Recap of the Legal Seminar Hosted by OPEC Fund on November 22, 2023
Privileges and Immunities of International Organizations in a Changing Risk Environment
by Nafisa Adama[1], Abdulelah Alolayan[2] & Fabian Karlovits[3]
The OPEC Fund for International Development (“OPEC Fund”), headquartered in Vienna, Austria hosted a legal seminar on November 22, 2023, themed "Privileges and Immunities of International Organizations in a Changing Risk Environment". Distinguished participants representing over 25 organizations, particularly International Financial Institutions (IFIs), the host country, law firms and academia, were invited to share insights on the subject.
The seminar had two panels and one plenary session. Each session was highly interactive as participants actively shared insights, experiences and lessons learned, and also asked pertinent questions. The dynamic exchange enriched the understanding of the complexities involved in balancing the autonomy of international organizations (IOs) with the need for accountability.
First Panel: Legal Framework and Scope of International Organization’s Privileges and Immunities
The first panel was moderated by Elizabeth Hassan, Senior Counsel, OPEC Fund and had the following expert panelists: Andrei Gheorghe, Associate Director and Senior Counsel, European Bank for Reconstruction and Development (EBRD); August Reinisch, Professor of Law, Department of European, International, and Comparative Law, University of Vienna; Gregor Schusterschitz, Director for Public International Law, Federal Ministry for European and International Affairs, Austria; Hanno Scheuch, Head of Institutional and Administrative Unit, OPEC Fund; and Elizabeth Liga Mutia, Chief Protocol Officer – Privileges and Immunities, General Secretariat, African Development Bank (AfDB).
The panelists explored the sources and scope of the privileges and immunities of IOs, and highlighted the nuances in the application of these privileges based inter alia on the applicable legal and contractual framework, including international conventions, host country agreements, and generally accepted principles of international law. They discussed the different types of immunity, and how they may differ across IOs and the relevant governing legal regime. It was emphasized that IFIs are in agreement that they have functional immunity, which enables them to discharge their mandates.
The panel also delved into the evolving nature of IOs’ mandates and the associated risks to existing immunities, especially when questions arise on the scope of such immunities or how they should be interpreted. It was noted that this requires tailored mitigation measures, in light of the delicate balance needed between protection of immunity on the one hand and accountability on the other.
Suggested mitigation strategies included increased precision in defining immunities in host country agreements, ensuring effective alternative grievance redress mechanism at the staff, project and third party/contractor levels, and continuous dialogue with host countries.
Talks about the contemporary risk landscape highlighted the emerging challenges that IOs face in light of the evolving geopolitical and economic landscape, necessitating continuous reassessment of privileges and immunities, to ensure their continued relevance and efficacy.
The panelists also emphasized the importance of IOs maintaining an open and cordial relationship with the host country as a primary stakeholder, to ensure continued dialogue and promote common understanding of the scope of immunities and how they should be applied or interpreted.
Second Panel: Recent Court Decisions on Privileges and Immunities of International Organizations
The second panel was moderated by Nastaran Sharif, Senior Counsel, OPEC Fund and had the following expert panelists: Ranjini Ramakrishnan, Chief Counsel for Institutional & Administration, the Asian Infrastructure Investment Bank; Kirsten Schmalenbach, Professor of International and European Law, Paris Lodron University Salzburg, Austria; Karen Denny, Partner in Public International Law, CMS London; Mona Alsharmani, Principal Counsel, International Finance Corporation (IFC); and Fathallah El-Guernaoui, Chief Legal Counsel, AfDB.
The panel discussed litigation concerning the privileges and immunities of IOs which raised questions around the principle of functional necessity, the distinction between development and commercial activities, employment or contractual claims, ESG claims, the role of alternative dispute resolution, and the intersection of jurisdictional immunity with human rights and the rule of law. Key cases, such as Jam v. IFC, which brought to bear the challenges of distinguishing between development and commercial activities of IOs in the context of private sector operations, were analyzed, emphasizing the need for adaptable strategies for dispute resolution.
The panelists discussed cases that have come up in other jurisdictions, such as Italy, the United Kingdom, and China. It was noted that case law is often too diverse and context-specific for the establishment of clear precedent that could persuasively apply to other cases. Hence, there is a need to contextualize case law properly in order to determine applicability to future cases.
The panel stressed the importance of establishing effective internal accountability mechanisms within IOs or revamping existing ones, to mitigate litigation and reputational risks, while ensuring access to justice.
Emphasizing the need to preserve the principle of functional necessity, panelists agreed that immunity and responsibility can and often do coexist. There was consensus that if functional necessity is curtailed or denied, it will jeopardize the ability of IOs to effectively discharge their mandates and consequently, developing countries and the global economy will be negatively impacted.
A final question on the possibility of establishing a general or universal convention on privileges and immunities of IOs was examined. It was agreed by most participants that codifying a universal list of immunities for all IOs would be virtually impossible or at best impractical because different IOs have different mandates, operating environments, and unique structures that need to be accommodated when granting privileges and immunities.
Plenary Session: Lessons Learned, Challenges and Opportunities
The seminar concluded with a plenary session, moderated by Amana Ranjan, Counsel, OPEC Fund. Participants engaged in a general discussion and reflected on the key takeaways from the panel sessions. They explored the delicate balance needed to afford IOs essential protections while ensuring accountability. A key topic was the scope of immunity in the context of employees’ activities or actions in personal or unofficial capacity. Participants emphasized the need for employee awareness regarding the limits of immunities, as well as the potential legal liability certain actions or activities might trigger.
Conclusion
In conclusion, the seminar provided a platform for robust discussions on the complexities involved in navigating the legal landscape governing IOs, offering valuable perspectives for future considerations in this evolving field. The insights gained will contribute to the ongoing dialogue on adapting legal frameworks to the contemporary challenges that IOs face. The event served as a reminder of the dynamic nature of the international legal landscape, which underscores the need for continual adaptation to ensure that privileges and immunities remain relevant and effective in an ever-changing world.
[1] Counsel, OPEC Fund
[2] Young Professional (Lawyer), OPEC Fund
[3] Legal Officer, OPEC Fund
Privileges and Immunities of International Organizations in a Changing Risk Environment
by Nafisa Adama[1], Abdulelah Alolayan[2] & Fabian Karlovits[3]
The OPEC Fund for International Development (“OPEC Fund”), headquartered in Vienna, Austria hosted a legal seminar on November 22, 2023, themed "Privileges and Immunities of International Organizations in a Changing Risk Environment". Distinguished participants representing over 25 organizations, particularly International Financial Institutions (IFIs), the host country, law firms and academia, were invited to share insights on the subject.
The seminar had two panels and one plenary session. Each session was highly interactive as participants actively shared insights, experiences and lessons learned, and also asked pertinent questions. The dynamic exchange enriched the understanding of the complexities involved in balancing the autonomy of international organizations (IOs) with the need for accountability.
First Panel: Legal Framework and Scope of International Organization’s Privileges and Immunities
The first panel was moderated by Elizabeth Hassan, Senior Counsel, OPEC Fund and had the following expert panelists: Andrei Gheorghe, Associate Director and Senior Counsel, European Bank for Reconstruction and Development (EBRD); August Reinisch, Professor of Law, Department of European, International, and Comparative Law, University of Vienna; Gregor Schusterschitz, Director for Public International Law, Federal Ministry for European and International Affairs, Austria; Hanno Scheuch, Head of Institutional and Administrative Unit, OPEC Fund; and Elizabeth Liga Mutia, Chief Protocol Officer – Privileges and Immunities, General Secretariat, African Development Bank (AfDB).
The panelists explored the sources and scope of the privileges and immunities of IOs, and highlighted the nuances in the application of these privileges based inter alia on the applicable legal and contractual framework, including international conventions, host country agreements, and generally accepted principles of international law. They discussed the different types of immunity, and how they may differ across IOs and the relevant governing legal regime. It was emphasized that IFIs are in agreement that they have functional immunity, which enables them to discharge their mandates.
The panel also delved into the evolving nature of IOs’ mandates and the associated risks to existing immunities, especially when questions arise on the scope of such immunities or how they should be interpreted. It was noted that this requires tailored mitigation measures, in light of the delicate balance needed between protection of immunity on the one hand and accountability on the other.
Suggested mitigation strategies included increased precision in defining immunities in host country agreements, ensuring effective alternative grievance redress mechanism at the staff, project and third party/contractor levels, and continuous dialogue with host countries.
Talks about the contemporary risk landscape highlighted the emerging challenges that IOs face in light of the evolving geopolitical and economic landscape, necessitating continuous reassessment of privileges and immunities, to ensure their continued relevance and efficacy.
The panelists also emphasized the importance of IOs maintaining an open and cordial relationship with the host country as a primary stakeholder, to ensure continued dialogue and promote common understanding of the scope of immunities and how they should be applied or interpreted.
Second Panel: Recent Court Decisions on Privileges and Immunities of International Organizations
The second panel was moderated by Nastaran Sharif, Senior Counsel, OPEC Fund and had the following expert panelists: Ranjini Ramakrishnan, Chief Counsel for Institutional & Administration, the Asian Infrastructure Investment Bank; Kirsten Schmalenbach, Professor of International and European Law, Paris Lodron University Salzburg, Austria; Karen Denny, Partner in Public International Law, CMS London; Mona Alsharmani, Principal Counsel, International Finance Corporation (IFC); and Fathallah El-Guernaoui, Chief Legal Counsel, AfDB.
The panel discussed litigation concerning the privileges and immunities of IOs which raised questions around the principle of functional necessity, the distinction between development and commercial activities, employment or contractual claims, ESG claims, the role of alternative dispute resolution, and the intersection of jurisdictional immunity with human rights and the rule of law. Key cases, such as Jam v. IFC, which brought to bear the challenges of distinguishing between development and commercial activities of IOs in the context of private sector operations, were analyzed, emphasizing the need for adaptable strategies for dispute resolution.
The panelists discussed cases that have come up in other jurisdictions, such as Italy, the United Kingdom, and China. It was noted that case law is often too diverse and context-specific for the establishment of clear precedent that could persuasively apply to other cases. Hence, there is a need to contextualize case law properly in order to determine applicability to future cases.
The panel stressed the importance of establishing effective internal accountability mechanisms within IOs or revamping existing ones, to mitigate litigation and reputational risks, while ensuring access to justice.
Emphasizing the need to preserve the principle of functional necessity, panelists agreed that immunity and responsibility can and often do coexist. There was consensus that if functional necessity is curtailed or denied, it will jeopardize the ability of IOs to effectively discharge their mandates and consequently, developing countries and the global economy will be negatively impacted.
A final question on the possibility of establishing a general or universal convention on privileges and immunities of IOs was examined. It was agreed by most participants that codifying a universal list of immunities for all IOs would be virtually impossible or at best impractical because different IOs have different mandates, operating environments, and unique structures that need to be accommodated when granting privileges and immunities.
Plenary Session: Lessons Learned, Challenges and Opportunities
The seminar concluded with a plenary session, moderated by Amana Ranjan, Counsel, OPEC Fund. Participants engaged in a general discussion and reflected on the key takeaways from the panel sessions. They explored the delicate balance needed to afford IOs essential protections while ensuring accountability. A key topic was the scope of immunity in the context of employees’ activities or actions in personal or unofficial capacity. Participants emphasized the need for employee awareness regarding the limits of immunities, as well as the potential legal liability certain actions or activities might trigger.
Conclusion
In conclusion, the seminar provided a platform for robust discussions on the complexities involved in navigating the legal landscape governing IOs, offering valuable perspectives for future considerations in this evolving field. The insights gained will contribute to the ongoing dialogue on adapting legal frameworks to the contemporary challenges that IOs face. The event served as a reminder of the dynamic nature of the international legal landscape, which underscores the need for continual adaptation to ensure that privileges and immunities remain relevant and effective in an ever-changing world.
[1] Counsel, OPEC Fund
[2] Young Professional (Lawyer), OPEC Fund
[3] Legal Officer, OPEC Fund