Advice to litigants: proceedings before the Tribunal

The Registry offers below some advice on matters on which complainants and their representatives commonly want information. The main topics are:
(A) the time limits,
(B) the written submissions (how to file complaints),
(C) the case law,
(D) hearings,
(E) costs,
(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.

 

A. Time limits

1. There are two sorts of time limits: 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 dispatch 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 dispatch. If that date is in doubt, it is the date of delivery at the Registry 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 completed complaint form properly signed and, if it exists, provide a copy of the impugned decision. The Registrar may then ask the complainant to correct the complaint by supplying the remaining papers within the time-limit of 30 days provided for in Article 6(2) of the Rules. This time-limit cannot normally be extended.

4. The Registrar notifies the complainant, ordinarily by post, of the time limit granted for correcting a complaint (Article 6(2) of the Rules) and for entering a rejoinder or further brief (Article 9 of the Rules).

5. The time limit starts on the day following the date of receipt of the Registrar’s letter setting it. The date of receipt is the date entered in the certificate of delivery (the orange card which the postal services will to return to the Registry) or the date of an official email sent by the Registry. 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 to the Registry at no later date.

The parties are usually asked to provide an electronic version of all submissions, in addition to the hard copy. However, for the purpose of determining whether a document has been filed within the specified time limit, it is always the date of dispatch of the hard copy that counts, not that of the electronic copy that may be sent by e-mail [on a different date].

6. Time limits set under the Rules for submission of replies, rejoinders or surrejoinders may be extended in accordance with Article 14. An application for extension must reach the Registry, not just be sent, before the time limit is to expire and should be delivered preferably at least 10 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 e-mail to TRIB@ilo.org. It should say when the Registrar's letter was received (in case the orange card has not yet come back to the Registry) and how much more time is needed. Proper reasons for such requests must be stated.

7. The Registrar will, but only if requested, inform the other party of the extension.

B. The written submissions

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 under 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 Annex 1 to the Rules. The electronic version of the form is available on the Tribunal's web site. 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 not acceptable. These forms can be signed either by the complainant or by a counsel, who will also attach an appropriate original written authorization given by the complainant.

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.

The appendices

4. The first appendix will be a brief in at least two main parts. One part will be a narrative account of the dispute, including references to the relevant items of evidence. The other will set out the complainant's pleas, again with references to appended items.

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 complaint form and, if more space is needed, on sheets appended between the complaint 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. 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).

10. Any text that is not in English or in French must come with a full translation into the language in which the complaint form is filled in. Anyone may do the translation - not necessarily an accredited translator - since the complainant or representative certifies its accuracy by signing the complaint form (see the signature box on page 3).

11. The papers should not be bound in covers: since the Registry 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 Registry to sort out.

Further submissions

12. The written submissions end with the defendant's surrejoinder. In forwarding it, the Registrar will state that the complainant or representative 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.

13. The application for leave to file further submissions should take the form of a letter addressed to the President or to the Registrar in a single copy and summarising the issues that the complainant wishes to address in these further submissions. The actual submissions should be filed only if and 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.

C. The case law

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 Registry 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.

D. Oral proceedings

1. The complainant may apply under point 5 of the complaint form or in the rejoinder for oral proceedings over and above the filing of written submissions.

2. As a general rule, the Tribunal will allow such applications only where the written submissions and evidence are not sufficient to enable it to rule on the issues of fact and of law that it sees as decisive.

3. Where the Tribunal does order oral proceedings 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).

E. Costs

1. There is no charge for filing a complaint, but a complainant may incur costs for the services of counsel, photocopies, typing and so on and may enter a claim for costs under point 4(a) of the complaint form.

2. An unsuccessful complainant will ordinarily get no costs. A successful one may 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.

F. Withdrawal of suit

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 time permits, find another case to put on the list.

2. An application for withdrawal must be submitted no later than the first day of the session at which the case is to be considered. Applications received after that date will not be entertained by the Tribunal and judgment will be rendered on the case.

G. Application for review

1. According to Article VI(1) of the Statute, judgments 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. Article VI(1) allows the Tribunal to consider applications for review, but according to Judgment 442 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 public delivery of the judgment.

4. Like any other complaint it must meet the formal requirements of the Rules.