## j2015-2 - INTRODUCTION

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### Introduction
- The Administrative Tribunal of the International Monetary Fund met on November 11, 2015, composed for this case of Judge Catherine M. O’Regan, President, and Judges Jan Paulsson and Edith Brown Weiss, to adjudge the Motion for Summary Dismissal of the Application brought by Ms. Kawthar Abu Ghazaleh, a former contractual employee, against the International Monetary Fund.
- Representation:
  - Applicant represented by Mr. Peter C. Hansen, Law Offices of Peter C. Hansen, LLC.
  - Respondent represented by Ms. Diana Benoit, Senior Counsel, IMF Legal Department.
- Core procedural posture:
  - Applicant initiated arbitration under her contract and the Fund’s rules governing locally-recruited contractual employees, alleging the arbitrator in those proceedings failed to act with impartiality.
  - Applicant challenges the Fund’s refusal either to consent to a challenge to the designated arbitrator before the American Arbitration Association (AAA) or to replace the arbitrator with one mutually acceptable to the parties.
  - Applicant also challenges a “regulatory decision” of the Fund asserting the Fund’s right to rule on challenges to the Fund’s designated arbitrators.
  - Applicant does not ask the Tribunal to rule on the merits of the underlying arbitration dispute.
- Relief sought by Applicant:
  - Rescission of the Fund’s decision refusing to consent to a challenge to the designated arbitrator before the AAA;
  - An order requiring the Fund to refer that challenge to the AAA or removing the arbitrator and replacing him with an arbitrator mutually acceptable to the parties;
  - Monetary compensation for the alleged denial of her rights, and fees and costs associated with vindicating those rights.
- Respondent’s procedural motion:
  - Respondent filed a Motion for Summary Dismissal contending the Tribunal lacks jurisdiction ratione personæ and ratione materiæ over the Application of a former contractual employee challenging a decision arising in the dispute resolution process available to contractual employees.
  - A Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; the case at this stage is limited to admissibility.

### Procedure
- Key procedural timeline:
  - June 19, 2015: Applicant filed an Application with the Administrative Tribunal.
  - June 24, 2015: Application transmitted to Respondent.
  - June 30, 2015: Registrar circulated within the Fund a notice summarizing the issues raised in the Application (pursuant to Rule IV, para. (f)).
  - July 24, 2015: Respondent filed a Motion for Summary Dismissal (pursuant to Rule XII).
  - July 27, 2015: Motion transmitted to Applicant.
  - August 27, 2015: Applicant filed an Objection to the Motion (pursuant to Rule XII, para. 5), transmitted to the Fund.
- Rule XII (Summary Dismissal) provisions in the record:
  - The Tribunal may summarily dismiss the application if it is clearly inadmissible (Article X, Section 2(d) of the Statute).
  - The Fund may file such a motion within thirty days of receipt of the application; filing suspends the period for answering until the motion is acted on.
  - Requirements for attachments and transmission to the Applicant and for filing objections within thirty days are specified.
  - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests.

### Applicant’s requests (documents, oral proceedings, anonymity)
- Requests for production of documents:
  - Applicant made requests for production of documents pursuant to Rule XVII that relate to the merits (allegations of lack of impartiality).
  - The Tribunal found these document requests not pertinent to the decision on the Motion for Summary Dismissal and did not rule on them.
- Request for oral proceedings:
  - Applicant requested oral proceedings pursuant to Rule XIII for examination of witnesses; this request relates to the merits, not admissibility.
  - Applicant did not request oral proceedings for oral argument on admissibility; the Tribunal decided not to hold oral proceedings in respect of the Motion.
- Request for anonymity:
  - Applicant requested anonymity pursuant to Rule XXII, asserting privacy concerns and risk of harm to her career.
  - Rule XXII, para. 4: “The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.”
  - Tribunal practice and findings:
    - Anonymity is an exception; generally granted in cases involving alleged misconduct or matters of personal privacy such as health or family relations.
    - Protection extended where key evidence relates to assessment of an applicant’s work performance to protect candor.
    - A bare assertion that publication may harm an applicant’s career does not, by itself, justify anonymity.
    - Tribunal customarily does not name persons other than the applicant in judgments.
    - The Tribunal found the gravamen of Applicant’s complaint—denial of recourse to an impartial arbitrator—is an issue of law not bearing upon issues of personal privacy.
    - Applicant’s assertion of potential career harm was held insufficient to establish “good cause.”
    - Conclusion: Applicant has not established “good cause” for anonymity in this Judgment on admissibility.
    - Tribunal noted it would be circumspect in dissemination of personal information while giving full reasons for its decision.

### Factual background
- Employment and dispute resolution framework:
  - Applicant was employed as a locally-recruited contractual employee in one of the Fund’s overseas operations.
  - Contract term: “The terms of your employment will be based on the Fund’s internal rules, not on local labor law, and will be guided by this contract.”
  - Contract provided for dispute resolution up to and including final and binding arbitration, with procedural timelines:
    - If the Fund has failed to meet obligations and the matter cannot be resolved locally, the employee may, within 3 months of the date that the employee learned or reasonably could have learned of the alleged breach, submit a written complaint to the Director of the Human Resources Department.
    - If not resolved to the employee’s satisfaction within 45 days, the employee may appeal to arbitration by sending a written request for arbitration to the Director of the Human Resources Department within 30 days of receipt of the Director’s response.
    - Arbitration follows the Employment Arbitration Rules of the American Arbitration Association; arbitration conducted by a neutral professional arbitrator designated by the Fund; decision final and binding on both parties.
  - Contract statement: “Under your appointment, you will not be eligible for any benefits other than those in this letter and those specified in the Handbook for Locally Recruited Employees as applicable to your category of employment.”
  - Handbook for Locally-Recruited Employees (Handbook), pp. 22-23:
    - XI. DISPUTE RESOLUTION: Fund policy to provide local employees access to a fair process.
    - 11.1 Eligibility: All locally hired employees are covered by the process.
    - 11.2 Role and responsibilities: Heads of office ensure awareness; employee should exhaust informal avenues before formal process.
    - 11.3 Procedures: Employee first brings claim to Human Resources Division Chief; decision can be appealed to Director of Human Resources; once Director has reviewed and notified, that decision can be challenged through final binding arbitration; arbitrator designated by the Fund and decision reviewed in context of employee’s contract terms.
    - Handbook, p. 3: “[F]or locally recruited employees, the letter of appointment/contract is the operative document with respect to employment terms and conditions.”
- Procedural history of arbitration and challenge to arbitrator:
  - May 18, 2014: Applicant filed a Request for Arbitration.
  - A dispute arose during arbitration about the arbitrator’s impartiality.
  - April 6, 2015: Applicant’s counsel emailed the arbitrator requesting recusal as a courtesy prior to challenging continuance.
  - April 10, 2015: The Fund filed an opposition to the recusal request.
  - May 1, 2015: Applicant replied to the Fund’s opposition.
  - May 11, 2015: Arbitrator issued “Ruling on Grievant’s Motion for Recusal,” declining to recuse himself.
  - May 20-21, 2015: Applicant’s counsel sought the Fund’s consent to bring a challenge to the arbitrator before the AAA; the request was denied.
  - May 25, 2015: Applicant’s counsel asked the Managing Director for consent “(1) to have the AAA rule on the challenge, or to replace [the arbitrator] with a mutually acceptable and true neutral, such as the President of the IMF Administrative Tribunal; and (2) to have the Fund reimburse [Applicant] for the costs incurred in vindicating her rights.”
  - June 1, 2015: Fund’s General Counsel, on behalf of the Managing Director, denied the requests, asserting:
    - The arbitration process in the case is in full compliance with the terms of the contract and in line with applicable rules and best practices for due process.
    - Given the Fund’s immunities from legal process, the institution views a robust dispute resolution system as a key element of the terms and conditions of employment at the Fund.
    - The Fund has “full faith in the arbitrator’s professionalism and ability to conduct a neutral arbitration” and is committed to allowing the arbitration process to run its full course without external influence or intervention.

### Channels of administrative review
- The Tribunal found there are no channels of administrative review applicable in the circumstances under which the Application arises; the essential facts leading to its filing are set out above.

### Summary of parties’ principal contentions
- Applicant’s principal contentions (merits and admissibility):
  - Right to have an impartial arbitrator decide her employment dispute as recognized in her employment contract and international administrative law.
  - Precluding Applicant’s challenge to the arbitrator’s impartiality deprived Applicant of that right.
  - Permitting the opposing party or the arbitrator to decide impartiality violates due process and AAA rules, which reserve challenges for the AAA.
  - The Tribunal may remove the arbitrator on grounds of conflict of interest and bias.
  - Relief sought includes rescission of the Fund’s decision, referral to the AAA or replacement of the arbitrator, consultation to appoint a mutually acceptable replacement arbitrator, evaluation of the case in original form by the new arbitrator, one year’s salary for moral and intangible damages, and reimbursement of fees and costs.
  - In her Objection, Applicant additionally seeks an award of costs for defending against the Fund’s Motion for Summary Dismissal.
- Respondent’s principal contentions on admissibility:
  - The Tribunal is a tribunal of limited jurisdiction and cannot exercise powers beyond those granted in its Statute.
  - Applicant, as a former contractual employee, is not within the Tribunal’s jurisdiction ratione personæ under Article II, Section 1(a).
  - Applicant is not within jurisdiction ratione personæ under Article II, Section 1(b) because the arbitration clause does not represent a “benefit” within the meaning of that provision.
  - The contested decision by the Fund’s General Counsel is not an “administrative act” within Article II, Section 2(a).
  - Applicant was not “adversely affected” by the contested decision, as required by Article II, Section 1.
  - Applicant has not challenged a “regulatory decision” as defined by Article II, Section 2(b).
- Applicant’s admissibility arguments in response:
  - Respondent has not shown the Application is “clearly inadmissible” under Rule XII.
  - Tribunal has jurisdiction under Article II, Section 1(b) because the arbitration procedure constituted a formal benefit, contractually promised and regulated by Fund law and policy.
  - Tribunal has jurisdiction ratione materiæ because the General Counsel’s decision was a final administrative decision on the parameters of Applicant’s benefit and adversely affected Applicant.
  - Tribunal has jurisdiction under Article II, Section 2(b) to review the asserted “regulatory decision” that Fund management may rule on challenges to unilaterally designated arbitrators.
  - Denying recourse to an impartial authority outside Fund management would deny a benefit and constitute a denial of justice.
  - Applicant asserts no mechanism other than the Tribunal to ensure her challenge to the arbitrator for bias can be raised before an impartial decision-making body.

### Consideration of admissibility (Tribunal analysis and findings)
- Central question: whether Applicant’s challenge falls within the Tribunal’s jurisdiction ratione personæ and ratione materiæ.
- Article II of the Statute sets out the Tribunal’s jurisdiction:
  - Article II, Section 1:
    - a. Tribunal competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him;
    - b. Tribunal competent to pass judgment upon any application 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.
- It is not disputed that, as a former contractual employee, Applicant may not invoke jurisdiction under Article II, Section 1(a); prior judgments have dismissed such attempts.

### Jurisdiction ratione personæ under Article II, Section 1(b)
- Issue: whether Applicant is an enrollee in a “benefit plan maintained by the Fund as employer” within Article II, Section 1(b).
- Statutory Commentary examples include the Staff Retirement Plan (SRP), the Medical Benefits Plan (MBP), and the Group Life Insurance Plan.
- Applicant’s argument:
  - She is “enrolled in a formal benefit plan (i.e. the ‘employer-promulgated [arbitration] plan’ instituted by the Fund . . . by virtue of her non-staff employment by the Fund,” a “benefit program that is organized and operated by the Fund for the benefit of [Applicant] and other members of her non-staff employee class.”
  - Cites Handbook, XI. Dispute Resolution, 11.1 Eligibility: “All locally hired employees are covered by the process which should be reflected in their contracts.”
  - Urges inclusive interpretation of “benefit plan.”
- Respondent’s argument:
  - Article II, Section 1(b) confers jurisdiction on individuals enrolled in a formal benefit plan; the arbitration provision “does not in any way resemble such a benefit plan.”
  - Invokes ejusdem generis: “other benefit plan” should include only items of the same type as retirement plans; an expansive construction would defeat the Fund’s framework of a separate dispute settlement mechanism for contractual employees.
- Tribunal’s analysis and conclusion:
  - Statutory Commentary and jurisprudence show non-staff enrollees in Fund benefit plans may be within Article II, Section 1(b), but prior cases involved plans (MBP, SRP) established principally as employment benefits for Fund staff members.
  - Ambiguity in “maintained by the Fund as employer” cannot be construed to bring within the Tribunal’s jurisdiction a challenge to the process for resolution of disputes over which the Tribunal is expressly—by Article II, Section 1(a)—denied jurisdiction.
  - Allowing Tribunal supervisory or appellate review of the dispute resolution system applicable to contractual employees would be inconsistent with the Statute’s limitations on jurisdiction ratione personæ and ratione materiæ.
  - Conclusion: Applicant’s effort to invoke jurisdiction ratione personæ pursuant to Article II, Section 1(b) fails.

### Jurisdiction ratione materiæ
- Because Applicant conceded her only possible claim to jurisdiction ratione personæ was through Article II, Section 1(b) and that claim was rejected, her contention that the complaint lies within the Tribunal’s jurisdiction ratione materiæ also fails.
- Precedent: where jurisdiction ratione personæ is conferred solely by Article II, Section 1(b), the Tribunal’s jurisdiction is narrow and limited to challenges to administrative acts taken under the applicable benefit plan and adversely affecting the applicant (see Mr. “P” (No. 2), para. 64).

### Whether the contested decision is a “regulatory decision” under Article II, Section 2(b)
- Applicant contended the General Counsel’s decision constituted a “regulatory decision” asserting Fund management’s right to rule on employee challenges to unilaterally designated arbitrators.
- Respondent maintained the General Counsel’s June 1, 2015 decision responding to Applicant’s May 25, 2015 requests does not constitute a “regulatory decision” within the Statute.
- Tribunal’s analysis and conclusion:
  - Having concluded Applicant failed to raise a complaint within its jurisdiction ratione materiæ, the Tribunal also decides Applicant failed to raise a justiciable challenge to a “regulatory decision.”
  - Statutory definitions reference “staff” employment:
    - Article II, Section 2(a): “‘administrative act’ shall mean any individual or regulatory decision taken in the administration of the staff of the Fund”
    - Article II, Section 2(b): “‘regulatory decision’ shall mean any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund”
  - The Tribunal emphasized limitations on jurisdiction ratione personæ and ratione materiæ are closely intertwined; actions concerning contractual employees are outside the Tribunal’s ratione materiæ scope.

### Jurisdictional scope and precedent (Mr. “A”)
- Mr. “A” holds that a contractual employee’s claim is barred when it falls outside both jurisdiction ratione personæ and ratione materiæ; the Fund’s decision to employ an individual as a contractual employee rather than as staff is not a “decision taken in the administration of the staff” (Article II, para. 2.a.).
- The Tribunal reiterated: international administrative tribunals are tribunals of limited jurisdiction and may not exercise powers beyond those granted by their statutes.

### Applicant’s grievance and Tribunal’s institutional concerns
- Applicant’s essential complaint: denial of recourse to an impartial decision maker.
- Alleged harms asserted by Applicant:
  - Breach of the arbitration clause of her contract.
  - Violation of general principles of international administrative law.
  - Denial of justice.
- Tribunal’s concerns:
  - The Tribunal registered “significant disquiet and concern” that the practice may leave contractual employees without judicial recourse.
  - Fund policy (Handbook) gives locally-recruited contractual employees access to a fair process; however, where Fund unilaterally appoints an arbitrator and provides no mechanism for third-party adjudication of impartiality challenges, a contractual employee lacks recourse to an independent third party.
  - The Tribunal’s view on fair arbitral systems:
    - Confidence can be engendered by ensuring arbitrators are selected by agreement between the parties, or
    - Where the Fund selects the arbitrator, by providing a mechanism for third party adjudication of challenges to the arbitrator’s impartiality.
    - “Neither mechanism exists here.”
  - The Tribunal considered this “an important matter that the Fund needs to address in order to ensure that its dispute resolution process is, as it claims, both fair and seen to be fair.”

### Conclusion and Decision
- Finding: Applicant’s challenge to an element of the dispute resolution process applicable to locally-recruited contractual employees falls outside the Tribunal’s jurisdiction ratione personæ and ratione materiæ.
- Legal consequence: Because the Tribunal may not decide claims outside its jurisdictional competence, the Application must be dismissed.
- Decision (unanimous):
  - The Motion for Summary Dismissal is granted and the Application of Ms. Abu Ghazaleh is dismissed.
  - Signatories:
    - Catherine M. O’Regan, President
    - Jan Paulsson, Judge
    - Edith Brown Weiss, Judge
    - /s/ Catherine M. O’Regan, President
    - /s/ Celia Goldman, Registrar
  - Location and date: Washington, D.C. November 11, 2015

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2015-2 (Admissibility of the Application).*

### INTRODUCTION ...........................................................................................................

### j2015-2 - INTRODUCTION ...........................................................................................................

### Introduction
- The Administrative Tribunal of the International Monetary Fund met on November 11, 2015, composed for this case, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Jan Paulsson and Edith Brown Weiss, to adjudge the Motion for Summary Dismissal of the Application brought by Ms. Kawthar Abu Ghazaleh, a former contractual employee, against the International Monetary Fund.
- Applicant was represented by Mr. Peter C. Hansen, Law Offices of Peter C. Hansen, LLC. Respondent was represented by Ms. Diana Benoit, Senior Counsel, IMF Legal Department.
- Applicant initiated arbitration proceedings under her contract and the Fund’s rules governing locally-recruited contractual employees, alleging that the arbitrator in those proceedings failed to act with impartiality.
- Before the Tribunal, Applicant contests:
  - The Fund’s decision to reject her proposals either to consent to a challenge to the designated arbitrator before the American Arbitration Association (AAA) or to replace the arbitrator with one mutually acceptable to the parties.
  - A “regulatory decision” of the Fund asserting the Fund’s right to rule on challenges to the Fund’s designated arbitrators.
- Applicant does not ask the Tribunal to rule on the merits of the underlying arbitration dispute.
- Relief sought by Applicant:
  - Rescission of the Fund’s decision refusing to consent to a challenge to the designated arbitrator before the AAA;
  - An order requiring the Fund to refer that challenge to the AAA or removing the arbitrator and replacing him with an arbitrator mutually acceptable to the parties;
  - Monetary compensation for the alleged denial of her rights, and fees and costs associated with vindicating those rights.
- Respondent filed a Motion for Summary Dismissal contending the Tribunal lacks jurisdiction ratione personæ and ratione materiæ over the Application of a former contractual employee challenging a decision arising in the dispute resolution process available to contractual employees.
- A Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; the case at this stage is limited to admissibility.

### Procedure
- Key procedural timeline:
  - June 19, 2015: Applicant filed an Application with the Administrative Tribunal.
  - June 24, 2015: Application transmitted to Respondent.
  - June 30, 2015: Registrar circulated within the Fund a notice summarizing the issues raised in the Application (pursuant to Rule IV, para. (f)).
  - July 24, 2015: Respondent filed a Motion for Summary Dismissal (pursuant to Rule XII).
  - July 27, 2015: Motion transmitted to Applicant.
  - August 27, 2015: Applicant filed an Objection to the Motion (pursuant to Rule XII, para. 5), transmitted to the Fund.
- Rule XII (Summary Dismissal) provisions reproduced in the record establish:
  - The Tribunal may summarily dismiss the application if it is clearly inadmissible (Article X, Section 2(d) of the Statute).
  - The Fund may file such a motion within thirty days of receipt of the application; filing suspends the period for answering until the motion is acted on.
  - Requirements for attachments and transmission to the Applicant and for filing objections within thirty days are specified.
  - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests.

### Applicant’s requests (documents, oral proceedings, anonymity)
- A. Requests for production of documents
  - Applicant made requests for production of documents pursuant to Rule XVII that relate to the merits (allegations of lack of impartiality).
  - The Tribunal found these document requests not pertinent to the decision on the Motion for Summary Dismissal and did not rule on them.
- B. Request for oral proceedings
  - Applicant requested oral proceedings pursuant to Rule XIII for examination of witnesses; this request relates to the merits, not admissibility.
  - Applicant did not request oral proceedings for oral argument on admissibility; the Tribunal decided not to hold oral proceedings in respect of the Motion.
- C. Request for anonymity
  - Applicant requested anonymity pursuant to Rule XXII, asserting privacy concerns and risk of harm to her career.
  - Rule XXII, para. 4: “The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.”
  - Tribunal’s established practice:
    - Anonymity is an exception; generally granted in cases involving alleged misconduct or matters of personal privacy such as health or family relations.
    - Protection extended where key evidence relates to assessment of an applicant’s work performance to protect candor.
    - A bare assertion that publication may harm an applicant’s career does not, by itself, justify anonymity.
    - Tribunal customarily does not name persons other than the applicant in judgments.
  - Tribunal’s determinations in this case:
    - The gravamen of Applicant’s complaint—denial of recourse to an impartial arbitrator—is an issue of law not bearing upon issues of personal privacy; precedent cited: Mr. E. Weisman, IMFAT Judgment No. 2014-2, para. 14.
    - Applicant’s assertion of potential career harm is insufficient to establish “good cause”; precedent cited: Weisman, para. 16; Mr. S. Ding, IMFAT Judgment No. 2009-1, para. 11.
    - Applicant’s contention that the judgment is “unlikely to name other persons involved in this case” did not change the analysis.
    - Conclusion: Applicant has not established “good cause” for anonymity in this Judgment on admissibility.
  - The Tribunal noted it would be circumspect in dissemination of personal information while giving full reasons for its decision.

### Factual background
- Employment and dispute resolution framework:
  - Applicant was employed as a locally-recruited contractual employee in one of the Fund’s overseas operations.
  - Contract term: “The terms of your employment will be based on the Fund’s internal rules, not on local labor law, and will be guided by this contract.”
  - Contract provided for dispute resolution up to and including final and binding arbitration, with procedural timelines:
    - If the Fund has failed to meet obligations and the matter cannot be resolved locally, the employee may, within 3 months of the date that the employee learned or reasonably could have learned of the alleged breach, submit a written complaint to the Director of the Human Resources Department.
    - If not resolved to the employee’s satisfaction within 45 days, the employee may appeal to arbitration by sending a written request for arbitration to the Director of the Human Resources Department within 30 days of receipt of the Director’s response.
    - Arbitration follows the Employment Arbitration Rules of the American Arbitration Association; arbitration conducted by a neutral professional arbitrator designated by the Fund; decision final and binding on both parties.
  - Contract statement: “Under your appointment, you will not be eligible for any benefits other than those in this letter and those specified in the Handbook for Locally Recruited Employees as applicable to your category of employment.”
  - Handbook for Locally-Recruited Employees (Handbook), pp. 22-23:
    - XI. DISPUTE RESOLUTION: Fund policy to provide local employees access to a fair process.
    - 11.1 Eligibility: All locally hired employees are covered by the process.
    - 11.2 Role and responsibilities: Heads of office ensure awareness; employee should exhaust informal avenues before formal process.
    - 11.3 Procedures: Employee first brings claim to Human Resources Division Chief; decision can be appealed to Director of Human Resources; once Director has reviewed and notified, that decision can be challenged through final binding arbitration; arbitrator designated by the Fund and decision reviewed in context of employee’s contract terms.
    - Handbook, p. 3: “[F]or locally recruited employees, the letter of appointment/contract is the operative document with respect to employment terms and conditions.”
- Procedural history of arbitration and challenge to arbitrator:
  - May 18, 2014: Applicant filed a Request for Arbitration.
  - A dispute arose during arbitration about the arbitrator’s impartiality.
  - April 6, 2015: Applicant’s counsel emailed the arbitrator requesting recusal as a courtesy prior to challenging continuance.
  - April 10, 2015: The Fund filed an opposition to the recusal request.
  - May 1, 2015: Applicant replied to the Fund’s opposition.
  - May 11, 2015: Arbitrator issued “Ruling on Grievant’s Motion for Recusal,” declining to recuse himself.
  - May 20-21, 2015: Applicant’s counsel sought the Fund’s consent to bring a challenge to the arbitrator before the AAA; the request was denied.
  - May 25, 2015: Applicant’s counsel asked the Managing Director for consent “(1) to have the AAA rule on the challenge, or to replace [the arbitrator] with a mutually acceptable and true neutral, such as the President of the IMF Administrative Tribunal; and (2) to have the Fund reimburse [Applicant] for the costs incurred in vindicating her rights.”
  - June 1, 2015: Fund’s General Counsel, on behalf of the Managing Director, denied the requests, asserting:
    - The arbitration process in the case is in full compliance with the terms of the contract and in line with applicable rules and best practices for due process.
    - Given the Fund’s immunities from legal process, the institution views a robust dispute resolution system as a key element of the terms and conditions of employment at the Fund.
    - The Fund has “full faith in the arbitrator’s professionalism and ability to conduct a neutral arbitration” and is committed to allowing the arbitration process to run its full course without external influence or intervention.

### Channels of administrative review
- The Tribunal found there are no channels of administrative review applicable in the circumstances under which the Application arises; the essential facts leading to its filing are set out above.

### Summary of parties’ principal contentions (introductory)
- The record sets out parties’ principal contentions to be adjudicated on admissibility and jurisdictional grounds:
  - Applicant’s contentions (on the merits and on admissibility) and Respondent’s contentions on admissibility are identified for the Tribunal’s consideration (headings follow in the full text).
  - The Fund’s central admissibility contention is lack of jurisdiction ratione personæ and ratione materiæ over the Application of a former contractual employee challenging a decision arising in the contractual dispute resolution process.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2015-2 (Admissibility of the Application).*

### 26. The parties’ principal arguments as presented by Applicant in her Application and her

### 26. The parties’ principal arguments as presented by Applicant in her Application and her

### A. Applicant’s contentions on the merits
- Applicant has a right to have an impartial arbitrator decide her employment dispute with the Fund, as recognized in her employment contract and as a fundamental tenet of international administrative law. By precluding Applicant’s challenge to the impartiality of the arbitrator, the Fund has deprived Applicant of that fundamental right.
- Permitting either the opposing party or the arbitrator himself to decide on his impartiality violates fundamental principles of due process, as well as AAA rules, which apply by reason of Applicant’s contract and explicitly reserve challenges for the AAA to decide.
- The Tribunal may remove the arbitrator on grounds of conflict of interest and bias.
- Applicant seeks as relief:
  - rescission of the Fund’s decision to prevent her access to an impartial authority outside the Fund to hear her challenge to the arbitrator;
  - an order requiring the Fund to refer the challenge to the AAA or an order rescinding the Fund’s designation of the arbitrator and requiring his removal from the case;
  - if the arbitrator is replaced with a new arbitrator, an order obliging the Fund to consult with Applicant to appoint a mutually acceptable replacement arbitrator;
  - an order that the case be evaluated on its merits by the new arbitrator in its original form;
  - one year’s salary for moral and intangible damages; and
  - reimbursement of fees and costs.
- In her Objection, Applicant additionally seeks an award of costs for defending against the Fund’s Motion for Summary Dismissal.

### B. Respondent’s contentions on admissibility
- The Tribunal is a tribunal of limited jurisdiction and cannot exercise powers beyond those granted in its Statute.
- As a former contractual employee of the Fund, Applicant is not within the Tribunal’s jurisdiction ratione personæ, as prescribed by Article II, Section 1(a) of the Statute.
- Applicant is not within the Tribunal’s jurisdiction ratione personæ as prescribed by Article II, Section 1(b), which applies in cases brought “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.” The arbitration clause of Applicant’s employment contract does not represent a “benefit” within the meaning of this provision.
- The subject matter of Applicant’s complaint is not within the Tribunal’s jurisdiction ratione materiæ. The contested decision by the Fund’s General Counsel is not an “administrative act” of the Fund within the meaning of Article II, Section 2(a).
- Applicant was not “adversely affected” by the contested decision, as required by Article II, Section 1 of the Statute in order to bring an Application to the Tribunal.
- Applicant has not challenged a “regulatory decision” as defined by Article II, Section 2(b).

### C. Applicant’s contentions on admissibility
- Respondent has not shown that the Application is “clearly inadmissible” and therefore it should not be summarily dismissed pursuant to Rule XII.
- The Tribunal has jurisdiction over the Application under Article II, Section 1(b) of the Tribunal’s Statute, which provides for jurisdiction over claims brought “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.” The arbitration procedure constituted a formal benefit, contractually promised to Applicant and regulated by Fund law and policy. The Tribunal may rule on the scope and implementation of that benefit.
- The Tribunal has jurisdiction ratione materiæ over the Application. The General Counsel’s decision was a final administrative decision by the Fund on the parameters of Applicant’s benefit, and Applicant has been “adversely affected” by that decision.
- The Tribunal additionally has jurisdiction pursuant to Article II, Section 2(b) to review the “regulatory decision” by which the Fund asserts a right of Fund management to rule on employee challenges to the Fund’s unilaterally designated arbitrators.
- Denying recourse to raise a challenge before an impartial authority outside Fund management would deny a benefit and constitute a denial of justice.
- Applicant has no mechanism other than the Tribunal to ensure that her challenge to the arbitrator for bias can be raised before an impartial decision-making body.

### Consideration of the admissibility of the Application (Tribunal analysis and findings)
- Applicant is a former contractual employee of the Fund seeking to challenge a decision relating to pending arbitration proceedings arising within the dispute resolution process available to the Fund’s contractual employees. The central question is whether Applicant’s challenge falls within the Tribunal’s jurisdiction ratione personæ and ratione materiæ.
- Article II of the Statute sets out the Tribunal’s jurisdiction:
  - Article II, Section 1:
    - a. The Tribunal shall be competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him;
    - b. The Tribunal shall be competent to pass judgment upon any application 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.
- It is not disputed that, as a former contractual employee of the Fund, Applicant may not invoke the Tribunal’s jurisdiction ratione personæ pursuant to Article II, Section 1(a). The Tribunal has previously dismissed applications by contractual employees seeking to be categorized as staff members (see Mr. “A”, Applicant v. International Monetary Fund, IMFAT Judgment No. 1999-1).
- The Statutory Commentary indicates that persons employed under contract to the Fund would not have access to the Tribunal; the drafters recognized a separate dispute settlement mechanism for contractual employees.

### A. Jurisdiction ratione personæ under Article II, Section 1(b)
- Issue: whether Applicant is an enrollee in a “benefit plan maintained by the Fund as employer” within Article II, Section 1(b).
- Statutory Commentary examples (p. 13) include the Staff Retirement Plan (SRP), the Medical Benefits Plan (MBP), and the Group Life Insurance Plan; the Commentary states such individuals would be entitled to assert claims only with respect to decisions arising under or concerning the Fund's retirement or benefit plans.
- Applicant’s position:
  - She is “enrolled in a formal benefit plan (i.e. the ‘employer-promulgated [arbitration] plan’ instituted by the Fund . . . by virtue of her non-staff employment by the Fund,” a “benefit program that is organized and operated by the Fund for the benefit of [Applicant] and other members of her non-staff employee class.”
  - Cites Handbook, XI. Dispute Resolution, 11.1 Eligibility: “All locally hired employees are covered by the process which should be reflected in their contracts.”
  - Notes Statute does not define “benefit plan” and argues for an inclusive interpretation.
- Respondent’s position:
  - Article II, Section 1(b) confers jurisdiction on individuals enrolled in a formal benefit plan; the arbitration provision in Applicant’s employment contract “does not in any way resemble such a benefit plan.”
  - Invokes ejusdem generis: “other benefit plan” should be interpreted to include only items of the same type as retirement plans; an expansive construction would defeat the Fund’s framework of a separate dispute settlement mechanism for contractual employees.
- Tribunal’s analysis and conclusion:
  - The Statutory Commentary and Tribunal jurisprudence show non-staff enrollees in Fund benefit plans may be within Article II, Section 1(b), but prior cases involved plans (MBP, SRP) established principally as employment benefits for Fund staff members.
  - Applicant seeks to invoke jurisdiction over a dispute resolution process adopted exclusively for non-staff employees; the Tribunal finds ambiguity in “maintained by the Fund as employer” cannot be construed to bring within the Tribunal’s jurisdiction a challenge to the process for resolution of disputes over which the Tribunal is expressly—by Article II, Section 1(a)—denied jurisdiction.
  - Allowing the Tribunal to perform supervisory or appellate review of the dispute resolution system applicable to contractual employees would be inconsistent with the Statute’s limitations on jurisdiction ratione personæ and ratione materiæ.
  - Conclusion: Applicant’s effort to invoke the Tribunal’s jurisdiction ratione personæ pursuant to Article II, Section 1(b) fails.

### B. Jurisdiction ratione materiæ
- Given Applicant conceded her only possible claim to the Tribunal’s jurisdiction ratione personæ was through Article II, Section 1(b), and that claim was rejected, her contention that the complaint lies within the Tribunal’s jurisdiction ratione materiæ also fails.
- Precedent: where jurisdiction ratione personæ is conferred solely by Article II, Section 1(b), the Tribunal’s jurisdiction is narrow and limited to challenges to administrative acts taken under the applicable benefit plan and adversely affecting the applicant (see Mr. “P” (No. 2), para. 64).

### C. Whether the contested decision is a “regulatory decision” under Article II, Section 2(b)
- Applicant contends the General Counsel’s decision “in its breadth also constituted a ‘regulatory decision’ asserting a right on the part of the Fund’s management to rule on employee challenges to the Fund’s unilaterally designated arbitrators.”
- Respondent maintains the General Counsel’s decision of June 1, 2015, responding to Applicant’s requests of May 25, 2015, does not constitute a “regulatory decision” within the terms of the Statute.
- Tribunal’s analysis and conclusion:
  - Having concluded Applicant failed to raise a complaint within its jurisdiction ratione materiæ, the Tribunal also decides Applicant failed to raise a justiciable challenge to a “regulatory decision.”
  - Statutory definitions expressly reference “staff” employment:
    - Article II, Section 2(a): “‘administrative act’ shall mean any individual or regulatory decision taken in the administration of the staff of the Fund”
    - Article II, Section 2(b): “‘regulatory decision’ shall mean any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund”
  - The Tribunal has emphasized the limitations on jurisdiction ratione personæ and ratione materiæ are closely intertwined; actions constituting “administrative acts” are defined as restricted to those taken in the administration of the “staff.” Fund actions taken with respect to contractuals are outside the scope of the Tribunal’s jurisdiction ratione materiæ.

*Source: IMF Administrative Tribunal document j2015-2, section 26–46.*

### 51.  In Mr. “A”, the Tribunal made clear that the applicant’s claim was barred not only because

### j2015-2 - 51.  In Mr. “A”, the Tribunal made clear that the applicant’s claim was barred not only because

### Jurisdictional scope and precedent (Mr. “A”)
- The Tribunal in Mr. “A” concluded the applicant’s claim was barred both because it fell outside the Tribunal’s jurisdiction ratione personæ and outside its jurisdiction ratione materiæ. See Mr. “A”, para. 100 (3): “[T]he Fund’s decision to enter into a contract or series of contracts with an individual to serve as a contractual employee, rather than as a member of the staff, is not a ‘decision taken in the administration of the staff’ (Art. II, para. 2.a.).”
- The Tribunal has observed that “. . . international administrative tribunals are tribunals of limited jurisdiction and may not exercise powers beyond those granted by their statutes.” See generally Mr. “A”, paras. 56-59.

### Applicant’s grievance: denial of impartial adjudication
- Applicant’s essential complaint: she has been denied recourse to an impartial decision maker to decide the merits of the claim arising from her former employment with the Fund.
- Applicant asserts alleged harms:
  - Breach of the arbitration clause of her contract.
  - Violation of general principles of international administrative law.
  - Denial of justice.
- Applicant contends she has “no mechanism other than the Tribunal to ensure that her . . . challenge [to the arbitrator] for bias can be raised before an impartial decision-making body” and that she has been “severely harmed by the Fund’s wrongful blockage of access to an impartial decision-making body (i.e. the AAA), which is aimed at rendering the Fund’s promise of a ‘neutral arbitrator’ unenforceable and thus void.”

### Statutory limits on Tribunal authority
- Article III of the Tribunal’s Statute: “Tribunal shall not have any powers beyond those conferred under this Statute.”
- Commentary on the Statute, p. 16: “[T]he statutory provision defining the competence of the tribunal is, at the same time, a prohibition on the exercise of competence outside the jurisdiction conferred.”
- The Tribunal in Mr. “A”: “. . . the fact that Applicant’s claim will otherwise not be judicially examined does not require or entitle the Tribunal to exercise jurisdiction in this case.” Mr. “A”, para. 95.
- Emphasis from Mr. “A”: “The jurisdiction of the Administrative Tribunal is conferred exclusively by the Statute itself. This Tribunal is not free to extend its jurisdiction on equitable grounds, however compelling they may be.” Id., para. 96.

### Tribunal’s concerns about procedural gaps and institutional responsibility
- In summarily dismissing Mr. “A”, the Tribunal registered “disquiet and concern” that the practice “may leave employees of the Fund without judicial recourse.” Id., para. 97.
- Tribunal’s view: it is for the “policy-making organs” of the Fund, rather than for the Tribunal, to consider and adopt means of providing appropriate avenues for resolution of disputes such as whether functions performed by a contractual employee meet criteria for a staff appointment rather than contractual status. Id.
- In the instant case, the Tribunal registers “significant disquiet and concern.”
- Respondent’s Handbook for Locally-Recruited Employees: Fund policy gives locally-recruited contractual employees access to a fair process for resolving disputes.
- Despite Fund assurances, where an arbitrator has been unilaterally appointed by the Fund in accordance with the contract, a contractual employee who contests the impartiality of the arbitrator has no recourse to an independent third party to decide that claim.
- Tribunal’s view on fair arbitral systems:
  - Confidence in fair adjudication can be engendered by ensuring arbitrators are selected by agreement between the parties, or
  - Where the Fund selects the arbitrator, by providing a mechanism for third party adjudication of challenges to the impartiality of the arbitrator.
  - “Neither mechanism exists here.”
  - The Tribunal considers this “an important matter that the Fund needs to address in order to ensure that its dispute resolution process is, as it claims, both fair and seen to be fair.”

### Tribunal’s conclusion and decision
- Finding: Applicant’s challenge to an element of the dispute resolution process applicable to locally-recruited contractual employees, both in its application to her and more generally, falls outside the scope of the Tribunal’s jurisdiction ratione personæ and ratione materiæ.
- Legal consequence: Because the Tribunal may not decide claims outside its jurisdictional competence, the Application must be dismissed.
- Decision (unanimous):
  - The Motion for Summary Dismissal is granted and the Application of Ms. Abu Ghazaleh is dismissed.
  - Signatories:
    - Catherine M. O’Regan, President
    - Jan Paulsson, Judge
    - Edith Brown Weiss, Judge
    - /s/ Catherine M. O’Regan, President
    - /s/ Celia Goldman, Registrar
  - Location and date: Washington, D.C. November 11, 2015

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_Source: https://www.imf.org/-/media/files/imfat/j2015-2.pdf_