## Administrative Tribunal of the International Monetary Fund — Introduction, proceedings and admissibility considerations (Judicial meetings held November 14 and 16, 2007) ## Source details **Canonical URL:** [Administrative Tribunal of the International Monetary Fund — Introduction, proceedings and admissibility considerations (Judicial meetings held November 14 and 16, 2007)](https://www.imf.org/-/media/files/imfat/j2007-7.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2007-7.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2007-7.pdf.json) --- ### Procedural history and motion for summary dismissal - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot, Associate Judges. - Meetings held: November 14 and 16, 2007. - Key filing dates and procedural steps: - April 19, 2007: Mr. “N” filed his Application with the Administrative Tribunal. - April 20, 2007: Registrar advised deficiencies under Rule VII, para. 6; Applicant given fifteen days to correct. - June 1, 2007: Applicant’s supplemented Application filed; transmitted to Respondent on June 4, 2007. - June 29, 2007: Registrar circulated notice within the Fund pursuant to Rule IV, para. (f). - July 5, 2007: Respondent filed a Motion for Summary Dismissal pursuant to Rule XII; Motion transmitted to Applicant same day. - August 14, 2007 (attachments received August 17, 2007): Applicant filed an Objection; President accepted Objection as timely on August 28, 2007 and required supplemental documents and certified English translations. - September 19, 2007: Untranslated non-English documents in Applicant’s Objection excluded from the record; Applicant’s Objection (excluding those documents) transmitted to the Fund. - September 19, 2007: Application, Fund’s Motion for Summary Dismissal and Applicant’s Objection transmitted to Ms. “M” and Dr. “M” pursuant to Rule XIV, para. 4; no response received. - Tribunal decision on procedure: - The Tribunal decided not to hold oral proceedings on the Motion for Summary Dismissal. ### Factual background - Prior judgment: IMFAT Judgment No. 2006-6 (November 29, 2006) in Ms. “M” and Dr. “M”. - Fund action implementing that judgment: - By letter of January 17, 2007 the Fund’s Human Resources Department notified Applicant that “... as required by the Administrative Tribunal’s Judgment No. 2006-6, November 29, 2006, a 16 2/3 percent deduction shall be made from your monthly pension payments, with effect from the January [31,] 2007 payment.” - Applicant asserts, and the Fund does not dispute, that monthly deductions have been and continue to be made in accordance with the Tribunal’s Judgment. ### Channels of administrative review - Finding: - There are no channels of administrative review applicable to Applicant’s challenge to the Fund’s compliance with Judgment No. 2006-6. ### Parties’ principal contentions - Applicant’s contentions on the merits: - The Tribunal’s Judgment was ultra vires and therefore null and void. - The States Parties to the Fund’s Articles of Agreement have not conferred upon the Fund any jurisdiction to adjudicate with respect to a person or thing; the Executive Board did not envisage third-party private law claims against present or former staff members. - No Judgment may issue that can affect, modify or annul any rights and obligations pertaining to Applicant under the Staff Retirement Plan. - The Tribunal’s Judgment cannot be binding on Applicant because neither he nor his property was subject to any compulsory jurisdiction of the Tribunal; the Tribunal usurped power beyond its competence and cannot amend the Articles of Agreement. - Seizure by the Managing Director of Applicant’s property, i.e., his accrued or vested rights under the Staff Retirement Plan, was an illegal administrative act. - There has been no final resolution of the matter of paternity by any competent administrative or judicial authorities. - Applicant faces multiple liabilities on the same alleged debt. - Applicant seeks relief: - that the Fund cease and desist from taking measures in aid of recognition and execution of the claims referred to in the notification; and - compensation, including immediate reversal of any deductions heretofore made pursuant to the notification. - Respondent’s contentions on admissibility: - The Application is clearly inadmissible for lack of jurisdiction ratione materiæ: neither the Tribunal’s Judgment in Ms. “M” and Dr. “M”, nor the Fund’s faithful implementation of that Judgment, is an “administrative act” subject to review under Article II of the Tribunal Statute; the Fund’s implementation of the Tribunal’s Judgment is a purely ministerial act. - The contested decision of the Fund is a direct and mandatory consequence of the Tribunal’s Judgment and, as Applicant is not alleging any error in the computation of the amount to be deducted, Applicant is in effect seeking review of the Judgment itself. - Decisions of the Tribunal are judicial in nature and thus inherently not “decisions” taken by the Fund in the administration of the staff. - Judgments of the Tribunal are final and without appeal, and the Fund is accordingly bound to give effect to Judgment No. 2006-6. - Under general principles of administrative law, Applicant is bound by the Tribunal’s Judgment, having waived his opportunity to present his views on the claims when he declined the Tribunal’s invitation to participate as an intervenor. - Applicant’s contentions on admissibility: - The Application is not a collateral attack against Judgment No. 2006-6 but against the decision of the Fund to recognize and enforce it. - The Fund’s contention that the Managing Director acted in a ministerial capacity to implement the Tribunal’s Judgment and seize Applicant’s property is unfounded. - Applicant has not submitted to the jurisdiction asserted by the Tribunal; only those who have had recourse to it are precluded from challenging consequences attributed by the Fund to the Tribunal’s Judgments. - Under the Tribunal’s Statute, the Judgment is not “binding” and accordingly has no preclusive effect to bar review by the Tribunal of the Managing Director’s decision to implement it. - The Tribunal’s Statute does not vest any powers of implementation or enforcement in the Tribunal against the property and assets of the Fund, or against other persons or things in the territories of its members; the Managing Director is charged with any implementation of the Tribunal’s Judgments. - The Managing Director abused the discretion vested in him under the Articles of Agreement by complying with an irregular Judgment, trespassing into the domestic jurisdiction of members. ### Consideration of admissibility and applicable law - Legal framework: - Article II of the Tribunal’s Statute sets the Tribunal’s jurisdiction ratione materiæ: - The Tribunal shall be competent to pass judgment upon any application: - a. by a member of the staff challenging the legality of an administrative act adversely affecting him; or - 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. - For purposes of this Statute: the expression ‘administrative act’ shall mean any individual or regulatory decision taken in the administration of the staff of the Fund; ... - Article XIII, Section 2 of the Tribunal’s Statute: “Judgments shall be final, subject to Article XVI and Article XVII, and without appeal.” - Findings and legal conclusions: - The Tribunal is not a mere committee of the Board of Governors; it renders Judgments binding on the parties. - The Fund does not have discretion to decline to implement the Tribunal’s Judgments, indicating that such implementation is not an “administrative act” as contemplated by Article II. - Applicant’s challenge to the Fund’s notification and subsequent acts of deduction is tantamount to a challenge to the validity of the Judgment itself. - Given the statutory provision that Judgments of the Tribunal are final and without appeal, a challenge to the validity of a Judgment of the Tribunal is inadmissible. - The Tribunal has repeatedly recognized the finality of its Judgments and that interpretation requests cannot be used to amend or challenge the legality of a final Judgment. - The finality principle codified in Article XIII, Section 2 implements the principle of res judicata, preventing relitigation of claims already adjudicated and promoting judicial economy and certainty among the parties. - As a party to the Tribunal’s Judgment, the Fund is bound to implement Judgment No. 2006-6. ### Participation, invitation, and election to remain non-party - Timeline and actions: - August 23, 2004: Tribunal invited Mr. “N” to participate as an Intervenor and provided copies of Ms. “M”’s and Dr. “M”’s Application and the Fund’s Answer; submission due September 22, 2004. - Mr. “N” did not file a submission and on September 27, 2004 informed the Registrar by telephone that he declined the invitation to participate. - September 29, 2004: Registrar notified the parties of Mr. “N”’s declination. - Mr. “N” indicated he might submit a request under Rule XV to appear as amicus curiæ, but did not submit such a request. - Tribunal observation: - The Tribunal concluded that “Mr. ‘N’ knowingly relinquished this opportunity [to participate as an Intervenor] after being notified of the proceedings and receiving Ms. ‘M’’s and Dr. ‘M’’s Application and the Fund’s Answer, which fully set out the issues of the case.” ### Record and prior administrative proceedings - Finding: - In the Administration Committee of the Staff Retirement Plan, “Mr. ‘N’ has had a full measure of opportunity to present his views, providing opportunities for settlement of the dispute and building an evidentiary record. The Tribunal has before it the extensive record of the proceedings in the Administration Committee on the 2003 request, including voluminous submissions by Mr. ‘N’.” - Legal point: - The fact that Applicant was not a party to the Tribunal’s Judgment, and deliberately chose not to be, does not prevent the Judgment from affecting his entitlements in the Staff Retirement Plan, in the administration of which the Tribunal has jurisdiction. (Statute, Article II (1) (b); Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund, p. 13; Staff Retirement Plan Section 7.2 (b).) ### Legal precedent and Fund internal law on retirement benefits - Precedent: - The Tribunal affirmed the essential validity of the Fund’s internal law provision in Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2001-2 (November 20, 2001). (Mr. “P” (No. 2), para. 153.) - Principle articulated: - The Tribunal observed that “[a]s an element of its employment policy, the Fund may condition receipt of retirement benefits on compliance with valid orders for family support or division of marital property:” and explained that “[t]he order is given effect only after procedures are followed, within the Fund, allowing for consideration of the views of the affected parties. A decision is then rendered by the Administration Committee, subject to appeal to the Administrative Tribunal.” (Mr. “P” (No. 2), para. 130.) ### Grounds for dismissal of Applicant’s challenge and Decision - Grounds for dismissal: - Applicant does not challenge an “administrative act” of the Fund, as that term is employed in the Statute of the Tribunal. - The thrust of Applicant’s challenge is to the legal force of a Judgment of the Administrative Tribunal—challenging the character of any Judgment of the Tribunal as “final ... and without appeal.” Such claims are “clearly inadmissible” and subject to summary dismissal. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Motion for Summary Dismissal of the Application is granted. - Signatures on the Judgment: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Location and date of decision: Washington, D.C., November 16, 2007. *Administrative Tribunal of the International Monetary Fund, Judgment (Washington, D.C., November 16, 2007).* ### Introduction ### Introduction ### Procedural history and motion for summary dismissal - The Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met on November 14 and 16, 2007 to adjudge the Motion for Summary Dismissal of the case brought against the International Monetary Fund by Mr. “N”, a former staff member of the Fund. - On April 19, 2007, Mr. “N” filed his Application with the Administrative Tribunal. - On April 20, 2007, pursuant to Rule VII, para. 6, the Registrar advised Mr. “N” that the Application did not fulfill all requirements and gave him fifteen days to correct deficiencies; Applicant’s supplemented Application was filed on June 1, 2007 and transmitted to Respondent on June 4, 2007. - On June 29, 2007, pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application. - On July 5, 2007, pursuant to Rule XII, Respondent filed a Motion for Summary Dismissal; the Motion was transmitted to Applicant the same day. - On August 14, 2007 (attachments received August 17, 2007), Applicant filed an Objection to the Motion; on August 28, 2007 the President accepted the Objection as timely and required supplementation to attach documents and provide certified English translations where necessary. - On September 19, 2007, untranslated non-English documents in Applicant’s Objection were excluded from the record; Applicant’s Objection (excluding those documents) was transmitted to the Fund. - On September 19, 2007, the Application, the Fund’s Motion for Summary Dismissal and Applicant’s Objection were transmitted to Ms. “M” and Dr. “M” pursuant to Rule XIV, para. 4, to offer them the opportunity to present Comments; no response was received from Ms. “M” and Dr. “M”. - The Tribunal decided not to hold oral proceedings on the Motion for Summary Dismissal. ### Factual background - Following IMFAT Judgment No. 2006-6 (November 29, 2006) in Ms. “M” and Dr. “M”, by letter of January 17, 2007 the Fund’s Human Resources Department notified Applicant that “... as required by the Administrative Tribunal’s Judgment No. 2006-6, November 29, 2006, a 16 2/3 percent deduction shall be made from your monthly pension payments, with effect from the January [31,] 2007 payment.” - Applicant asserts, and the Fund does not dispute, that monthly deductions have been and continue to be made in accordance with the Tribunal’s Judgment. ### Channels of administrative review - There are no channels of administrative review applicable to Applicant’s challenge to the Fund’s compliance with Judgment No. 2006-6. ### Parties’ principal contentions - Applicant’s contentions on the merits: - The Tribunal’s Judgment was ultra vires and therefore null and void. - The States Parties to the Fund’s Articles of Agreement have not conferred upon the Fund any jurisdiction to adjudicate with respect to a person or thing; the Executive Board did not envisage third-party private law claims against present or former staff members. - No Judgment may issue that can affect, modify or annul any rights and obligations pertaining to Applicant under the Staff Retirement Plan. - The Tribunal’s Judgment cannot be binding on Applicant because neither he nor his property was subject to any compulsory jurisdiction of the Tribunal; the Tribunal usurped power beyond its competence and cannot amend the Articles of Agreement. - Seizure by the Managing Director of Applicant’s property, i.e., his accrued or vested rights under the Staff Retirement Plan, was an illegal administrative act. - There has been no final resolution of the matter of paternity by any competent administrative or judicial authorities. - Applicant faces multiple liabilities on the same alleged debt. - Applicant seeks relief: - that the Fund cease and desist from taking measures in aid of recognition and execution of the claims referred to in the notification; and - compensation, including immediate reversal of any deductions heretofore made pursuant to the notification. - Respondent’s contentions on admissibility: - The Application is clearly inadmissible for lack of jurisdiction ratione materiæ: neither the Tribunal’s Judgment in Ms. “M” and Dr. “M”, nor the Fund’s faithful implementation of that Judgment, is an “administrative act” subject to review under Article II of the Tribunal Statute; the Fund’s implementation of the Tribunal’s Judgment is a purely ministerial act. - The contested decision of the Fund is a direct and mandatory consequence of the Tribunal’s Judgment and, as Applicant is not alleging any error in the computation of the amount to be deducted, Applicant is in effect seeking review of the Judgment itself. - Decisions of the Tribunal are judicial in nature and thus inherently not “decisions” taken by the Fund in the administration of the staff. - Judgments of the Tribunal are final and without appeal, and the Fund is accordingly bound to give effect to Judgment No. 2006-6. - Under general principles of administrative law, Applicant is bound by the Tribunal’s Judgment, having waived his opportunity to present his views on the claims when he declined the Tribunal’s invitation to participate as an intervenor. - Applicant’s contentions on admissibility: - The Application is not a collateral attack against Judgment No. 2006-6 but against the decision of the Fund to recognize and enforce it. - The Fund’s contention that the Managing Director acted in a ministerial capacity to implement the Tribunal’s Judgment and seize Applicant’s property is unfounded. - Applicant has not submitted to the jurisdiction asserted by the Tribunal; only those who have had recourse to it are precluded from challenging consequences attributed by the Fund to the Tribunal’s Judgments. - Under the Tribunal’s Statute, the Judgment is not “binding” and accordingly has no preclusive effect to bar review by the Tribunal of the Managing Director’s decision to implement it. - The Tribunal’s Statute does not vest any powers of implementation or enforcement in the Tribunal against the property and assets of the Fund, or against other persons or things in the territories of its members; the Managing Director is charged with any implementation of the Tribunal’s Judgments. - The Managing Director abused the discretion vested in him under the Articles of Agreement by complying with an irregular Judgment, trespassing into the domestic jurisdiction of members. ### Consideration of admissibility and applicable law - The Motion for Summary Dismissal raises whether the Application is “clearly inadmissible” for failure to challenge an “administrative act” within the meaning of Article II of the Tribunal’s Statute. - Article II of the Statute sets the Tribunal’s jurisdiction ratione materiæ: - The Tribunal shall be competent to pass judgment upon any application: - a. by a member of the staff challenging the legality of an administrative act adversely affecting him; or - 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. - For purposes of this Statute: the expression ‘administrative act’ shall mean any individual or regulatory decision taken in the administration of the staff of the Fund; ... - The Tribunal is not a mere committee of the Board of Governors; it renders Judgments binding on the parties. The Fund does not have discretion to decline to implement the Tribunal’s Judgments, indicating that such implementation is not an “administrative act” as contemplated by Article II. - Applicant’s challenge to the Fund’s notification and subsequent acts of deduction is tantamount to a challenge to the validity of the Judgment itself; given the Statutory provision that Judgments of the Tribunal are final and without appeal, a challenge to the validity of a Judgment of the Tribunal is inadmissible. - Article XIII, Section 2 of the Tribunal’s Statute provides: “Judgments shall be final, subject to Article XVI and Article XVII, and without appeal.” - The Tribunal has repeatedly recognized the finality of its Judgments and that interpretation requests cannot be used to amend or challenge the legality of a final Judgment. - The finality principle codified in Article XIII, Section 2 implements the principle of res judicata, preventing relitigation of claims already adjudicated and promoting judicial economy and certainty among the parties. - As a party to the Tribunal’s Judgment, the Fund is bound to implement Judgment No. 2006-6. *Administrative Tribunal of the International Monetary Fund — Introduction, proceedings and admissibility considerations (Judicial meetings held November 14 and 16, 2007).* ### 20. Mr. “N” deliberately elected to retain non-party status vis-à-vis the proceedings in the ### 20. Mr. “N” deliberately elected to retain non-party status vis-à-vis the proceedings in the Administrative Tribunal. ### Participation, invitation, and election to remain non-party - On August 23, 2004, the Tribunal invited Mr. “N” to participate as an Intervenor and provided him with copies of Ms. “M”’s and Dr. “M”’s Application and the Fund’s Answer; his submission was due September 22, 2004. (Ms. “M” and Dr. “M”, para. 15 and note 11.) - Mr. “N” did not file a submission and on September 27, 2004 informed the Registrar by telephone that he declined the invitation to participate. The Registrar notified the parties by letter of September 29, 2004. (Ms. “M” and Dr. “M”, para. 15 and note 11.) - Mr. “N” indicated that he might decide to submit a request under Rule XV to appear as amicus curiæ, but he did not submit such a request. (Ms. “M” and Dr. “M”, note 11.) - The Tribunal concluded that “Mr. ‘N’ knowingly relinquished this opportunity [to participate as an Intervenor] after being notified of the proceedings and receiving Ms. ‘M’’s and Dr. ‘M’’s Application and the Fund’s Answer, which fully set out the issues of the case.” (Ms. “M” and Dr. “M”, para. 99.) ### Record and prior administrative proceedings - The Tribunal observed that, in the Administration Committee of the Staff Retirement Plan, “Mr. ‘N’ has had a full measure of opportunity to present his views, providing opportunities for settlement of the dispute and building an evidentiary record. The Tribunal has before it the extensive record of the proceedings in the Administration Committee on the 2003 request, including voluminous submissions by Mr. ‘N’.” (Ms. “M” and Dr. “M”, para. 98.) - The fact that Applicant was not a party to the Tribunal’s Judgment, and deliberately chose not to be, does not prevent the Judgment from affecting his entitlements in the Staff Retirement Plan, in the administration of which the Tribunal has jurisdiction. (Statute, Article II (1) (b); Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund, p. 13; Staff Retirement Plan Section 7.2 (b).) ### Legal precedent and Fund internal law on retirement benefits - The Tribunal affirmed the essential validity of the Fund’s internal law provision in Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2001-2 (November 20, 2001). (Mr. “P” (No. 2), para. 153.) - The Tribunal observed that “[a]s an element of its employment policy, the Fund may condition receipt of retirement benefits on compliance with valid orders for family support or division of marital property:” and explained that “[t]he order is given effect only after procedures are followed, within the Fund, allowing for consideration of the views of the affected parties. A decision is then rendered by the Administration Committee, subject to appeal to the Administrative Tribunal.” (Mr. “P” (No. 2), para. 130.) ### Grounds for dismissal of Applicant’s challenge - The Tribunal concluded that Applicant’s challenge to implementation of the Tribunal’s Judgment in Ms. “M” and Dr. “M” fails on two grounds: - Applicant does not challenge an “administrative act” of the Fund, as that term is employed in the Statute of the Tribunal. - The thrust of Applicant’s challenge is to the legal force of a Judgment of the Administrative Tribunal—challenging the character of any Judgment of the Tribunal as “final ... and without appeal.” Such claims are “clearly inadmissible” and subject to summary dismissal. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Motion for Summary Dismissal of the Application is granted. - Signatures on the Judgment: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Location and date of decision: Washington, D.C., November 16, 2007. --- _Source: https://www.imf.org/-/media/files/imfat/j2007-7.pdf_