Statute

The statute of the Commonwealth Secretariat Arbitral Tribunal (CSAT) was adopted by Commonwealth Governments on 1 July 1995 and amended by them on 24 June 1999, 18 February 2004, 14 May 2005 and 16 May 2007.

PART I ESTABLISHMENT

ARTICLE I

There is established by Commonwealth Governments under this Statute, the Arbitral Tribunal of the Commonwealth Secretariat, to be known as the Commonwealth Secretariat Arbitral Tribunal.


PART II JURISDICTION

ARTICLE II

1. The Tribunal shall hear and determine any application brought by:

(a) a member of staff of the Commonwealth Secretariat;

(b) The Commonwealth Secretariat;

(c) any other person who enters into a contract with the Commonwealth Secretariat;

which alleges the non-observance of a contract in writing with the Commonwealth Secretariat and includes, in relation to a contract of service the non-observance of the contract of employment or terms of appointment of such member of staff, and in relation to a contract for services the non-observance of the terms of the contract.

2. The Tribunal shall also be competent to hear and determine an application involving an international or intergovernmental Commonwealth body or organisation which meets the requirements set out in Annex A to this Statute and which has addressed to the Commonwealth Secretary General a declaration recognising, in accordance with its constitution or internal administrative arrangements, the exclusive jurisdiction of the Tribunal, as well as its Rules of Procedure and brought by:

(a) a member of staff of that international or intergovernmental

Commonwealth body or organisation;

(b) that international or intergovernmental Commonwealth body or organisation;

(c) any other person who enters into a contract with that international or intergovernmental Commonwealth body or organisation;

which alleges the non-observance of a contract in writing with that international or intergovernmental Commonwealth body or organisation including, in relation to a contract of service the non-observance of the contract of employment or terms of appointment of such member of staff, and in relation to a contract for services the non-observance of the terms of the contract.

3. Subject to paragraph 4 of this Article, the Tribunal shall only consider an application if:

(a) in relation to a contract of service, the applicant has exhausted all other remedies available within the Commonwealth Secretariat or other body or organisation eligible under Annex A including the redress of grievance procedures specified in the contract or in relevant Staff Rules; and

(b) the application is filed within a period of 90 days after the latest of the following:

(i) the occurrence of the event giving rise to the application;

(ii) receipt of notice, after the applicant has exhausted all other remedies available within the Commonwealth Secretariat or other eligible body or organisation, that the relief asked for or recommended will not be granted;

or

(iii) receipt of notice that the relief asked for or recommended will be granted, if such relief shall not have been granted within one month after receipt of such notice.

(c) Notwithstanding the provisions of paragraph 3 (a) the Tribunal may consider an application where all other remedies have not been exhausted where the Tribunal determines that the remedies available cannot adequately address the issues raised in the application.

4. The Tribunal may nevertheless consider an application which is out of time where it is satisfied that it was not reasonably practicable for the application to be filed before the end of the period of 90 days.

5. For the purpose of this Statute:

(a) "contract of employment" and "terms of appointment" include all relevant Regulations and Rules in force at the time of the alleged non-observance and include the provisions relating to staff gratuity, retirement and end of contract benefits;

(b) "contract of service" means an agreement between the Commonwealth Secretariat or other eligible body or organisation to which the Tribunal is open under Annex A to this Statute and a member of its staff for work by the staff member over a specified period of time and in relation to which the relevant Regulations, Rules and provisions referred to in paragraph (a) concerning a contract of employment will apply.

(c) "contract for services" means a contract for the supply of goods or services other than a contract of service.

(d) "member of staff" means:

(i) any current or former member of the headquarters staff of the Commonwealth Secretariat;

(ii) a current or former member of staff of a regional office of the Commonwealth Youth Programme (CYP); and current or former office staff of the Commonwealth Small States facility in New York or of any other eligible body or organisation to which the Tribunal is open under Annex A to this Statute; and

(iii) any person who is entitled to claim upon a right of a member of the staff as a personal representative

(iv) a temporary appointee;

but does not include:

(v) an expert employed to work under the Commonwealth Fund for Technical Co-operation;

(vi) a consultant who does not discharge the functions of a substantive post holder at the Commonwealth Secretariat Headquarters or at a regional office of the Commonwealth Youth Programme or at the Commonwealth Small States facility in New York or within any other eligible body or organisation to which the Tribunal is open under Annex A to this Statute and thereby does not fall within the ordinary meaning of the word "employee";

(vii) a person employed in the domestic household of a member of staff.

ARTICLE III

In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the Tribunal.


PART III MEMBERSHIP, APPOINTMENTS AND TENURE

ARTICLE IV

1. The Tribunal shall consist of eight members who shall be nationals of Commonwealth Member States.

2. No two members of the Tribunal may be nationals of the same member State.

3. The members of the Tribunal shall be of high moral character and must:

(a) have held, hold or be qualified to hold high judicial office in a Commonwealth country; or

(b) be jurisconsults of recognised competence with experience as such for a period of not less than ten years.

4. (a) The President and seven other members of the Tribunal shall be selected by Commonwealth Governments on a regionally representative basis with an appropriate gender balance and appointed in accordance with the provisions of Annex B to this Statute;

(b) The President and other members of the Tribunal shall be appointed for four year terms;

(c) Member Governments may re-select the President or any other member of the Tribunal for appointment for one additional term not exceeding four years in accordance with the provisions of Annex B.

5. The Tribunal hearing an application shall be composed of three members empanelled by the President. Unless the President decides otherwise, he or she shall be a member of the panel and shall preside over the proceedings. In the absence of the President the panel shall decide who shall preside.

6. Where a substantial number of applications have been lodged and have been listed for adjudication, the Tribunal if the President so decides, may be constituted in separate chambers of three members each.

7. If the President resigns or dies, or for whatever reason is unlikely to be able to perform the duties of the office for a period exceeding three months, Member Governments shall select another member of the Tribunal to perform the duties of the President during the absence of the President or until a new President is appointed, after consultation with the Secretary General and the Commonwealth Secretariat Staff Association.

8. A member of the Tribunal shall have security of tenure and shall remain in office until the end of his/her term of appointment unless the member resigns or dies. A member may only be removed on the ground of manifest unsuitability or inability to perform the duties of a member of the Tribunal following a recommendation of the majority of the other members of the Tribunal and approved by Member Governments.

9. In the event of the occurrence of any other contingency set out in Annex C to this Statute, the procedure to be followed shall be as specified therein.

ARTICLE V

1. The Commonwealth Secretary-General shall make the administrative

arrangements necessary for the functioning of the Tribunal including designating a Secretary, who shall be a lawyer qualified to practice law in at least one Member State.

2. In the discharge of his or her duties, the Secretary shall be responsible only to the Tribunal and, subject to the Tribunal Rules, shall keep confidential any information or material related to any matter coming before the Tribunal.

3. If the Secretary is absent or unable to act, the duties of the Secretary shall, during the period of his/her absence or inability to act, be performed by another person designated by the Secretary General and who satisfies the requirements prescribed in paragraph 1. When performing the functions of the Secretary, the acting Secretary shall be subject to the same duty of confidentiality as the Secretary.

4. The expenses of the Tribunal shall be borne by Member Governments and any body or organisation recognising and submitting to the jurisdiction of the Tribunal pursuant to Article II paragraph 2. The expenses to be borne by any such body or organisation shall be in accordance with Annex A, paragraph 2.


PART IV PROCEDURE

ARTICLE VI

1. Subject to the provisions of the present Statute, the Tribunal shall draw up its rules and shall determine its procedure. When amending its Rules, the Tribunal may take into account any views expressed by Commonwealth Governments, the Secretary General and the Commonwealth Secretariat Staff Association.

2. The Rules of the Tribunal shall contain provisions to ensure that applications before the Tribunal are dealt with in a manner that is independent and impartial and consistent with Commonwealth Principles relating to fundamental human rights and independence of the judiciary.

3. Without prejudice to Article XII, in drawing up its Rules the Tribunal shall take into account the practice and procedure of other international administrative tribunals and shall ensure that the Rules permit the hearing of relevant cases in accordance with the law governing international organisations.

4. The Rules shall include provisions concerning:

(a) the presentation of applications and the procedure to be followed in respect of them;

(b) intervention by persons, bodies or organisations to whom the Tribunal is open pursuant to paragraphs 1 and 2 of Article II and as defined in paragraph 5 of Article II, whose rights or obligations may be affected by the judgment;

(c) hearing, for the purposes of information, of persons, bodies or organisations to whom the Tribunal is open under paragraphs 1 and 2 of Article II; and

(d) other matters relating to the functioning of the Tribunal.

ARTICLE VII

1. The Tribunal shall hold sessions and sit on dates and at times to be fixed in accordance with its rules.

2. In dealing with applications before it and subject to its rules, the Tribunal shall proceed as expeditiously as the circumstances permit.

3. The seat of the Tribunal shall be the principal office of the Commonwealth Secretariat.

4. Notwithstanding paragraph 3, in dealing with an application, unless it decides to hold oral proceedings, the Tribunal may dispose of the application on the strength of the documents only by exchange of correspondence and without the need for a formal sitting.

ARTICLE VIII

The Tribunal shall decide whether oral proceedings are warranted and shall so decide if the interests of justice appear to it to require the calling of witnesses. Any party making or responding to an application, or entitled under paragraph 4(b) of Article VI to intervene, may make representations in this regard. Any oral proceedings shall be held in public, unless the Tribunal decides that the interests of justice require that they be held in private.

ARTICLE IX

1. The Tribunal shall take all its decisions by a majority of the members of the panel which heard the case. Where a panel has been reduced to two members and the members fail to agree, the presiding member shall order a re-hearing by a new panel.

2. The Tribunal shall state the reasons for its judgment in writing.

3. The Tribunal shall determine who shall bear the costs of the application and in doing so may take into account the means of the parties.

4. In an application where the Tribunal has held oral proceedings the Tribunal may decide, if it considers that circumstances require it, that its judgment shall be delivered at an open sitting by a member of the panel which heard the case.

5. Subject to Article X1, the judgment of the Tribunal shall be final and binding on the parties and shall not be subject to appeal.

ARTICLE X

1. If the Tribunal finds that the application is well-founded, it shall order the rescission of the decision contested or the specific performance of the obligation invoked, or in addition to, or alternatively to any such remedy, appropriate compensation for any loss or damage occasioned. Where an application is made by a staff member, where relevant, the Tribunal shall, at the same time, fix the amount of compensation to be paid to the applicant for the loss, injury or damage sustained, provided that such compensation shall not normally exceed the equivalent of three years' net remuneration of the applicant. The Tribunal may, however, in exceptional cases, when it considers it justified, order the payment of a higher amount of compensation. A statement of the specific reason for such an order shall be made.

2. Subject to Article II 3(c), if the Tribunal finds that there has been unreasonable delay in instituting the procedure prescribed in the rules of the Commonwealth Secretariat or other eligible body or organisation or that the prescribed procedure has not be observed, it may, at the request of the Secretary-General or at the request of the Head of a body or organisation to which Article II paragraph 2 applies, and prior to the determination of the merits, order the case to be remanded for institution of the required procedure or correction of the faulty procedure.

Where a case is remanded, the Tribunal may order the payment of compensation, not exceeding the equivalent of three months' net remuneration, to the applicant for such loss as may have been caused by the procedural delay.

3. The filing of an application shall not have the effect of suspending execution of the decision contested, unless in the interests of justice the President otherwise decides.

ARTICLE XI

1. The Tribunal may, of its own motion or at the request of a party, correct any clerical, typographical, computational or any other errors of a similar nature discovered in a judgment within 60 days of such judgment.

2. A party to a case in which judgment has been delivered may, in the event of the discovery of a fact which by its nature might have had a decisive influence on the judgment of the Tribunal and which at the time the judgment was delivered was unknown both to the Tribunal and to that party, apply to the Tribunal, within a period of 180 days after the judgment was delivered, to revise the judgment.

3. An application to revise a judgment of the Tribunal shall contain the information necessary to show that the conditions laid down in paragraph 2 of this Article have been complied with. The application shall be accompanied by the original or a certified copy of all supporting documents.

4. The Tribunal, sitting as the original panel that heard the initial application, before considering the application for revision shall invite the other party to submit a response to the application.

5. A party to a case in which judgment has been delivered who challenges the judgment on the ground that the Tribunal has exceeded or failed to exercise its jurisdiction or competence, or has erred on a question of fact or law or both, or that there has been a fundamental error in procedure which has resulted in a failure of justice or that the Tribunal has acted unreasonably having regard to the material placed before it, may apply to the Tribunal, within a period of 60 days after the judgment was delivered, for a review of the judgment.

6. Where the limitation period for an application for revision or review has expired the Tribunal may, in the interests of justice, enlarge time for the application to be submitted, where exceptional circumstances led to the failure to file an application within time.

7. An application to review a judgment under paragraph 5 shall contain a statement of the grounds on which the allegation of error of law or fact or unreasonableness is based and shall set out the legal and factual arguments in support of the application.

8. The President shall constitute a panel comprising five members who did not sit on the initial panel that delivered the judgment in question, to sit as a Review Board to review the judgment.

9. In determining an application for revision or review the Tribunal shall follow the procedure outlined in Articles VIII, IX paragraphs 1 to 3 and Article X1 paragraph 11 as may be appropriate.

10. In determining an application for revision or review, the Review Board may affirm or rescind in whole or in part the judgment of the panel which heard the application.

11. Where the Review Board affirms or rescinds a judgment in whole or in part, it shall have the power to:

(a) substitute its own determination and may make an order granting a remedy;

(b) refuse to make any order granting a remedy;

(c) order a re-hearing before a different panel comprising only members who did not sit on the initial panel.

12. Subject to paragraph 11(c), the judgment of the Tribunal sitting as a Review Board shall be final and binding on the parties and shall not be subject to appeal. This provision shall constitute an "exclusion agreement" within the meaning of the laws of any member State requiring arbitration or as those provisions may be amended or replaced.


PART V MISCELLANEOUS

ARTICLE XII

1. In dealing with a case relating to a contract of service, and subject to paragraph 2 of Article VI, the Tribunal shall be bound by the principles of international administrative law which shall apply to the exclusion of the national laws of individual member countries.

2. In all other cases, the Tribunal shall apply the law specified in the contract. Failing that, it shall apply the law most closely connected with the contract in question.

3. For the purposes of this Article, contracts with Applicants referred to in Article II 5(d) (v) and (vi) shall be treated as contracts of service.

ARTICLE XIII

1. The original of each judgment shall be filed in the archives of the Secretariat. Where the dispute involves another international or intergovernmental Commonwealth body or organisation pursuant to Article II, paragraph 2(a) a judgment shall be drawn up in two originals, one of which shall be filed in the archives of the Commonwealth Secretariat and the other in the archives of the body or organization involved. A copy of the judgment shall be delivered to each of the other parties to the dispute. Copies shall also be made available by the Secretary to other persons on request.

2. The Statute, Rules and Judgments of the Tribunal shall be published on the official websites of the Commonwealth Secretariat and the Tribunal.

ARTICLE XIV

Neither the President nor any member of the Tribunal or the Secretary and other staff of the Tribunal or an expert witness called by the Tribunal shall be liable to any person for any act or omission in connection with arbitration under this Statute.

ARTICLE XV

This Statute may be amended by Commonwealth Governments. When amending the Statute, Commonwealth Governments may consider any views expressed by the President, the Secretary General and the Commonwealth Secretariat Staff Association.