Administrative Tribunals Research Articles

Employment equity, affirmative action and managing diversity: assessing the differences

Affirmative action in the USA, and employment equity in Canada, are policy frameworks that have developed through the use of legislation, regulation and decisions by courts and administrative tribunals, as mechanisms for addressing discrimination in employment. Managing diversity, in contrast, is a voluntary initiative by corporate decision makers, at the level of the firm, in response to the growth of diversity in the workforce and marketplace. Provides a framework for comparing and assessing the three approaches and choosing between them.

Compulsory resignation regime for members of the Territorial Assembly of French Polynesia - decision of 11 June 1993 of the Administrative Tribunal of Papeete

This article is a case note of a decision from the Administrative Tribunal of Papeete, French Polynesia. Although no constitutional provision speaks of it expressly in the context of the legislative regime of the Overseas Territories, the principle is that legislative speciality governs the application of metropolitan laws in the Territories. In 1992, however, the Territory of French Polynesia experienced a somewhat confused institutional situation: the fortunes of political alliances led Mr Vernaudon, member and President of the Territorial Assembly, and who was angered by the association of Mr Flosse (his former political ally) with Mr Juventin (his former rival) to make use of powers inherent in his position as President to refuse to call the Assembly to meeting. This article discusses two main issues stemming from these events: procedural guarantees (i.e. a failure to respect a member's rights), and constitutional reforms (i.e. whether the compulsory resignation principle is appropriate in French Polynesia). The author concludes that the compulsory resignation process should be repealed, as it seems particularly offensive to confer on a majority of a political assembly the power to dismiss any political opponent so easily.

The Councils of the Archipelagos in the basic law of French Polynesia - M Vernaudon C Territoire de law Polynesie Francaise - decision of the Administrative Tribunal of Papeete of 10 May 1994

This article is a case note of the judgment of the Administrative Tribunal of Papeete of 18 May 1994, which concerned the illegality of the tariffs applicable to sea transport services. Mr Emile Vernaudon challenged the legality of a government decision which should have been taken after consultation with the councils of the archipelagoes. The author discusses two potential contentious points: a failure to legislate, and a failure to consult.

Playing chicken with people: the occupational safety and health consequences of throughput über alles.

The political-economic and legal analysis of regulation in this article argues that the speed of work on disassembly lines in poultry processing plants, the fastest growing factory employment in the United States, is de facto regulated not by the Occupational Safety and Health Administration, the agency charged with protecting workers, but, perversely, by the U.S. Department of Agriculture. In arrogating to itself the power to set line speeds in connection with its inspection of processed carcasses, the Department of Agriculture has one-sidedly promoted chicken oligopolies' interests by accommodating their drive to produce as much product as quickly and cheaply as possible (throughput über alles) and especially without regard to the incidence of repetitive stress disorders associated with high-speed machine-paced manual production. In contrast, the Occupational Safety and Health Administration has failed either to assert its statutory authority over this vital determinant of workers' well-being or to persuade any administrative or judicial tribunal that it possesses such authority. Consequently, the article concludes, the health and safety of 200,000 low-paid and largely unorganized, female, and non-white workers continue to be held hostage to the self-valorization needs of capital and the state's cheap food policy.

Finding and Losing One's Self in the Topoi: Placing and Displacing the Postmodern Subject in Law

The metaphors Santos (1995) affords us for orienting a postmodern subject no doubt emerge from a substantial body of empirical research and theoretical deliberation. Having only been provided with a very brief summary of his remarks upon which to base my own, I risk an insistence upon sociohistorical contextualization that may well be more appropriately attended to in Santos's aggregated agenda. So be it. My point, in any case, is simply to suggest that rather than privilege any formulation of the subject, postmodern or otherwise, in a progressive reimagining of the law, we put the subject at risk by continuously interrogating its privileges. I might begin by disputing Santos's claim that “we” are in a period of “paradigmatic transition” by virtue of having to acknowledge other knowledges and “rival epistemologies” by asking for whom the exhaustion of modernity's certainties is a “deep and irresolvable crisis.” Similarly, one could argue that, far from being exhausted, modernity's categories continue to provide many of the conceptual resources for a truly profound expansion of democratic politics—one that is only now realizing its potential by virtue of the failure of Enlightenment universal-isms and the proliferation of identities, epistemologies, and new social movements (Botwinick 1993; Laclau 1993, 1994; Lefort 1988; McClure 1992; Mouffe 1992a, 1993, 1995). Such politics, of course, are very likely to be enacted in struggles to expand the inclusiveness of common law and legislative categories—in courts, legislatures, and administrative tribunals, at local, national, and international levels. I will briefly return to the potential politics of postmodernity in my conclusion, for it is there, perhaps, that we might find more promising resources for a new conception of law.

Les contrôles juridictionnels et non juridictionnels

Judicial and Non-judicial Controls Judicial control is exercised by ordinary courts since administrative tribunals have disappeared in 1946, but are submitted to a specific legislation. Judicial control is a control of legality, appropriateness being only checked through the obligation to motivate decisions. Stay of execution is generally impossible. Non-judicial Controls are the result of administrative remedies (appeal to the decision makers themselves, hierarchical control and revision) and different mediation procedures. From a western point of view, the control of administration is limited in practice because japanese people do not like to intervene in public matters.

La reconnaissance d'une forme mitigée de dualité de juridictions en droit administratif canadien

The present text discusses the reception, in Canada, of the French model of duality of jurisdictions in the field of administrative law. It seeks to demonstrate that, notwithstanding the ideological divergences from which each system was born, the Canadian system moves towards a mitigated form of duality of jurisdictions. Part I compares the characteristics and the historical foundations of both the French and the Canadian jurisdictional Systems and emphasizes their divergent elements. Part II analyzes the recent evolution — principally marked by the emergence of specialized administrative tribunals, the creation of a court of justice mostly dedicated to administrative matters and the introduction of a new standard of judicial review — from which it can be deduced some common features with the French model. Without speaking of an absolute convergence, this analysis reveals the fact that the pur suit of specialization which underlies the changes made in the Canadian jurisdictional order and in the Rule of law, not only leads to a duality of jurisdictions at the level inferior tribunals, but paves the way to the development of an autonomous corpus of administrative law.

The Growth of Public Participation in Decisions of the Energy Resources Conservation Board

This paper addresses the issue of public participation in one of Alberta's most important administrative tribunals, the Energy Resources Conservation Board (ERCB). The ERCB makes significant decisions regarding the exploration for, and development of, natural resources in Alberta. In the past twenty-five years the public has taken an increasing interest in the types of issues which face the ERCB. The following essay discusses the legislative scheme which permits and encourages public participation in these decisions. It also addresses the increase in public participation, and focuses on two specific events: the Crown of the Continent Project in the Waterton Lakes area of Alberta and the Caroline/Beaverhill Lake Gas Development Applications.

The Work of the Sixth Committee at the Forty-eighth Session of the UN General Assembly

At the forty-eighth session of the General Assembly, the Sixth (Legal) Committee reviewed the annual reports of the International Law Commission (ILC), the United Nations Commission on International Trade Law (UNCITRAL), the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (Special Committee), and the Committee on Relations with the Host Country (Host Country Committee). The Sixth Committee also considered proposals for two new legal instruments relating to (1) the jurisdictional immunities of states and their property, and (2) the safety and security of United Nations personnel. Other items covered by the committee included a proposal to request an advisory opinion from the International Court of Justice on questions regarding extraterritorial jurisdiction, as well as topics concerning international terrorism, economic relations, procedural aspects of the United Nations Administrative Tribunal and the United Nations Decade of International Law (Decade).

Lindsey v. Asian Development Bank

233International organizations — Asian Development Bank — Officials — Terms and conditions of employment — Fixed-term appointment — Whether circumstances giving rise to legitimate expectation of permanent appointment — Unsatisfactory performance — Concept of due process — Whether Bank reaching decision by proper processes — Review by TribunalInternational tribunals — Asian Development Bank Administrative Tribunal — Judicial body — Basis of jurisdiction — Compétence de la compétence — Article II(1) of Statute of Admininstrative Tribunal — Principal rules of law — Reviewability of decision — Whether due process — Tribunal not to substitute own discretion for that of Bank — Remedies — Compensation

As formas de manifestação do Direito Educacional

A listing of sources for Educational Constitutional Law, from the laws, resolutions and legal opinions of the boards of education to the jurisprudence of administrative organs and tribunals, forms the body of norms that governs the educational systems and permits them to be classified, with the objective of providing a systematization.

The Exhaustion of Alternative Remedies in Administrative Law

The application for judicial review is the primary means of challenging the legality of action taken by public bodies. Judicial review is not, however, the only avenue by which an individual may challenge a particular decision. Statute may create an appellate machinery to hear appeals against decisions of public bodies. There is a wide variety in the pattern of such schemes. There may be an appeal from a decision to a tribunal or other body, with a further right of appeal on a point of law or by way of case stated to the High Court or the Court of Appeal. Such mechanisms exist in a number of fields, most importantly in the field of revenue law, enforcement notices in planning law, decisions of inferior courts such as magistrates& courts, and social security law. There may be an appeal from a decision to an administrative tribunal or inferior court but with no right of appeal to the High Court, as in certain immigration cases where decisions may be appealed to an adjudicator and from him to the Immigration Appeal Tribunal. There may be an appeal from decisions to an administrative body such as a Secretary of State either with provision for appeal to the courts, as with appeals against refusals of planning permission by local authorities, or without any further right of appeal, as in the case of appeals against disciplinary decisions of chief constables.

Rajan v. Secretary-General of the United Nations

717International organizations — International officials — Determination of status — Official recruited by United Nations to work with Government of Swaziland — Provision of Operational, Executive and Administrative Personnel Programme — Whether United Nations employment — Pension entitlement — United Nations Administrative Tribunal

On the Administrative Litigation Law

The Administrative Litigation Law, which was ratified not long ago by the National People's Congress (NPC), is just like a stone thrown into the water that stirs up many waves. Among the broad cadres and masses, many doubts have emerged. "Can the common people win a suit against officials?" "Will the Administrative Litigation Law work?" Recently, our correspondent brought these questions to Huang Jie, chief of the Administrative Tribunal of the Supreme People's Court in Beijing.

La judiciarisation du traitement du malade psychiatrique inapte qui refuse catégoriquement de consentir

Psychiatrists in particular face a clinical, legal and social dilemma in treating their patients who are likely to categorically oppose treatment. This article illustrates this dilemma in the context of Quebec's Bill 145, resulting in the care of psychiatric patients being increasingly referred to the courts. After presenting this legislation and a case, the authors illustrate the impact of this legislation in light of their own experience and similar legislation in the United States. The mechanisms proposed by Bill 145 have proved costly in several respects as well as cumbersome and ineffective. The authors propose the establishment of an administrative tribunal as an alternative to the current recourse to the courts.

“Exclusive Preserves” and the New Soviet Policy Toward the Un Secretariat

An “exclusive preserve” of a state in the UN Secretariat is a post that is continuously filled by nationals of the same state. Virtually from the founding of the United Nations, the Secretariat has observed an “unofficial” practice of exclusive preserves for many senior posts held by nationals of several influential states, including the United States; but its most persistent advocate, and with regard to a particularly wide range of posts, has been the Soviet Union. In view of the past underrepresentation of Soviet nationals in the Secretariat, largely because the Soviet Government insisted that its nationals be recruited only on fixed-term contracts based on secondment from the Government and Soviet institutions, a considerable number of posts were set aside to be filled on a replacement basis. The occupants of those posts were selected by the Secretary-General from a very short list of candidates submitted by the Soviet Government. The object of this Editorial is to assess the impact of the new Soviet policy toward the UN Secretariat, recent General Assembly resolutions and the jurisprudence of the United Nations Administrative Tribunal on the practice of exclusive preserves.

Administrative Tribunals and the Charter, by Neil R. Finkelstein and Brian MacLeod Rogers

Administrative Tribunals and the Charter, by Neil R. Finkelstein and Brian MacLeod Rogers

Matta v. International Bank for Reconstruction and Development

428International organizations — Officials — Terms and conditions of employment — Termination of employment — Probationary staff member — Unsatisfactory performance — Duty of fairness — Treatment of applicant reflecting special consideration — Concept of due process — Whether respondent under duty to notify applicant of right of appeal — Respondent applying for disability pension on applicant's behalf — World Bank Administrative Tribunal — Procedure

Einthoven v. International Bank for Reconstruction and Development

467International organizations — Officials — Terms and conditions of employment — Reassignment of official contrary to his wishes — Discretion of organization — Needs of organization taking priority over official's preferences — Requirement that organization should act in a way which was not arbitrary or improperly motivated — Requirement that organization follow fair and reasonable procedure — Recommendation of Appeals Committee — Whether binding — Decision by Vice-President not to follow recommendationInternational tribunals — International administrative tribunals — World Bank Administrative Tribunal — Jurisdiction — Procedure — Review of decisions — Grounds for review — Tribunal not to substitute own discretion for that of decision maker

Justin v. World Bank

International organizations — Officials — Contract of employment — Conclusion of contract — Offer of appointment accepted by applicant — Condition that applicant successfully complete medical examination — Director of medical department concerned about applicant's age — Decision to withdraw offer of appointment — Whether reasonable — Whether Tribunal should overturn medical judgmentInternational tribunals — International administrative tribunals — World Bank Administrative Tribunal — Jurisdiction — Whether contract of employment ever concluded an issue — Whether within jurisdiction of Tribunal — Review of decisions — Circumstances in which Tribunal should overturn decision