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Adversarial proceedings (183, 184,-666)

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Keywords: Adversarial proceedings
Total judgments found: 65

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  • Judgment 4111


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunalís case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded. This plea is well founded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that a number of witnesses be heard, including his former supervisor [...], which was refused. [...] Any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds. In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainantís allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;



  • Judgment 4110


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunalís case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; right to be heard; testimony;

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In the present case, the refusal, without valid grounds, to hear witnesses with regard to the complainantís allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; due process; evidence; harassment; inquiry; right to be heard; testimony; witness;



  • Judgment 4109


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainantís allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunalís case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;



  • Judgment 4108


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainantís allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; due process; harassment; inquiry; testimony;

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunalís case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; procedural flaw; right to be heard; testimony;



  • Judgment 4101


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.

    Consideration 16

    Extract:

    [T]he Director of the Centre was not obliged to refer the matter to a Commission of Inquiry. Paragraph 22 of Circular No. 13/2009 expressly provides that the Director may close the file ďif the accusations of the alleged victim are insufficiently well foundedĒ. In that case, her only obligation was to respond point by point to the complainantís allegations. Considering the nature of the allegations and the answers given, the Director was not required to provide any further justification to the complainant (see Judgment 3149, consideration 17). The sole purpose of the preliminary assessment of such a complaint is to determine whether there are grounds for opening an investigation (see Judgment 3640, consideration 5). In the absence of a contrary provision, the adversarial principle did not need to be applied at this preliminary stage of the procedure for opening a harassment investigation.

    Reference(s)

    ILOAT Judgment(s): 3149, 3640

    Keywords:

    adversarial proceedings; harassment; inquiry; motivation;



  • Judgment 4077


    127th Session, 2019
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunalís order to reinstate the complainant. The complainant applies for execution of Judgment 3928.

    Consideration 25

    Extract:

    [T]he [organization] could not refer to the complainantís alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff memberís conduct, as that would constitute a hidden sanction. The [organization]ís presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.

    Keywords:

    abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;



  • Judgment 4005


    126th Session, 2018
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her complaint of harassment.

    Consideration 6

    Extract:

    In support of her position, the complainant relies on the Tribunalís statement that ď[a] fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing partyĒ (see Judgment 3216, consideration 6), and that the non-disclosure of evidence in the absence of a reason in law ďconstitutes a serious breach of the complainantís right to procedural fairnessĒ (see Judgment 3264, consideration 16). The Tribunalís case law also relevantly states that ď[a] staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against [her or] himĒ (see Judgment 2700, consideration 6).

    Reference(s)

    ILOAT Judgment(s): 2700, 3216, 3264

    Keywords:

    adversarial proceedings; disclosure of evidence; due process;



  • Judgment 3948


    125th Session, 2018
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision not to renew her fixed-term contract.

    Consideration 10

    Extract:

    The Tribunal [...] considers that IOM should have disclosed to the JARB the documents that it had in its possession, as they could have assisted it to determine whether the reason given for not renewing the complainantís contract, budgetary constraints, was a valid and objective reason. The documents, appropriately redacted, should also have been disclosed to the complainant. Having not disclosed them, IOM breached due process as well as its duty of care to the complainant.
    The rationale for the latter determination can be gleaned from the statements in Judgment 3586, considerations 16 to 20, which may be summarized as follows: in keeping with consistent case law of the Tribunal, a staff member of an international organization must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him. In normal circumstances such evidence, which is peculiarly in the organizationís control, cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. However, such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. The principle of equality of arms must be observed by ensuring that all parties to a case are provided with all of the materials used by an internal adjudicating body, the JARB in this case. The failure to disclose them constitutes a breach of due process, as it would render its examination of the case incomplete and prevent it from properly considering the facts. This would not only violate due process but also the organizationís duty of care causing the impugned decision to be set aside.

    Keywords:

    adversarial proceedings; confidential evidence; duty of care;



  • Judgment 3944


    125th Session, 2018
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him following disciplinary proceedings.

    Consideration 4

    Extract:

    As disciplinary proceedings are in essence adversarial, they begin only once the staff member in question has been notified of them. The Tribunal considers that the sole purpose of the preliminary investigation is to determine whether there are grounds for initiating disciplinary action.

    Keywords:

    adversarial proceedings; disciplinary procedure; inquiry;

    Consideration 10

    Extract:

    [T]he Tribunal considers that in any case, even if the complainant did not attend the witnessesí interviews, his right to be heard was not breached, since he was informed of the content of their testimony and given an opportunity to comment on it when he received the charge letter of 28 February 2014 (see, for a similar case, Judgment 3640, under 20).

    Reference(s)

    ILOAT Judgment(s): 3640

    Keywords:

    adversarial proceedings; disciplinary procedure; testimony;



  • Judgment 3933


    125th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his appointment.

    Consideration 11

    Extract:

    The first topic concerns the provision to the Appeals Committee of a memorandum setting out the reasons of the Director, CIO for not accepting the complainantís reassignment to the position of Chief, Global Operations Branch, CIO. The FAO does not contest that the document was provided to the Committee but not the complainant but notes, as the Appeals Committee did in its report, that the document was marked ďstrictly confidentialĒ. However this does not provide a basis for exceptionally not providing the complainant with a copy of a document, and potentially an important document, in adversarial proceedings such as the internal appeal where the document is relied on by the Organization (see, for example, Judgments 3688, consideration 29, 3586, consideration 16, and 3862, consideration 11). The complainant was entitled to see the evidence advanced by the FAO in the internal appeal in order to equip him to provide rebutting evidence or to otherwise question the evidence or comment on it. The complainant was denied this opportunity. He is entitled to moral damages.

    Reference(s)

    ILOAT Judgment(s): 3586, 3688, 3862

    Keywords:

    adversarial proceedings; confidential evidence; evidence;



  • Judgment 3927


    125th Session, 2018
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to suspend her without pay for three months for misconduct.

    Consideration 11

    Extract:

    The complainant was provided with summaries of the interviews of Ms E. and Ms B., as well as her own, and was given ample opportunity to comment on them, of which she availed herself. The auditors found that, in substance, the alleged statements had in fact been made by the complainant, based solely on the three witness testimonies (of Ms B., Ms E. and the complainant). The auditors were tasked only with a fact-finding investigation, so they made no qualitative judgement on the complainantís statements in question and merely limited themselves to verifying whether or not the incident had occurred. Considering this, and the fact that the complainant had a summarized version of each of the interviews, she had all the evidence on which the authority based its decision (see Judgment 3863, under 18).

    Reference(s)

    ILOAT Judgment(s): 3863

    Keywords:

    adversarial proceedings; evidence;

    Consideration 11

    Extract:

    [T]he Tribunal stresses that the UPU is mistaken in relying on ďconfidentialityĒ, as stated in Staff Rule 110.4, quoted above, as a reason to deny the complainant a copy of either the investigation report or the findings and recommendations of the Disciplinary Committee. Clearly, Staff Rule 110.4(3) can only be interpreted as meaning that the deliberations are confidential and that the consequent reports are not to be published or shared unless or until the documents are relied on in adversarial proceedings, including in steps leading to the imposition of a disciplinary measure. While in the present case, the complainant had much of the information needed to defend herself (as the investigation was confined to the three witness interviews, of which she had summary copies), the only way to properly ensure that a staff member has been fully informed of all the evidence and other elements of the case against her or him, on which the authority has based or intends to base its decision, is to supply her or him with the pertinent documents. The UPU failed to do so and, in the result, the complainant is entitled to moral damages which the Tribunal assesses at 10,000 Swiss francs.

    Keywords:

    adversarial proceedings; confidential evidence; disciplinary procedure; inquiry;



  • Judgment 3846


    124th Session, 2017
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant objects to the working conditions to which she was subjected during a secondment and contends that the ITU breached the rules on performance appraisals.

    Consideration 6

    Extract:

    [T]he refusal of the Appeal Board to authorise the filing of a rejoinder by the complainant does not constitute a breach of the adversarial principle, because the [organisation]ís reply did not disclose any genuinely new facts. The Appeal Board was under no obligation to call the witnesses whom the complainant wished it to hear, since it was for that body to decide whether such a step was appropriate.

    Keywords:

    adversarial proceedings; due process; internal appeals body;



  • Judgment 3223


    115th Session, 2013
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns a decision on which the Tribunal already ruled in Judgment 2881 and which is res judicata.

    Consideration 6

    Extract:

    "[T]he Tribunal considers that, by virtue of the adversarial principle, an employer organisation may not raise an objection to an internal appeal filed by a staff member unless that person is able to express his or her views on the merits of the objection. As the [organisation] points out, Staff Rule 11.1.1, paragraph 4, makes no provision for a staff member to file a rejoinder with the Appeal Board; however, nor does it rule out this possibility, and it does not therefore preclude the submission of a rejoinder by the person concerned in accordance with the requirements of the adversarial principle. [...]
    The internal appeal proceedings were [thus] tainted with a flaw which, contrary to the [organisation]ís submissions, cannot be redressed in proceedings before the Tribunal. In the particular circumstances of the case, the Tribunal will not, however, set aside the impugned decision, but it will grant the complainant compensation in the amount of 1,000 euros for the moral injury caused by this flaw."

    Reference(s)

    Organization rules reference: Paragraph 4 of ITU Staff Rule 11.1.1

    Keywords:

    adversarial proceedings; allowance; breach; compensation; complaint allowed in part; discretion; general principle; iloat; internal appeal; internal appeals body; moral injury; no provision; organisation's duties; procedural flaw; procedure; refusal; rejoinder; reply; request by a party; res judicata; right; right to reply; staff regulations and rules;



  • Judgment 3216


    115th Session, 2013
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests her performance appraisal for its content and on the basis of what she considers to be procedural flaws.

    Consideration 6

    Extract:

    "A fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing party (see Judgments 1815, under 5, and 2700, under 6). Upon receipt of the report, the Board, which ultimately relied upon it, was obliged to advise the complainant of the receipt of new evidence and give her an opportunity to respond before taking it into consideration."

    Reference(s)

    ILOAT Judgment(s): 1815, 2700

    Keywords:

    adversarial proceedings; advisory body; case law; complaint allowed; complaint allowed in part; confidential evidence; disclosure of evidence; duty to inform; general principle; organisation's duties; right to reply; staff member's interest;



  • Judgment 3209


    115th Session, 2013
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant accuses the ITU of having failed in its duty to ensure transparency in a selection process.

    Considerations 13 and 14

    Extract:

    The complainant applied for a post but was not selected. She asks the Tribunal to require disclosure of the file of the selection process.
    "[The Organisation] argues that the complainantís request for the communication of the file is a claim made for the first time in her complaint and must therefore be dismissed as irreceivable. However, as the complainant rightly observes, this is not a new claim which would be subject to the rule on the exhaustion of internal remedies. In this instance, it is merely a request made on the basis of Article 11 of the Rules of the Tribunal, for the Tribunal to use its powers of investigation, which it can in fact do on its own motion.
    The defendant also stated that if the Tribunal considered that the information supplied in support of its arguments was insufficient, it would transmit the file of the selection process for the exclusive attention of the Tribunal. [...] The Tribunal recalls that, according to the adversarial principle, all documents submitted to it by a party to the proceedings must be communicated to the other party. It will be for the organisation itself, if it considers this necessary in order to protect the interests of third parties, to conceal identities to the required extent in the documents produced."

    Reference(s)

    ILOAT reference: Article 11 of the Rules of the Tribunal

    Keywords:

    adversarial proceedings; application of law ex officio; competition; disclosure of evidence; interlocutory order; internal remedies exhausted; new claim; receivability of the complaint;



  • Judgment 3200


    115th Session, 2013
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose on her the disciplinary measure of demotion.

    Consideration 11

    Extract:

    "Paragraph 5.2 [of the OSDI Quality Assurance Manual] must be interpreted in a manner consistent with the fundamental right of due process to know the name of the accuser except in those circumstances where revealing the identity of the accuser could undermine the integrity of the investigation."

    Reference(s)

    ILOAT reference: Paragraph 5.2 of the OSDI Quality Assurance Manual

    Keywords:

    adversarial proceedings; appraisal of evidence; complaint allowed; complaint allowed in part; disciplinary procedure; disclosure of evidence; due process; duty to inform; organisation's duties; right; right to reply;



  • Judgment 3070


    112th Session, 2012
    International Office of Epizootics
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "According to the Tribunal's case law, a staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, so as to be in a position to remedy the situation. Moreover, he or she is entitled to have objectives set in advance so that he or she will know the yardstick by which future performance will be assessed (see Judgment 2414, under 23). Precedent also has it that the procedure used for drawing up a performance appraisal forming the basis of a dismissal decision must always be adversarial (see, in particular, Judgments 2468, under 17, and 2515, under 18)."

    Reference(s)

    ILOAT Judgment(s): 2414, 2468, 2515

    Keywords:

    adversarial proceedings; complaint allowed; complaint allowed in part; criteria; date; duty to inform; organisation's duties; purpose; right; termination; time limit; unsatisfactory service; work appraisal;



  • Judgment 3065


    112th Session, 2012
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 7 & 8

    Extract:

    An investigation was carried out into the complainant's allegations of harassment.
    "The Tribunal notes that the evidence does not show that the complainant could have attended the witnesses' interviews, or that she was offered an opportunity to comment on their testimony, in order to have certain items of information rectified where necessary, or to have it put on record that she disagreed with witnesses. The Tribunal considers that even if, in the instant case, the investigator could not invite the complainant to attend all the interviews, she ought to have been allowed to see the testimony in order that she might challenge it, if necessary, by furnishing evidence. Since this was not the case, the Tribunal finds that the adversarial principle was not respected. It follows from the foregoing [...] that the [impugned] decision [...], which thus rested on a flawed investigation report, must be set aside."

    Keywords:

    adversarial proceedings; breach; complaint allowed; consequence; decision quashed; duty to inform; elements; evidence; flaw; harassment; inquiry; mistake of fact; oral proceedings; procedural flaw; report; right to reply; testimony;



  • Judgment 3046


    111th Session, 2011
    World Meteorological Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The right of an organisation to choose the manner in which it defends proceedings brought against it in the Tribunal / Absolute privilege.
    "The doctrine of res judicata is one of the legal concepts that serve to ensure that judicial decisions are final and binding and that litigation is brought to a final conclusion. Another such concept is 'absolute privilege' insofar as it relates to statements made in legal proceedings. [A]bsolute privilege attaches to statements made in, and in the course of, legal proceedings, including statements by the parties, their legal representatives and their witnesses so that, save in the case of perjury or interference with the course of justice, those statements may not be the subject of separate proceedings. Absolute privilege serves another important function. It enables the parties to present their cases fully so that a decision can be reached on the whole of the available evidence."

    Keywords:

    admissibility of evidence; adversarial proceedings; appraisal of evidence; binding character; evidence; finality of judgment; judgment of the tribunal; res judicata; submissions; testimony;

    Consideration 8

    Extract:

    "Article II, paragraph 5, of the Statute of the Tribunal relevantly provides that it is competent to hear complaints 'alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the [applicable] Staff Regulations'. The real question raised by this complaint is whether those words extend to decisions taken with respect to the conduct of proceedings before the Tribunal. The complainant points to nothing in the Staff Regulations limiting the right of [the Organization] to choose the manner in which it may defend proceedings brought against it by an official. And although the Tribunal accepts that various international norms and other general legal principles form part of an official's terms of appointment, it would be inconsistent with fundamental legal principles and incompatible with the role of the Tribunal to import a term which impinged on the right of an international organisation to choose the manner in which it defends proceedings brought against it in the Tribunal, whether by way of evidence or argument or by way of communication with the Tribunal relating to the proceedings. It follows that the complaint is not one 'alleging non-observance [...] of the [complainant's] terms of appointment [or] the [applicable] provisions of the Staff Regulations' and, thus, is not one that the Tribunal is competent to hear."

    Reference(s)

    ILOAT reference: Article II, paragraph 5, of the Statute of the Tribunal

    Keywords:

    admissibility of evidence; adversarial proceedings; appraisal of evidence; competence; competence of tribunal; evidence; general principle; iloat; iloat statute; limits; organisation; right; submissions;

    Consideration 7

    Extract:

    "Absolute privilege also operates to ensure the independence and impartiality of the judicial process. A tribunal would not be independent and impartial, nor seen to be so, if it were to assume the role of dictating to the parties the evidence and arguments that they can advance in their cases. That is not to say that a tribunal cannot control its own proceedings by, for example, excluding irrelevant evidence or striking out scandalous pleadings. Nor does it mean that a tribunal cannot draw inferences by reason of the nature of the evidence or argument presented, including in appropriate cases, adverse inferences as to the motive of the party relying on that evidence or argument. But if the evidence or argument is relevant to the issues to be decided, it is for the parties alone to determine whether they will rely on it. And because the parties must have that freedom or privilege, a tribunal cannot apply sanctions in separate proceedings with respect to the evidence or arguments advanced, particularly not after the proceedings have been completed. Were it otherwise, there would be no finality to litigation."

    Keywords:

    admissibility of evidence; adversarial proceedings; appraisal of evidence; evidence; independence; judicial review; submissions;



  • Judgment 2916


    109th Session, 2010
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    "[P]erformance appraisal procedures must be 'both transparent and adversarial'. That is unlikely to be the case where the prescribed procedures are not observed."

    Reference(s)

    ILOAT Judgment(s): 2836

    Keywords:

    adversarial proceedings; case law; complaint allowed; complaint allowed in part; due process; organisation's duties; performance report; procedural flaw; work appraisal;

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Last updated: 07.06.2019 ^ top