plan (“SRP”). In two separate Judgments, Ms. “J”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-1 (September 30, 2003) and Ms. “K”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-2 (September 30, 2003), the Tribunal rescinded the decisions of the Administration Committee of the SRP and ordered that the disability pensions be granted. In reaching these decisions, the Tribunal articulated its standard of review for such cases, which arise through the channel of review provided by the Administration Committee of the SRP.

In Mr. “R” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2004-1 (December 10, 2004), the Tribunal addressed for the first time the possible preclusive effect of an earlier Judgment on a case brought by the same Applicant, thereby applying the principle of res judicata to the Tribunal’s Judgments. Reaching the merits of the complaint raised by Mr. “R”, the Tribunal resolved a question of equal treatment of staff in the context of coverage of residential security costs of staff members posted abroad.

Finally, as the Tribunal had decided that each of the Applications considered during the period 2003–2004 was well-founded, it awarded relief pursuant to its remedial authority. These developments are elaborated below.

The Tribunal’s Standard of Review and Relationship to the Channels of Administrative Review

The Tribunal’s standard of review is governed by the second sentence of Article III of the Statute, which provides:

In deciding on an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.

In formulating its standard of review in the case of a challenge to the denial of a request for disability retirement, the Tribunal in Ms. “J” had the opportunity to elucidate further its relationship to other elements of the Fund’s dispute resolution system, as well as to reflect upon its jurisprudence in respect of review of decisions taken in the exercise of managerial discretion.

The Tribunal began by articulating the meaning of “standard of review” as follows:

The standard of review, understood as describing the relationship between the Administrative Tribunal and the decision maker responsible for the contested decision, represents the degree of deference accorded by the Tribunal to the decision maker’s judgment. The standard of review is designed to set limits on the improper exercise of power and represents a legal presumption about where the risk of an erroneous judgment should lie. The degree of deference—or depth of scrutiny—may vary according to the nature of the decision under review, the grounds upon which it is contested, and the authority or expertise that has been vested in the original decision maker.10

Notably, the case of Ms. “J” was the first in which the Tribunal had the benefit of views presented by an Amicus Curiæ. The Staff Association Committee (“SAC”) applied for and was granted the opportunity to present its views, pursuant to Rule XV11 of the Tribunal’s Rules of Procedure. The controversy as to the applicable standard of review was argued principally between the Fund and the Amicus Curiæ. While the Fund emphasized an “arbitrary or capricious” standard of review as applied to individual decisions taken in the exercise of managerial discretion, the Amicus Curiæ contended that the Administration Committee’s decisions on disability retirement deserved a deeper level of scrutiny.12

A distinguishing feature of the problem posed by the case was that, unlike the Grievance Committee, the Administration Committee of the Staff Retirement Plan plays a dual role within the Fund’s dispute resolution system:13

“It is responsible for taking the administrative act that may be contested in the Administrative Tribunal and it also supplies what is deemed a channel of review for purposes of the exhaustion of remedies requirement of Article V of the Tribunal’s Statute.… Accordingly, while a decision of the Grievance Committee will not be subject to direct review by the Administrative Tribunal, a decision of the SRP Administration Committee necessarily will be.”14

In defining the Tribunal’s standard of review in disability retirement cases, the Tribunal clarified its relationship to the channels of administrative review as follows. The Tribunal confirmed its authority to make both findings of fact and conclusions of law, and therefore to review de novo the legality of an administrative act of the Fund. This authority, explained the Tribunal, stems from its “unique role as the sole judicial actor within the Fund’s dispute resolution system.” At the same time, the Tribunal “draws upon the record assembled through the review procedures.”15

Prior to the cases of Ms. “J” and Ms. “K”, the Tribunal’s standard of review had been elucidated in cases of challenges to administrative acts taken in the exercise of the Fund’s discretionary authority. The Tribunal noted that, in a variety of contexts, the IMFAT, in discharging its responsibility to review the lawfulness of challenged administrative acts, has acknowledged, and deferred to, the exercise of the managerial discretion of the Fund. This deference is at its height when it reviews regulatory decisions (as contrasted with individual decisions), especially policy decisions taken by the Fund’s Executive Board.16

At the same time, the Tribunal pointed out that the standard articulated in the Commentary on the Statute for review of individual decisions taken in the exercise of managerial discretion17 “… comprehends a number of different factors.… Hence, its operation in a particular case may emphasize one factor over others or it may involve multiple factors, depending upon such variables as the nature of the contested decision and the grounds on which the applicant seeks that it be impugned.” The Tribunal emphasized that a “multiplicity of factors” make up the standard of review for individual decisions taken in the exercise of managerial discretion and that “… some of these factors contemplate stricter scrutiny on the part of the Administrative Tribunal than do others.”18

The Tribunal in Ms. “J” rejected the Fund’s contention that a determination on disability retirement is “quintessentially a discretionary judgment” that should be reviewed by the Tribunal under an “arbitrary and capricious” standard of review.19 In the view of the Tribunal, two factors differentiate a disability retirement decision from an act taken in the exercise of the Fund’s managerial discretion. First, disability retirement decisions involve quasi-judicial decision making, i.e., construing the applicable terms of the Staff Retirement Plan and applying them to the facts of a particular case. Second, the channel of review applicable to such decisions does not involve the Managing Director; individual decisions taken under the Staff Retirement Plan are exclusively vested in the SRP Administration Committee, subject only to direct appeal (following reconsideration by the Committee itself) to the IMF Administrative Tribunal.20

In Ms. “J”, the Tribunal referred to its earlier Judgment in Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2001-2 (November 20, 2001), in which it had acknowledged the unique nature of the “appellate authority” arising from Section 7.2 of the SRP and Article II of the Tribunal’s Statute.21 The Tribunal noted that it was significant that in that case, arising under the SRP provision governing the giving effect to orders for family support and division of marital property, the IMFAT had reviewed the “soundness” of the SRP Administration Committee’s decision and concluded that it was “in error.”22 The Tribunal in Ms. “J” clearly differentiated the standard of review it had applied in Mr. “P” (No. 2) from that employed when it reviews decisions taken in the exercise of discretionary authority.23 Additionally, the IMFAT found support in the jurisprudence of other international administrative tribunals for the view that a decision on disability retirement is an act of quasi-judicial decision making, subject to a higher degree of scrutiny than that applied to the review of discretionary acts.24

Having examined the statutory requirement that the Tribunal apply “… generally recognized principles of international administrative law concerning judicial review of administrative acts” (Statute, Article III), as well as the associated Commentary on the Statute, its own jurisprudence and that of other international administrative tribunals, the IMFAT concluded that disability retirement decisions are subject to scrutiny as follows: Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact? Was the Committee’s decision taken in accordance with fair and reasonable procedures? Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated?25

The Law of Disability Retirement

Applying the standard of review for disability retirement decisions established in Ms. “J”, the Tribunal considered whether the Administration Committee had correctly interpreted and soundly applied to the facts of the cases of Ms. “J” and Ms. “K” the requirements of Section 4.3 of the Fund’s Staff Retirement Plan. That section provides that a Plan participant may be retired on a disability pension if “… such participant, while in contributory service, bec[omes] totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; [and] such incapacity is likely to be permanent.…”

In Ms. “J”, the Tribunal was required to construe the disability retirement requirements in the case of a staff member who had performed a very specialized function in the Fund, as a verbatim reporter, and then suffered a disability to her arms and hands that directly impaired her ability to perform that specialized function. The case of Ms. “K”, by contrast, presented the circumstance of a staff member who, as a result of psychiatric illness, was impaired on a recurring basis from performing her responsibilities as a Staff Assistant. The dispute in Ms. “J” centered on the question of whether, given the Applicant’s inability to perform the functions of the position she had occupied when her incapacity arose, there were other duties that the Fund reasonably could ask her to perform. In Ms. “K”, the controversy focused on whether or not the Applicant was totally incapacitated from performing the functions of the job she had occupied for many years, on the basis that she was unable on an intermittent basis to discharge her job functions. In both cases, the Tribunal found the decisions of the SRP Administration Committee not to be sustainable.

Both Ms. “J” and Ms. “K” had raised the contention that it is inherently unfair for the Fund to separate a staff member from service for medical reasons on the basis of having no transferable skills while at the same time denying a request for disability retirement. The Tribunal held that, under the Fund’s internal law, separation for medical reasons cannot determine entitlement to a disability pension under the Staff Retirement Plan. Nonetheless, concluded the Tribunal, the “… factual circumstances surrounding the separation may be given weight in reviewing the soundness of the SRP Administration Committee’s decision on an application for disability retirement.”26

It was not disputed that Ms. “J” was separated for medical reasons as a result of a repetitive use injury. As she remained unable to use her hands and arms in repetitive motion as required to perform the functions of a verbatim reporter, the Fund framed the question before the Tribunal in the disability retirement case as whether Ms. “J”’s education and abilities could be utilized elsewhere in the Fund without requiring her to use her hands in a manner that would exacerbate her injury.27 The Fund had identified to the SRP Administration Committee six positions which it asserted Ms. “J” would be considered qualified to perform, with a reasonable amount of training and accommodation, and it was on that basis that the Committee had decided that the Applicant’s skills could be used in the Fund and that she accordingly was not “totally incapacitated” under the terms of the Staff Retirement Plan.

The Tribunal’s own review of the job standards for the identified positions, however, revealed that the positions contemplated a candidate whose educational background differed significantly from that required to perform the functions of the position that Ms. “J” had occupied as a verbatim reporter. The Tribunal accordingly concluded:

… in view of Ms. “J”’s highly specialized but limited training and experience, it would not be reasonable to expect the Fund to ask her to perform the duties of any of the positions identified by the … Fund’s Human Resources Department.… Nor is it clear that Ms. “J” would be qualified to perform any of these jobs with a reasonable amount of additional training and accommodation, as the Fund maintains.28

Accordingly, the Tribunal concluded that Ms. “J”, while in contributory service, had become “totally incapacitated” under the terms of the pension Plan “… not in the sense that she is incapable of working at all but that she is incapable of performing any duty that the Fund may reasonably call upon her to perform.” 29

In the case of Ms. “K”, the Applicant maintained that her recurring psychiatric symptoms did not wax and wane in a predictable manner so as to allow for their accommodation in the workplace. The Fund countered that intermittent incapacity should not be considered “total” incapacity as required by the SRP, and that as long as the Applicant could perform her duties “’even if not on a sustained basis’” she did not meet the criteria for a disability pension.30 In assessing whether the Administration Committee had drawn reasonable conclusions from the evidence, the Tribunal considered such factors as the internal consistency of the physicians’ reports, separating observations as to the Applicant’s condition from ultimate conclusions with respect to incapacity. The Tribunal concluded that there were aspects of the reviewing physicians’ reports that called into question their internal consistency. In addition, the Tribunal questioned “… the possible tendency of the decision makers to minimize the seriousness of Applicant’s medical condition.…” In particular, noted the Tribunal, “[i]t may be asked whether, in the discussion of the Administration Committee, the Medical Advisor somewhat discounted the seriousness of Applicant’s medical condition and the difficulty of its treatment, in contrast to his own earlier reports.”31

After reviewing the evidence, including the Administration Committee’s initial finding that a return to the workplace was not a viable option in the case of the Applicant, the Tribunal concluded that “… although Ms. “K”’s disabling symptoms may be of an ‘intermittent’ character, they may well have had a pervasive effect on her ability to maintain the position of Staff Assistant.” In the view of the Tribunal, “… the Applicant is totally incapacitated, mentally, to perform the duties in the Fund that she might be reasonably called upon to perform, namely those of Staff Assistant.…”32

Having found in both Ms. “J” and Ms. “K” that the Applicants met the preliminary requirement of being “totally incapacitated” under the terms of the Staff Retirement Plan, the IMFAT proceeded in each case to consider whether the incapacity was “likely to be permanent.” (SRP Section 4.3 (a) (ii).) In the case of Ms. “J”, after reviewing the evidence, the Tribunal concluded that it was likely that the Applicant’s condition would be permanent “… in the sense that she will remain unable to be appointed to a position in the Fund.”33 The Tribunal’s Judgment reflected the view that both the requirement that the Plan participant be “totally incapacitated” and that the incapacity be “likely to be permanent” were to be interpreted in the light of the duties that the applicant for disability retirement might reasonably be called upon by the Fund to perform.34

In Ms. “K”, the question of the likely permanency of the Applicant’s incapacity centered on the issues of the seriousness and long-standing nature of her illness, the ease of its treatment, and the Applicant’s reasonable compliance or not with available treatment options. The Tribunal found insufficient support in the record for the contention that Ms. “K” failed to comply with prescribed treatment regimes. Moreover, it observed, any treatment options and prospects for improvement were to be evaluated in the context of the nature and seriousness of the illness and the length of its duration. On the basis of these considerations, the Tribunal concluded that the Applicant’s incapacity was “likely to be permanent” under the terms of the SRP.35

Accordingly, the Tribunal concluded that the Applicants in Ms. “J” and Ms. “K” had met the requirements for disability retirement under the Staff Retirement Plan and that the decisions of the SRP Administration Committee should be rescinded.

Disability Retirement: Alleged Procedural Unfairness

Both Ms. “J” and Ms. “K” additionally contended that the decisions denying their requests for disability pensions had been taken in violation of fair and reasonable procedures. Their Applications, observed the Tribunal, raised the issue of what process is due to applicants for disability retirement under the SRP. That such decisions are to be taken in accordance with fair and reasonable procedures, stated the Tribunal, is “an interest shared by all Plan participants and the organization,” and “… the applicant’s stake in the outcome of the decision-making process deserves a high level of procedural protection.”36

While confirming its authority to review disability retirement decisions for procedural fairness, the Tribunal in the cases of Ms. “J” and Ms. “K” concluded, having decided in favor of the Applicants on substantive grounds, that there was no need to pass upon their procedural complaints.37 Nonetheless, the Tribunal commented that there was “room to question” whether the procedures employed by the Administration Committee of the SRP had afforded Ms. “J” and Ms. “K” sufficient and timely notice and opportunity for rebuttal.38

The Tribunal additionally offered a series of procedural considerations for the future guidance of the Administration Committee.39 Notably, the Tribunal observed that it is the function of the SRP Administration Committee, not of its Medical Advisor, to draw ultimate conclusions as to eligibility for disability retirement:

… the advice of the Medical Advisor … should be confined to medical questions and not extend to the ultimate conclusion of whether the applicant is, or is not, totally and permanently incapacitated for the performance of any duty which the Fund may reasonably call upon him to perform. Rather, the drawing of that conclusion should be the function of the Administration Committee.40

Res Judicata and Challenge to the Admissibility of an Application

Essential to the powers exercised by the IMFAT is its authority to render Judgments that are final and binding on the parties. This authority, which is codified in Article XIII41 of the Statute, confirms the Tribunal’s role as an independent judicial forum. Only limited provision is made under the IMFAT Statute for the interpretation, correction42 or revision43 of a Judgment.

In Mr. “R”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002-1 (March 5, 2002), the Administrative Tribunal had rejected the contentions of the Applicant, an overseas Office Director, that he should have been afforded an overseas assignment allowance and a housing allowance commensurate with the housing benefit accorded the Fund’s Resident Representative posted in the same overseas location. Following the Tribunal’s Judgment in Mr. “R”, the Applicant sought and was denied by the Fund’s Human Resources Department reimbursement of security costs incurred indirectly as a result of electing to live in a secure hotel, rather than in a private residence requiring security upgrades, during his three-year term as an overseas Office Director. Mr. “R” challenged this decision via a second Application before the Administrative Tribunal.

The Fund maintained that Mr. “R”’s second Application was barred by the Tribunal’s earlier Judgment in Mr. “R”. Article XIII of the Tribunal’s Statute provides that “Judgments shall be final, subject to Article XVI and Article XVII, and without appeal.” This statutory provision, the IMFAT confirmed, applies to the Tribunal’s Judgments a “cardinal principle of judicial review, the doctrine res judicata.” Res judicata prevents the relitigation of claims already adjudicated, promoting judicial economy and certainty among the parties. 44 While the IMFAT had twice before affirmed the principle of the finality of its Judgments in rejecting requests for interpretation of Judgments,45 the case of Mr. “R” (No. 2) was the first in which res judicata was raised as a defense to an Application.

For res judicata to bar a subsequent claim, the Tribunal explained in Mr. “R” (No. 2), three common elements must be present in both the new and previously decided cases: the parties must be the same; the outcome sought must be the same; and the cause of action must have the same foundation in law.46 While the parties were indisputably the same, at issue in the case of Mr. “R” (No. 2) was whether the outcome sought and the foundation in law of Mr. “R”’s first and second Applications were distinct. The Tribunal concluded that they were.

Mr. “R”, in his first case before the Administrative Tribunal, had contended that as an overseas Office Director posted in a particularly challenging location he should have been entitled to an overseas assignment allowance and a housing allowance commensurate with that accorded the Fund’s Resident Representative posted in the same foreign city. The Tribunal held that the Fund had not abused its discretion in deciding to allocate differing benefits to different categories of Fund staff, nor in declining to make an exception in the Applicant’s case.

In his second Application, Mr. “R” sought (a) an interpretation of the housing allowance for overseas Office Directors that would take into account security costs in assessing the difference between housing costs in Washington, D.C. and the duty station by recompensing him for the cost of security allegedly included in his rental rate; and/or (b) an interpretation of the Fund’s security “policy” that would reimburse security costs incurred indirectly.47

In the view of the Tribunal:

… the purpose of the current claim is not the same as that earlier litigated. In the first case, Mr. “R” challenged the Fund’s decision not to accord him as Director of JAI the same perquisites as those granted to the Resident Representative in Abidjan. In this case, he contests the application of a Fund security policy that distinguishes between security costs directly incurred and security costs indirectly incurred, the Fund meeting the former but not the latter.48

Moreover, concluded the Tribunal, the foundation in law of Mr. “R”’s second cause of action differed from that of his first. In his first Application, Mr. “R” challenged as discriminatory the difference in benefits accorded overseas Office Directors vis-à-vis Resident Representatives in the unique circumstance in which such officials are posted in the same foreign city. The central question asked and answered by the Tribunal in Mr. “R”’s first case was “’… whether the reasons given by Respondent for the differential treatment of overseas Office Directors and Resident Representatives are supported by evidence and are rationally related to the purposes of the employment benefits at issue.’”49 The Tribunal had not considered the contention, raised in Mr. “R”’s second Application, that in calculating the housing allowance of an overseas Office Director the Fund unfairly excluded security costs in assessing the difference in housing costs between Washington, D.C. and the duty station.50

The Tribunal additionally observed that in its Judgment in Mr. “R”’s first case it had found some of the Fund’s justifications for the differing benefits policies more persuasive than others. Notably, the Tribunal in Mr. “R” had suggested that the Applicant was correct in pointing out that the distinction in benefits accorded Office Directors vs. Resident Representatives was not supported by security considerations, at least as to Fund personnel posted at his particular duty station.51 While the Tribunal in Mr. “R” had not concluded that the shared factor of security concerns in Abidjan was sufficient to invalidate the distinction in benefits between the Resident Representative and overseas Office Director posted there, neither had it relied on security considerations in upholding the distinction in benefits between the two categories of Fund staff.52 The Tribunal rather had observed that the Fund’s policy “’… is dependent on generalizations, i.e. generalizations about the living conditions in the locations in which “many” Resident Representatives, as compared with the conditions in the countries in which “most” overseas Office staff serves.’”53

In the view of the Tribunal, “… the foundation in law for Applicant’s argument in the present case differs, as he identifies a different inequity than the one complained of in the first case. In the present case, Mr. “R”’s complaint focuses upon the inequality allegedly visited upon overseas Office staff who choose to rent security-enhanced quarters vis-à-vis overseas Office staff who choose to take up residence in a facility that requires security upgrades.”54 In Mr. “R”’s first case, the matter of reimbursement of security costs allegedly incurred by residing in a hotel was not specifically raised by the Applicant nor considered by the Tribunal.55

The Tribunal summarized its decision on the admissibility of the Application as follows:

The Tribunal concludes that Mr. “R”’s current claim is not debarred on the ground of res judicata, because, in its essence, it is a challenge not to treating the benefits of a Resident Representative and an Office Director differently but to meeting security costs differently depending on whether the Fund pays those costs directly or leaves it to the staff member concerned to assume them indirectly as by payment of hotel bills that subsume security protection. This latter question was not addressed in the Tribunal’s Judgment in the case initially brought by Mr. “R”.56

Equal Treatment

Having decided that Mr. “R”’s Application was not debarred on the ground of res judicata, the Tribunal proceeded to consider his claim on the merits. As noted, while the Judgment in Mr. “R”’s first case had established that the principle of nondiscrimination serves as a constraint on the Fund’s discretionary authority,57 the particular distinction complained of was not held by the Tribunal to have been an abuse of discretion. By contrast, Mr. “R” succeeded in his second Application, alleging a different inequality of treatment.

The essence of the Applicant’s complaint in Mr. “R” (No. 2) was that the Fund improperly applied to the circumstances of his case the calculation of the housing allowance for an overseas Office Director. Mr. “R” contended that the allowance, in failing to reimburse him for security costs incurred indirectly through the choice of renting a security-enhanced accommodation, failed to account fully for the difference in housing costs between Washington, D.C. and his overseas post.

The Fund, for its part, maintained that the decision contested by Mr. “R” was consistent with applicable Fund policy and that sound business reasons supported the payment of security costs directly. Mr. “R” challenged the fairness of the Fund’s stated policy of covering the necessary costs of providing security in all locations where staff are posted around the world but not to reimburse a staff member for those expenses that may be “avoided” by the staff member’s choice of accommodation.

In the view of the Tribunal, Mr. “R”’s argument was the more persuasive. In its dispositive passage, the Tribunal upheld the principle of equal treatment in respect of security costs:

The Fund “avoided” those costs, but Mr. “R” could not avoid them. The Tribunal sees no cogent consideration, in light of the Fund’s policy of meeting security costs, why Respondent should be absolved of those costs in the case of Mr. “R” simply because they were indirectly rather than directly incurred. On the contrary, equal treatment of staff in their fundamental right to enjoy physical security should govern.58

At the same time, the Tribunal indicated that it was dealing in the case of Mr. “R” with a “singular factual circumstance.”59

Remedies and Legal Costs

In each of the Judgments rendered during the period 2003–2004, the Tribunal concluded that the Applications were well-founded. Accordingly, pursuant to its remedial authority, the Tribunal rescinded the contested decisions and ordered measures to correct their effects.60 In Ms. “J” and Ms. “K”, the Tribunal ordered that disability pensions be granted retroactive to the Applicants’ retirement dates.61 In Mr. “R” (No. 2), the Tribunal awarded the Applicant the “most reasonable approximation that the record afford[ed]” of the costs incurred by Mr. “R” indirectly in renting a security-enhanced accommodation for the duration of his appointment as overseas Office Director.62

Additionally, pursuant to Article XIV (4)63 of the Statute, the Tribunal in Ms. “J” and Ms. “K” ordered that the reasonable costs of the Applicants’ legal representation be borne by the Fund.64 As the Applicants had prevailed in full in seeking reversal of the decisions denying disability retirement, the Tribunal awarded the full amount of legal costs submitted, having regard for the statutory factors of “the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.”

In assessing compensable legal costs pursuant to the Judgments in Ms. “J” and Ms. “K”, the Tribunal accepted the statements prepared by the Applicants’ respective counsel as valid representations of the “costs incurred by the applicant in the case,” (Statute, Article XIV (4)), thereby denying the Fund’s request that the Tribunal inquire into the particular fee arrangements existing between the Applicants and their respective counsel.65 In the case of Ms. “J”, the Tribunal additionally rejected the Fund’s request that the fee award be reduced by a sum attributed to consultation concerning a workers’ compensation claim that the Applicant, during the course of the Tribunal’s proceedings, had conceded was not yet ripe for review. Having recognized in the Judgment on the merits that the workers’ compensation claim was of an “intersecting nature” with the Applicant’s disability retirement claim,66 the Tribunal held in assessing compensable legal costs that “… at the applicable stage of consultation [between the Applicant and her counsel], both complaints were reasonably being considered in tandem,” and that accordingly no diminution of the fee award was appropriate.67

Conclusion

During the period 2003–2004, the Tribunal was presented with a number of issues of substantive law on which it had not previously been called upon to rule. These included interpretation of the provision of the Fund’s Staff Retirement Plan that governs retirement by Plan participants who become totally incapacitated for the performance of any duty which the Fund might reasonably call upon them to perform and whose incapacity is likely to be permanent. In the course of deciding these cases, the Tribunal formulated its standard of review for disability retirement decisions, which are distinguished by “quasi-judicial” decision making on the part of the Administration Committee of the SRP and over which the Tribunal exercises “appellate authority.”

Also during 2003–2004, the IMFAT was confronted for the first time with a claim of res judicata as a defense to the admissibility of an Application. The Tribunal concluded that while Article XIII (finality of judgments) applies the principle of res judicata to the IMFAT’s Judgments, the Applicant’s second Application was not barred by its Judgment in his earlier case because the foundation in law and the outcome he sought in his second Application differed from his first. The Tribunal applied the principle of equality of treatment in deciding the claim on the merits.

Finally, during the period 2003–2004, the Tribunal exercised its remedial authority pursuant to Article XIV of its Statute. In Ms. “J”, Ms. “K” and Mr. “R” (No. 2), the Tribunal rescinded the contested decisions and prescribed measures to correct the effects of those decisions. Additionally, in Ms. “J” and Ms. “K”, the Tribunal awarded the Applicants the reasonable costs of their legal representation, setting down principles for application in future cases.

Registrar, International Monetary Fund Administrative Tribunal.

The Tribunal’s Statute was adopted by the IMF Board of Governors by Resolution 48-1 and entered into force on October 15, 1992. The Tribunal was formally established on January 13, 1994 when, pursuant to the Statute, the Managing Director notified the staff of the Fund of the appointment of the Tribunal’s members. (Statute, Article XX (2).)

The Tribunal’s jurisdiction also embraces enrollees in and beneficiaries under staff benefit plans challenging administrative acts arising under such plans. (Statute, Article II (1) (b).)

Statute, Article II (1) and (2).

Statute, Article V (1).

Statute, Article XIII (2).

Statute, Article VII (1)(a) and (b), and (2).

The Tribunal’s Judges must satisfy the statutory requirement that they possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. (Statute, Article VII (1) (c).) The composition of the Tribunal (2003–2004) not only ably fulfills this requirement but also reflects major legal systems of the world:

  • Judge Stephen M. Schwebel (United States), President

    • Former President, International Court of Justice;

  • Associate Judge Nisuke Ando (Japan)

    • Professor of International Law, Doshisha University, Kyoto

    • Director, Kyoto Human Rights Research Institute

    • Member and Former Chairperson, Human Rights Committee under ICCPR;

  • Associate Judge Michel Gentot (France)

    • Former President of the Judicial Chamber, Conseil d’Etat, France

    • President, International Labour Organisation Administrative Tribunal;

  • Alternate Judge Georges Abi-Saab (Egypt)

    • Emeritus Professor of International Law,

    • Graduate Institute of International Studies, Geneva

    • Member of the Appellate Body, World Trade Organization;

  • Alternate Judge Agustín Gordillo (Argentina)

    • Professor of Administrative Law and Professor of Human Rights,

    • University of Buenos Aires School of Law

    • Judge, Organization of American States Administrative Tribunal.

At the conclusion of 2004, the Tribunal adopted revisions to its Rules of Procedure with effect in respect of all Applications filed after December 31, 2004. As these amendments have no applicability to the Judgments and Orders reported in the present Volume, their effect will be considered in a later Volume of International Monetary Fund Administrative Tribunal Reports.

For reviews of the Tribunal’s earlier jurisprudence, see Goldman, “The International Monetary Fund Administrative Tribunal: Its First Six Years,” in International Monetary Fund Administrative Tribunal Reports, Vol. I, 1994–1999, pp. 1–33 (2000); and Goldman, “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2000–2002,” in International Monetary Fund Administrative Tribunal Reports, Vol. II, 2000–2002, pp. 1–20 (2008).

Ms. “J”, para. 99; see also Ms. “K”, para. 40.

Rule XV (Amicus Curiae) provides: “The Tribunal may, at its discretion, permit any persons, including the duly authorized representatives of the Staff Association, to communicate their views to the Tribunal.” The Tribunal commented that it found the views offered by the SAC to be “discerning and constructive.” Ms. “J”, para. 20.

Ms. “J”, para. 100.

Challenges to decisions arising under the Staff Retirement Plan are expressly excluded from the Grievance Committee’s jurisdiction. In 1999, the Fund enacted Rules of Procedure of the Administration Committee of the Staff Retirement Plan. These Rules set forth the requirements for the exhaustion of the administrative review procedures provided by the SRP Administration Committee for purposes of filing an Application with the Administrative Tribunal.

Ms. “J”, para. 99; see also Ms. “K”, para. 41.

Ms “J”, paras. 95–96.

Ms. “J”, para. 105; see also Ms. “K”, para. 43.

In cases involving the review of individual decisions taken in the exercise of managerial discretion, the Administrative Tribunal consistently has invoked the standard set forth in the Commentary as follows:

… with respect to review of individual decisions involving the exercise of managerial discretion, the case law has emphasized that discretionary decisions cannot be overturned unless they are shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.

Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund (“Report of the Executive Board”) p. 19.

Ms. “J”, para. 107; see also Ms. “K”, para. 44.

The Tribunal observed that the “arbitrary and capricious” standard of review represents its “least rigorous level of scrutiny.” Ms. “J”, para. 109; see also Ms. “K”, para. 44.

Ms. “J”, paras. 112–113; see also Ms. “K”, paras. 45–46.

Ms. “J”, para. 114. Article II (1) (b) provides:

The Tribunal shall be competent to pass judgment upon any application: …

b. by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant.

Section 7.2 (b) of the SRP provides that decisions by the Administration Committee to determine inter alia whether any person has a right to any benefit under the Plan, and the amount thereof, are subject to review by the Administrative Tribunal. See Mr. “P” (No. 2), para. 141.

Ms. “J”, paras. 114–115, quoting Mr. “P” (No. 2), paras. 141–145; see also Ms. “K”, paras. 47–48.

Ms. “J”, para. 116.

Such heightened scrutiny has also been found to be applicable in review of disciplinary decisions. Ms. “J”, paras. 118–127; see also Ms. “K”, paras. 50–53. Later, in the first case in which the IMFAT was called upon to review a disciplinary decision, it referred to this jurisprudence. See Ms. “BB”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-4 (May 23, 2007), paras. 123–125.

Ms. “J”, para. 128; see also Ms. “K”, para. 54.

Ms. “J”, para. 147; Ms. “K”, para. 64.

Ms. “J”, para. 133.

Id., para. 140.

Id., para. 148.

Ms. “K”, para. 57.

Id., paras. 67–75.

Id., paras. 62, 78.

Ms. “J”, para. 157.

See Ms. “J”, para. 149 and Ms. “K”, para. 79, quoting Courtney (No. 2) v. International Bank for Reconstruction and Development, WBAT Decision No. 153 (1996), para. 33.

Ms. “K”, paras. 79–95. In both Ms. “J” and Ms. “K”, the Tribunal additionally took note of SRP Section 4.3(d), which provides for the possibility of periodic medical examination and for the discontinuance or reduction of a disability pension based on a finding that the incapacity has wholly or partially ceased. See Ms. “J”, para. 157; Ms. “K”, para. 93.

Ms. “J”, para. 162; Ms. “K”, para. 100.

Ms. “J”, para. 171; Ms. “K”, para. 108. The Tribunal also declined to award any separate compensation on the ground of procedural irregularity. Ms. “J”, para. 180 and Decision; Ms. “K”, para. 117 and Decision.

Ms. “J”, paras. 167–169; Ms. “K”, paras. 104–106.

Ms. “J”, paras. 171–176; Ms. “K”, paras. 108–113.

Ms. “J”, para. 175; Ms. “K”, para. 112. The Tribunal returned to this and other principles established in Ms. “J” and Ms. “K” in Ms. “CC”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-6 (November 16, 2007) (denying Application contesting denial of disability pension).

Article XIII (2) provides: “Judgments shall be final, subject to Article XVI and Article XVII, and without appeal.”

Article XVII provides for the interpretation and correction of Judgments as follows:

The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error.

Article XVI provides for the revision of Judgments as follows:

A party to a case in which a judgment has been delivered may, in the event of the discovery of a fact which by its nature might have had a decisive influence on the judgment of the Tribunal, and which at the time the judgment was delivered was unknown both to the Tribunal and to that party, request the Tribunal, within a period of six months after that party acquired knowledge of such fact, to revise the judgment.

Mr. “R” (No. 2), para. 25.

Ms. “C”, Applicant v. International Monetary Fund, Respondent (Interpretation of Judgment No. 1997-1), IMFAT Order No. 1997-1 (December 22, 1997). See also Ms. “Y”, Applicant v. International Monetary Fund, Respondent (Interpretation of Judgment No. 1998-1), IMFAT Order No. 1999-1 (February 26, 1999) (“The adoption of the requested interpretation would constitute an amendment of the Judgment, which is not a matter in respect of which the applicable provisions of the Statute and the Rules of Procedure enable the Tribunal to decide by way of an interpretation, because the Judgment is final and without appeal.”)

Mr. “R” (No. 2), paras. 27–29.

Id., para. 33.

Id., para. 34.

Id., para. 38, quoting Mr. “R”, para. 53.

Id., para. 37.

Id., para. 39, citing Mr. “R”, para. 56.

The Tribunal cited other factors, in particular the incentive to recruitment of Resident Representatives provided by the overseas assignment allowance, in concluding that the allocation of differing benefits to different categories of staff was reasonably related to the purposes of those benefits. Id., para. 40, citing Mr. “R”, para. 64.

Id., para. 39, quoting Mr. “R”, para. 58.

Id., para. 42.

The Tribunal also noted that the Fund had reacted to Mr. “R”’s April 2002 request as if it were distinct from the request disposed of by the Administrative Tribunal only one month earlier. Id., para. 43.

Id., para. 44.

Mr. “R”, para. 30.

Mr. “R” (No. 2), para. 52.

Id.

Article XIV (1) of the Tribunal’s Statute provides:

If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.

Ms. “J”, para. 179 and Decision; Ms. “K”, para. 116 and Decision.

Mr. “R” (No. 2), paras. 53–54 and Decision.

Article XIV (4) provides:

If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.

Ms. “J”, paras. 181–183; Ms. “K”, paras. 118–119. Mr. “R”, who represented himself in the Tribunal’s proceedings, did not seek any award of legal costs.

Ms. “J”, Applicant v. International Monetary Fund, Respondent (Assessment of compensable legal costs pursuant to Judgment No. 2003-1), IMFAT Order No. 2003-1 (December 23, 2003), para. First; Ms. “K”, Applicant v. International Monetary Fund, Respondent (Assessment of compensable legal costs pursuant to Judgment No. 2003-2), IMFAT Order No. 2003-2 (December 23, 2003), para. First.

Ms. “J”, para. 89.

Ms. “J” (Order No. 2003-1), para. Second. This same principle was later applied in Ms. V. Shinberg (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2007-5 (November 16, 2007), note 32.

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