Johnston v Secretariat Pacific Regional Environment Programme [2017] WSSC 27 (13 April 2017)

SUPREME COURT OF SAMOA
Johnston v Secretariat Pacific Regional Environment Programme
[2017] WSSC 27

Case name:	Johnston v SPREP
Citation:	[2017] WSSC 27
Decision date:	13 April 2017
Parties:	PAULINE JOHNSTON of Vailima, Consultant v SECRETARIAT PACIFIC REGIONAL ENVIRONMENT PROGRAMME (SPREP) having its Head Office at Vailima.
Hearing date(s):
File number(s):	CP 102/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The defendant’s strike out motion is dismissed - Costs reserved
Representation:	R Drake for plaintiff S Leung Wai for defendant M T Lui on behalf of the Attorney General
Catchwords:	consultancy agreement – Convention – Convention for the Protection of Human Rights and Fundamental Freedoms – European Court of Human Rights – European Court – immunity of an international organisation – privileges and immunities –– reasonable alternative means of dispute resolution – retrospective – restrospectivity – right to a Court – statement of claim – strike out motion –waiver
Words and phrases:
Legislation cited:	Constitution Diplomatic privileges and Immunities Act 1978 Diplomatic and Immunities (Declared International Organisations) Order 1998. Diplomatic Privileges and Immunities (Declared International Organisations) Amendment Order 2014
Cases cited:	Ghosh v D’rozario [1962] 2 A11 ER 640 Golder v the United Kingdom judgment of 21 February 1975 Osman v the United Kingdom judgment of 28 October 1998 Samoa Party v Attorney General [2009] WSSC 23 Standard Chartered Bank v International Tin Council [1987] 1 WLR 641 Waite and Kennedy v Germany [1999] ECHR 13
Article	In The Shadow of Waite and Kennedy [2004] 1 IQLR 69 by August Reinisch and Ulf Andreas Weber
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 102/14

BETWEEN

PAULINE JOHNSTON of Vailima, Consultant.

Plaintiff

A N Db

SECRETARIAT PACIFIC REGIONAL ENVIRONMENT PROGRAMME (SPREP) having its Head Office at Vailima.

Defendant

Counsel:
R Drake for plaintiff
S Leung Wai for defendant
M T Lui on behalf of the Attorney General

Judgment: 13 April 2017

JUDGMENT OF SAPOLU CJ

Proceedings

1. These proceedings are concerned with a motion by the defendant to strike out the claim pleaded by the plaintiff in her second amended statement of claim (statement of claim). As this is the first Samoan case which raises the issue of immunity of an international organisation and the decision in these proceedings could have implications for other international organisations in Samoa, I invited the Attorney General to appear or be represented by counsel.

Facts

2. For the purpose of a motion to strike out, I have to assume that the facts pleaded in the statement of claim are true unless shown to be clearly untrue or absurd. As pleaded in the statement of claim, the plaintiff and the defendant entered into a consultancy agreement on 18 September 2013 pursuant to which the plaintiff was to provide the defendant with procurement and financial management services. Clauses 1, 2, 3, 5, 11 and 13 of the consultancy agreement are also pleaded in the statement of claim.
3. Clause 1 of the consultancy agreement states that a contract between the Asian Development Bank and the defendant for the implementation of the strategic plan for climate resilience formed part of the consultancy agreement between the plaintiff and the defendant. It is alleged by the plaintiff that this reference to the agreement between the Asian Development Bank and the defendant did not appear in the draft agreement that was provided for her perusal and it only appeared in the final agreement that she was asked to go and sign.
4. Clause 2 provides that the work to be performed pursuant to the consultancy agreement will cover the period from 1 November 2013 to 1 August 2016 which is twenty seven months.
5. Clause 3 provides that the plaintiff would receive for the period of the agreement the sum of USD128,250 payable by quarterly payments of USD14,250 upon receipt of the targets and actual work performed for each quarter. In addition, the plaintiff would also receive reimbursable expenses including housing, rental, medical insurance, training and competency maintenance, transportation costs, and visas up to USD1,734.00 per month, payment of which would be made within 20 days of receipt of the claim with supporting receipts.
6. Clause 5 states that the plaintiff’s legal status was that of an independent contractor and not of an official or staff member of the defendant.
7. Clause 11 provides that either party may terminate the consultancy agreement by giving 20 days notice to the other party and that the termination or expiry of the agreement will not prejudice any rights or obligations of the parties which exist under the agreement, at law, or otherwise prior to the termination or expiry of the agreement.
8. Clause 13 then provides:
   • “The parties shall cooperate to carry out their obligations in good faith and shall endeavour to resolve any disagreement in an amicable manner including through the use of mediation and conciliation processes, prior to taking any Court action”
9. It is alleged by the plaintiff that at the end of the first quarter of the consultancy agreement when she submitted her invoices and supporting documents for her quarterly payment of USD14,250.00 and her reimbursable expenses totaling USD1,164.00, the defendant paid only the quarterly payment but refused to pay the reimbursable expenses. An attempt on 10 February 2014 to resolve the issue between the parties through discussions regarding the reimbursable expenses was unsuccessful.
10. Subsequently, on 12 February 2014 an officer of the defendant advised the plaintiff by an email that her services were not required until the contractual issues had been resolved. On 26 February 2014, the defendant’s Human Resources Advisor met with the plaintiff but matters remained unresolved. The parties subsequently agreed to refer their dispute to mediation in accordance with clause 13 of the consultancy agreement but the mediation was unsuccessful.
11. An exchange of correspondence then followed between the defendant and the plaintiff’s solicitor. However, the defendant refused to pay the plaintiff for the period during which her services were suspended. Even though there is no express provision in the consultancy agreement for suspension of the plaintiff, it is alleged by the plaintiff that it was an implied term of the agreement that the defendant would not suspend the plaintiff during the duration of the agreement. It is then alleged that the said implied term was breached by the defendant when it suspended the plaintiff on 12 February 2014. It is further alleged that the suspension was unreasonable and without lawful justification. As a result, it is alleged that the plaintiff was denied her contractual rights to provide her services and to be paid her second quarterly remuneration and reimbursable expenses. The plaintiff therefore claims the sum of USD14,250 for her second quarterly payment and $5,202 for reimbursable expenses.
12. By way of an additional or alternative claim, the plaintiff said that by letter dated 30 May 2014 she was advised by the defendant that the consultancy agreement would be terminated pursuant to clause 11 of the agreement. It is alleged by the plaintiff that the termination by the defendant of the consultancy agreement was wrongful and without a proper purpose as it was designed to remove the problem of the plaintiff’s unresolved contractual issues. Furthermore, it is alleged that the termination of the plaintiff was in the circumstances in breach of clause 13 of the consultancy agreement which required the parties to carry out their obligations in good faith and to endeavour to resolve any disagreement in an amicable manner.
13. It is further alleged that the highhanded treatment of the plaintiff by the defendant from the moment the plaintiff raised her concerns about her contractual issues to her termination has totally destroyed her emotionally and financially especially as she had resigned from her previous job in good faith with the intention of performing consultancy services for the defendant for the full term of the consultancy agreement. It is also alleged that the defendant’s deliberate conduct of seeking and obtaining immunity from suit and legal process has exacerbated her emotional distress. Damages are therefore claimed against the defendant as set out in the statement of claim.

The defendant’s strike out motion

14. In response to the plaintiff’s original statement and amended statement of claim, the defendant filed motions to strike out the original statement of claim and the amended statement of claim. The motions are based on essentially two grounds:
    • (a) The defendant has international organisation immunity from suit and legal process and it has not expressly waived its immunity.
    • (b) There is no cause of action under Samoan law for unlawful termination and therefore the statement of claim discloses no cause of action on that basis.

The relevant provisions of the Diplomatic Privileges and Immunities Act 1978

15. Part 111 of the Diplomatic Privileges and Immunities Act 1978 provides for the privileges and immunities of international organisations and persons connected therewith. Section 9 of the Act, insofar as relevant, provides:
    • “(1) This section shall apply to any orgnisation declared by the Head of State, on the advice of Cabinet, to be an organisation of which 2 or more States or the Governments thereof are members.
    • “(2) The Head of State, may from time to time, on the advice of Cabinet, by Order:
      • “(a) Provide that any organisation to which this section applies (hereinafter referred to as the organisation) shall, to such extent as may be specified in the Order, have the privileges and immunities specified in the Second Schedule hereto, and shall also have the legal capacities of a body corporate”.
16. The first immunity provided in the Second Schedule to the Act is the immunity from suit and legal process.

The relevant provisions of the Diplomatic and Immunities (Declared International Organisations) Order 1998

17. Clause 2 of the Diplomatic Privileges and Immunities (Declared International Organisations) Order 1998 provides:
    • “The International Orgnisations listed in Schedule 1 to this Order (hereinafter called the ‘International Orgnisations’) are hereby declared to be organisations of which two or more States or Governments thereof are members”.
18. In terms of clause 3 of the 1998 Order, that Order came into force on 24 December 1998 which was the date on which it was signed by the Head of State. At the time the 1998 Order came into force, the defendant was not listed in Schedule 1 as one of the international organisations to which the Order applied. It therefore had no immunity from suit and legal process at that time.
19. Clause 6 of the 1998 Order provides:
    • “Each of the International Organisations shall have immunity from suit and legal process except insofar as in any particular case it has expressly waived its immunity from suit and legal process. No waiver of immunity shall be deemed to extend to any measure of execution”.
      

The Diplomatic Privileges and Immunities (Declared International Organisations) Amendment Order 2014

20. In terms of clause 1 (1) of the Diplomatic Privileges and Immunities (Declared International Organisations) Amendment Order 2014 which was signed by the Head of State on 18 July 2014, that Order forms part of the 1998 Order which is referred to as the “Principal Order”. In terms of clause 1 (2), the 2014 Order is taken to have commenced on 30 April 1996.
21. Clause 2 of the 2014 Order, then provides:
    • “Schedule 1 of the Principal Order is amended by adding after item 9 the following new item:
      • “20. Secretarial of the Pacific Regional Environment Programme”
22. The effect of the 2014 Order is to make the defendant one of the international organisations entitled to the privileges and immunities provided in the Second Schedule to the Diplomatic Privileges and Immunities Act 1998. One of these immunities, as already mentioned, is the immunity from suit and legal process.

The issues

23. It appears from the submissions of counsel that there are four issues which call for determination. These are the retrospectivity and validity of the 2014 Order, waiver, alternative dispute settlement mechanism, and unlawful termination. I will deal with those issues in that order.

Retrospectivity and validity of the 2014 Order

24. Before dealing with the issue of the retrospectivity and validity of the 2014 Order, I want to refer first to the effect of the 2014 Order on the plaintiff’s action if the Order had not been made to apply retrospectively and there had been no express waiver of immunity. It would appear that if the 2014 Order had not been made to apply retrospectively and there had been no express waiver, its effect would have been to stay the plaintiff’s action which was still pending against the defendant, if a stay of proceedings had been sought by the defendant on the ground of immunity.
25. In Ghosh v D’rozario [1962] 2 A11 ER 640, the defendant, an Indian national, was sued in England in 1959 for slanders alleged to have been uttered by him against the plaintiff in 1956. By February 1960, the defendant had returned to India but he agreed to have his evidence taken in India for the purpose of the plaintiff’s suit. Later in 1960, the defendant returned to London as a member of the official staff of the High Commissioner of India and his advisers moved for a stay of the plaintiff’s suit on the ground of immunity. In the English Court of Appeal, Holroyd Pearce LJ, in a judgment with which Davies LJ and Wilberforce J agreed, said at p.642:
    • “The real point in the case is whether, as a matter of principle, a plaintiff’s diplomatic immunity which comes into existence after an action has been started, and while it is pending, necessitates a stay of those proceedings. It is conceded that had the defendant’s diplomatic immunity existed when the writ was issued, the proceedings would not be maintainable. Further, it is conceded that the steps taken by the defendant earlier in the action when he had no diplomatic immunity cannot constitute any waiver or voluntary acceptance of jurisdiction by the defendant. For he had then no right of immunity which he could waive”.
26. Further on at p.644, Holroyd Pearce LJ said:
    • “It would be no less an affront and an interference to subject an ambassador to actions that were in existence before he acquired his diplomatic status and immunity than it would be to allow a writ to be served on him. Moreover, if a pre-existing action were allowed to proceed against an ambassador, it would create practical difficulties. The Court could not order him or impose any sanction on his conduct...
    • “In my judgment, the general principles that confer diplomatic immunity against the initiation of proceedings confer an equal immunity against the continuation of pre-existing and hitherto properly constituted proceedings”.
27. The principle enunciated in Ghosh v D’rozario [1962] 2 A11 ER 640 is correctly and succinctly stated in the headnote as follows:
    • .“A defendant who becomes entitled to diplomatic immunity after a civil action has been started against him, but while the action is still pending, is entitled to have the proceedings against him stayed even though he took steps in the action when he had no immunity”.
28. Even though Ghosh v D’rozario [1962] 2 A11 ER 640 appears to be a case on State immunity, I am of the opinion that the principle it explained also applies to international organisation immunity. Furthermore, Ghosh v D’rozario shows that a stay of the plaintiff’s action on the ground of immunity could have been the appropriate remedy to seek in this case.
29. As to the issue of the retrospectivity and validity of the 2014 Order, that Order was signed by the Head of State on 18 July 2014 and is taken to have commenced on 30 April 1996. So the 2014 Order applies retrospectively as from 30 April 1996. There is no real dispute that the 2014 Order can be made to have retrospective effect. The 2014 Order was made pursuant to s.9 of the Diplomatic Privileges and Privileges Act 1978 which provides that the Head of State, on the advice of Cabinet, may by Order grant the statutory privileges and immunities to an international organisation to such an extent as may be specified in the Order. The 2014 Order is therefore within the ambit of s.9.
30. There are, however, several objections made by counsel for the plaintiff to the validity of the 2014 Order. The first is that the certificate of immunity issued by the relevant Minister under s.21 of the Diplomatic Privileges and Immunities Act 1978 suggests that the immunity granted to the defendant pursuant to the 2014 Order was for the period 30 April 1996 to ‘current date’ which would be 28 July 2014 being the date of the certificate of immunity. The immunity therefore expired on 28 July 2014. I see no merit in this objection. It is clear from the 2014 Order that the immunity was granted to the defendant pursuant to s.9 of the Act and not pursuant to the certificate of immunity issued under s.21 which is for the different purpose of certifying as conclusive evidence whether any person or organisation is or was granted immunity by virtue of the Act.
31. The second objection by counsel for the plaintiff is that clause 1 (1) of the 2014 Order provides that that Order shall be read and form part of the Diplomatic Privileges and Immunities (Declared International Organisations) Order 1998 and the 1998 Order commenced on 24 December 1998 whereas the 2014 Order commenced on 30 June 1996 which is contradictory to each other. I agree that at face value there is an apparent contradiction between the two dates of commencement. However, the commencement date of the 2014 Order which is later in time and deals with a specific subject is clear enough notwithstanding that the 2014 Order is to be read with and form part of the 1998 Order. There is nothing in the 2014 Order which says that it should have the same commencement date as the 1998 Order. There is also nothing in the 1998 Order which says that the 2014 Order is to have the same commencement date as the 1998 Order.
32. The third objection by the plaintiff is that the plaintiff commenced her action on 1 July 2014 and immunity was granted to the defendant seventeen days later on 18 July 2014 under the 2014 Order which suggests that the purpose of the 2014 Order was to thwart the plaintiff’s action and her right to justice. This is a general objection without any authority cited to support it. The question involved here is whether the Courts can go behind the 2014 Order made by the Head of State on the advice of Cabinet and investigate the motive for the making of the Order. This is an important constitutional question but counsel for the plaintiff did not cite any authority in support of her objection. I express no opinion on this question. Perhaps the question would have become more clear if a motion had been filed seeking a declaration as to the validity of the 2014 Order which is the usual procedure for challenging the validity of a legislative instrument.
33. All in all then, I am not satisfied on the submissions of counsel for the plaintiff that the 2014 Order is invalid.

(b).Waiver

34. It was submitted by counsel for the plaintiff that even if immunity from suit and legal process had been validly conferred under the 2014 Order on the defendant, the immunity had been expressly waived by the defendant. Clause 6 of the Diplomatic Privileges and Immunities (Declared International Organisation) Order 1998 provides that an international organisation shall have immunity from suit and legal press except insofar as it has expressly waived its immunity in any particular case. In terms of clause 1 of the 2014 Order, that Order shall form part of the 1998 Order.
35. The consultancy agreement between the plaintiff and the defendant provides in clause 11 (e):
    • “Termination or expiry of this Agreement will not prejudice any rights or obligations of the Parties which exist, whether under this Agreement, at law, or otherwise, prior to termination or expiry”.
36. Clause 12 provides:
    • “This Agreement shall be governed by the laws of Samoa and subject to the jurisdiction of the Samoan Courts”
37. Clause 13 on dispute resolution then provides:
    • “The Parties shall cooperate to carry out their obligations in good faith and shall endeavour to resolve any disagreement in an amicable manner, including through the use of mediation conciliation processes, prior to taking Court action”
38. In terms of clauses 11 (e), 12 and 13 of the consultancy agreement, the defendant has clearly waived its immunity from suit and legal process. Clause 11 (e) preserves any rights or obligations of the parties which exist under the agreement prior to termination or expiry. Clause 12 provides that the agreement is to be governed by the laws of Samoa and is to be subject to the jurisdiction of the Samoan Courts. Clause 13 then makes it quite clear that the parties shall endeavour to resolve any disagreement in an amicable manner, including through the use of mediation and conciliation processes, prior to taking Court action.
39. In the English case of Standard Chartered Bank v International Tin Council [1987] 1 WLR 641, the defendant, the International Tin Council, was granted immunity from suit and legal process by virtue of the International Organisations Act 1968(UK) and the International Tin Council ((Immunities and Privileges) Order 1972. In 1972, the plaintiff bank offered to lend the defendant £10 million on terms which were accepted by the defendant. One of these terms of the plaintiff bank’s offer was a facility letter in the following terms:
    • “7. Governing Law and Jurisdiction: This facility letter shall be governed by and interpreted in accordance with English law and you hereby irrevocably submit to the non-exclusive jurisdiction of the High Court of Justice in England and to consent to the giving of any relief and/or the issue of any process for enforcement or otherwise against you”.
40. The defendant accepted the facility letter as part of the loan agreement. Subsequently, the plaintiff sued the defendant for an alleged default in repayment of the loan and interest and the defendant relied on its immunity from suit and legal process under the International Tin Council ((Immunities and Privileges) Order 1972. In terms of the 1972 Order, the defendant was granted immunity from suit and legal process except to the extent that it has expressly waived such immunity in a particular case. Bingham J at p.647 held that in the circumstances, clause 7 of the facility letter constituted an express waiver of the defendant’s immunity from suit and legal process.
41. In this case, I conclude that clauses 11 (e), 12 and 13 of the consultancy agreement constitute an express waiver by the defendant of its immunity from suit and legal process. The plaintiff’s action should therefore proceed to a hearing. With respect, I am not able to accept the affidavit evidence for the defendant that the defendant had not waived its immunity.

(c) Alternative dispute settlement mechanism or forum

42. In view of the conclusion I have reached on the issue of waiver, it is not necessary to deal with the issue of alternative dispute settlement mechanisms or forum concerning the immunity of international organisations particularly in the context of employment disputes. However, in deference to the submissions of counsel which extensively canvass this issue of alternative dispute settlement mechanisms, I will say something about it but I will not go into the same details as counsel have done in their submissions.
43. The principal authority in relation to the present issue is the decision of the European Court of Human Rights in the case of Waite and Kennedy v Germany [1999] ECHR 13 which was concerned with a labour dispute between the applicants who were systems programmers and the European Space Agency (ESA) which is an international organisation. When the dispute was brought by the applicants before a German Labour Court, the ESA relied on its immunity from jurisdiction provided in the European Space Agency Convention. The Court upheld ESA’s claim to immunity and declared the applicants actions inadmissible. On appeal to a German Labour Appeals Court, the applicants appeal was dismissed. On further appeal to a German Federal Labour Court, the applicants appeal was again dismissed. The Federal Court considered that immunity from jurisdiction was an impediment to Court proceedings and that an action against a defendant who enjoyed immunity which had not been waived was inadmissible. The dispute eventually ended up before the European Court of Human Rights.
44. In its judgment, the European Court of Human Rights (the European Court)referred to Article IV of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and said at para 38:
    • “38 Pursuant to Article IV § 1 (a) of Annex 1, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency”.
45. The “Council” referred to in Article IV§ 1 (a) is the Council of ESA.
46. The European Court then referred to Article 6 § 1 of the Convention and said at para 50:
    • “50. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations heard before a Court or tribunal. In this way the Article embodies the ‘right to a Court’, of which the right of access, that is, the right to institute proceedings before Courts in civil matters, constitutes one aspect only (see the Golder v the United Kingdom judgment of 21 February 1975... and the recent Osman v the United Kingdom judgment of 28 October 1998...).
47. Article 6 § 1 of the European Convention is similar in terms to Article 9 (1) of our Constitution which provides for the right to a fair trial. This Court has held in Samoa Party v Attorney General [2009] WSSC 23 that the right to a Court is an integral part of the right to a fair trial under Article 9 (1).
48. The European Court then went on to say at para 59:
    • “ 59. The Court recalls that the right of access to the Courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the means sought to achieved”.
49. It appears from the above passage that a limitation on the right of access to the Courts would not be compatible with that right, if the limitation:
    • (a) restricts or reduces the access left to the individual in such a way or to such an extent that the very essence of the right is impaired,
    • (b) does not pursue a legitimate aim, and
    • (c) there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
50. The practical application of the above approach appears from some of the cases cited by counsel, including Waite and Kennedy v Germany [1999] ECHR 13, to be focused on the two requirements that the limitation on the right of access to the Courts does not pursue a legitimate aim and there is not a reasonable relationship between the means employed and the aim sought to be achieved. In applying this two tier approach to the circumstances of the case, the European Court in Waite and Kennedy v Germany [1999] ECHR 13 paras 61-62 referred to the purpose of immunity in international law which is the protection of international organisations against interference by individual governments; the particular significance of the tasks performed by international organisations in an age of global, technical and economic challenges; and the necessity of international organisations being able to function in accordance with uniform internal regulations including service regulations rather than being forced to adapt to differing national regulations and principles. The European Court then said at para 63:
    • “63. Like the Commission, the Court points out that the attribution of privileges and immunities to international organisation\s is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments.
    • “The immunities from jurisdiction commonly accorded by States to international organisations under the organisations’ constituent instruments or supplementary agreements is a long-standing practice established in the interest of the good working of these organisations. The importance of this practice is enhanced by a trend towards extending and strengthening international cooperation in all domains of modern society.
    • “Against this background, the Court finds that the rule of immunity from jurisdiction, which the German Courts applied to ESA in the present case has a legitimate objective”.
51. In relation to the proportionality requirement, the European Court said at paras 67– 69:
    • “67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the Courts in view of the prominent place held in a democratic society by the right to a fair trial”
    • “68. For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicant had available to them reasonable alternative means to protect effectively their rights under the Convention (italics mine).
    • “69. The ESA Convention, together with its Annex 1, expressly provides for various modes of settlement of private-law disputes, in staff matters as well as in other litigation...
    • “Since the applicants argued an employment relationship with ESA, they could and should have had recourse to the ESA Appeals Board... which is ‘independent of the Agency’, has jurisdiction ‘to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member’”.
52. Then at para 72, the European Court said:
    • “72. The Court shares the Commission’s conclusion that bearing in mind the legitimate aim of immunities of international orgnisations..., the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national law. To read Article 6 § 1 of the Convention and its guarantee of access to the Court as necessarily requiring the application of national legislation in such matters would, in the Court’s view, thwart the proper functioning of international orgnisations and run counter to the current trends towards extending and strengthening international cooperation”.
53. I have cited at some length from Waite and Kennedy v Germany [1999] ECHR 13 in order to have a clearer understanding of the judgment in that case. But the nub of the matter, as I see it, for the purpose of the present proceedings, is whether there are reasonable alternative means available to the plaintiff to protect effectively her rights given the immunity from suit and legal process conferred on the defendant as an international organisation. It is not enough to point to alternative means. Such means must also be reasonable.
54. Here, I have assumed that the defendant has not expressly waived its immunity because that is the conclusion I have already arrived at. Counsel for the defendant submitted that in terms of clause 13 of the consultancy agreement, there are alternative means available to the parties for the amicable resolution of any disagreement that may arise between themselves. These alternative means are mediation and conciliation. But it was not shown whether those means were reasonable or adequate. In Waite and Kennedy v Germany [1999] ECHR 13 the alternative means of dispute settlement that was available to the applicants was an Appeals Board. In some of the other cases cited by counsel, the alternative means of dispute settlement available to the parties were an appeals tribunal or arbitration. None of the cases cited by counsel shows that mediation or conciliation was provided as an alternative means for resolving a dispute between the parties to an agreement where one of the parties enjoys immunity. In other words, it is debatable whether the availability of mediation and conciliation as mechanisms of dispute resolution are reasonable alternative means of dispute resolution given the immunity which has been conferred on the defendant. The point about the reasonableness or adequacy of mediation and conciliation as alternative means of dispute resolution was not addressed or sufficiently addressed. In these circumstances, it would not be appropriate for the strike out motion to succeed on this basis. The matter is not plain and obvious to justify striking out or a stay of proceedings.
55. It also appears from the article In The Shadow of Waite and Kennedy [2004] 1 IQLR 69 by August Reinisch and Ulf Andreas Weber, cited by counsel for the plaintiff, that the implications of Waite and Kennedy cannot be stated with a sufficient degree of confidence given subsequent developments in the case law in some European countries and in the United Kingdom. The criteria for determining what would be a reasonable or adequate alternative means of dispute resolution are also not clear from Waite and Kennedy. In these circumstances, it is again inappropriate to strike out.

(d) Unlawful termination

56. Even though one of the two grounds of the defendant’s strike out motion is that there is no cause of action under Samoan law for unlawful termination, this ground was not actively pursued in the submissions of counsel for the defendant. As explained by counsel for the plaintiff in her submissions, the plaintiff has not pleaded a separate cause of action for unlawful termination as such. The pleading in para 23 of the statement of claim which states that “such termination is unlawful” refers back to the pleaded acts of the defendant alleged to have breached the consultancy agreement. It is said that paragraph 23 of the statement of claim is descriptive of the manner in which the consultancy agreement was breached by the defendant.
57. Given the explanation by counsel for the plaintiff which I have decided to accept, there is therefore no cause of action for unlawful termination in the statement of claim. That being so, there is no such cause of action to be struck out.

Conclusion

58. The defendant’s strike out motion is dismissed.
59. 0Costs are reserved.

CHIEF JUSTICE