Advice to litigants: proceedings before the Tribunal
The Office of the Registrar offers below some advice on matters on which complainants and their counsel commonly want information. The main topics are:
(A) the time limits,
(B) the written submissions (how to file complaints),
(C) the case law,
(F) withdrawal of suit and
(G) application for review.
In order to preserve the resources of our planet, we recommend that any photocopies of written submissions be made as double-sided copies.
1. There are two sorts of time limit: those that are set in Article VII of the Statute of the Tribunal, and those provided for in its Rules.
2. The time limits laid down in Article VII of the Statute for filing a complaint are compulsory and therefore not subject to extension. For the purpose of applying them it is the date of despatch of the complaint that is taken into account (Article 4(2) of the Rules), that is to say, the date of the postmark on the envelope or parcel. In case the postmark is illegible it is a sensible precaution to register the envelope or parcel and so get a receipt from the post office. The receipt will then serve, if need be, as evidence of the date of despatch. If that date is in doubt it is the date of delivery at the Office of the Registrar that counts.
3. If time is short and not all the papers are ready the complainant may file a complaint by sending to the Registrar, before the expiry of the time limit, preferably by post or private courier service, a single copy of the complaint form filled up in its essential points, 1 to 4. The Registrar will then ask the complainant to correct the complaint by supplying the remaining papers within the time limit of thirty days which Article 6(2) of the Rules lays down and which, as is explained in A.6 below, does allow for extension.
4. The Registrar notifies the complainant, ordinarily by post, of the time limits provided for in the Rules under Article 6(2) for correcting a complaint and under Article 9 for entering a rejoinder or further brief.
5. The time limit starts on the day following the date of receipt of the Registrar’s letter setting it. That date is entered in the certificate of delivery (the orange card which the post is to return to the Office of the Registrar). The time limit expires at the end of the last of the days allotted; so the envelope or parcel containing the submissions must be sent off to the Office of the Registrar at no later date.
6. A time limit set under the Rules may be extended in accordance with Article 14. An application for extension must reach the Office of the Registrar, not just be sent off, before the time limit is to expire and should be delivered preferably at least ten days before. It must be addressed in writing to the President or to the Registrar and sent either by normal mail in a single copy or by fax or by e-mail. It should say when the Registrar's letter was received (in case the orange card has not yet come back to the Office of the Registrar), how much more time is needed, and why.
7. The Registrar will, but only if requested, inform the other party of the extension.
1. There are usually four briefs in a case: the complaint, the defendant's reply, the complainant's rejoinder and the defendant's surrejoinder. Further submissions may be made only as explained in B.13 and 14 below.
The complaint form
2. The complaint form is the one provided for in Article 6(1)(a) of the Rules and the Schedule. It may be reproduced by any appropriate means. The complainant or counsel will fill it up and send or deliver it to the Registrar in six copies. All the information required should be given in the form itself. There should be no unexplained blanks. Where relevant, the words "Not applicable" may be entered. Each form must be signed by hand on page 3: a photocopied signature is worthless.
3. To each copy of the form will be appended a copy of the brief and a set of the papers listed. In other words, all the papers must be filed sixfold: the original set plus the five copies required by Article 6(1)(d) of the Rules.
4. The first appendix will be a brief in at least two main parts. One part will be a narrative account of the dispute, comprising references to the relevant items of evidence. The other will set out the complainant's pleas, again with references to appended items. The brief should be as short as lucidity allows and no longer than the complexity of the issues demands. The text should be easily legible, preferably double-spaced with wide margins.
5. All the other appendices should be cited in the brief. Every text cited in the brief should be appended. No item should be appended without some explanation of its relevance: it is poor pleading to append an item without saying what allegation or what argument it is supposed to support. If a brief refers to an item already filed by either party there is no need to supply another copy.
6. The items of evidence will be set out in a single list on page 3 of the form and, if more space is needed, on sheets appended between the form and the brief.
7. Every single item must be entered in the list and given a number. So far as possible appendices should be in chronological order. Each one must be identified by its number, which it is helpful to put on a dividing page or page-marker. Any reference in the brief to an item of evidence must cite the number given to it in the list.
8. Where the decision impugned is an express one the text must be appended. Where it is an implied one the text of the complainant's claims as notified to the organisation must be supplied.
9. The complainant need not offer evidence in support of every single allegation of fact. The useful items may then get lost in a welter of papers that serve little or no purpose. If the defendant's reply challenges an allegation the complainant may offer evidence with the rejoinder.
10. Photocopies must be complete and sharply legible. If any is hard to make out, a transcript, certified to be true to the original, will be needed too. In the interest of protecting the environment, we strongly recommend the use of double-sided photocopies (recto-verso).
11. Any text that is not in English or in French must come with a full translation into the language of the pleadings. Anyone may do the translation - not necessarily an accredited translator - since the complainant or counsel certifies its accuracy by signing the complaint form: see the signature box on page 3.
12. The papers should not be bound in covers: since the Office of the Registrar uses standard folders others simply have to be removed. But the sets of papers should be collated and clearly distinct, not sent in a single mass for the Office of the Registrar to sort out.
13. The written submissions end with the defendant's surrejoinder. In forwarding it the Registrar will state that the complainant or counsel is not asked to answer. But there are two exceptions:
(1) the Tribunal or its President may order further submissions or the production or disclosure of further written evidence;
(2) the Tribunal or its President may allow an application from the complainant for leave to file further submissions. Such leave is only granted in exceptional cases and as a rule only where the surrejoinder puts forward some plea or produces some item of evidence which the complainant has not yet had the opportunity of commenting on and which the Tribunal considers material. The Tribunal will not ordinarily allow comment on issues which the complainant should have addressed in earlier submissions or which, though they may be new, the Tribunal sees as irrelevant.
14. The application for leave to file further submissions should take the form of a letter - but not an e-mail - addressed to the President or to the Registrar in a single copy and summarising the issues that they would address if leave were granted. The actual submissions would be filed only when leave has been granted. Where further submissions are allowed from the complainant the defendant will be invited to comment in a final brief. Any further submissions so allowed must be filed in six copies.
1. Few complaints are likely to push forward the frontiers of case law and most will raise issues of law of a kind that the Tribunal has already ruled on. A knowledge of precedent may help in determining whether a suit is worth pursuing and, if so, how to plead.
2. The Office of the Registrar maintains in English and in French a database on the case law known as Triblex. There is no fee. Anyone considering bringing a case to the Tribunal is advised to consult Triblex before submitting a complaint.
3. In their submissions litigants should cite the actual text of the Tribunal's judgments, not the database records.
1. The complainant may apply under point 5 of the form or in the rejoinder for hearings over and above the filing of written submissions.
2. Very seldom does the Tribunal allow applications for hearings. It is likely to allow such applications only where the written submissions and evidence do not enable it to rule on the issues of fact and of law that it sees as decisive.
3. Where the Tribunal does order hearings it is up to the parties to meet their own costs, such as the travel and other expenses of counsel and witnesses, whatever award the Tribunal may make in its judgment (see also E below).
1. There is no charge for filing a complaint, but a complainant may run up costs for the services of counsel, photocopies, typing and so on and may enter a claim for costs under point 4(a) of the form.
2. An unsuccessful complainant will ordinarily get no costs. A successful one will be awarded whatever sum the Tribunal thinks fit in the circumstances. The sum will not necessarily be as much as is claimed under point 4 of the complaint form.
1. The complainant may wish to withdraw suit either because the case has been settled out of court or for some other reason. If so, the complainant or counsel must write a letter to the President or to the Registrar as soon as possible so that the Tribunal will not waste time over the case and may, if it still can, find another to put on the list.
2. The Tribunal will entertain an application for withdrawal up to the date of signature of its judgment. That date may occur at any time in the session at which it has listed the case. Thereafter it will refuse the application and deliver judgment at the scheduled date.
1. Neither Statute nor Rules provide for the review of judgments: according to Article VI(1) of the Statute they are "final and without appeal". They are thus binding on the parties under the res judicata rule. Yet the Tribunal has a limited power of review which the case law defines. Since review is a quite exceptional process, it will exercise its power only in narrowly defined circumstances.
2. According to Judgment 442 (de Villegas v. ILO No. 4) and other rulings several pleas are inadmissible in support of an application for review: a mistake of law, mistaken appraisal of the evidence, failure to admit evidence and failure to comment on a plea. Other pleas for review may be admissible provided that they are such as to affect the Tribunal's decision: disregard of some material fact, a material error (i.e. a mistaken statement of fact as against misappraisal of the evidence), failure to rule on a claim, and the discovery of some "new" fact, i.e. one that the applicant came upon too late to cite in the original proceedings. The Tribunal will itself determine the true nature of the plea, in whatever terms the applicant may cast it.
3. Again according to precedent, an application for review must be filed within a reasonable lapse of time after the publication of the judgment.
4. Like any other complaint it must meet the formal requirements of the Rules.
5. To date the Tribunal has allowed only one application for review : see Judgment 1255 (Bansal No. 4 and Harpalani No. 4 v. WHO).