Throughout time, this strict distinction between contractual and statutory elements was tempered as the jurisprudence of international administrative law moved towards a more substantive approach to the notion of acquired rights, to extend the protection to terms of appointment set out in the internal rules of the Organizations in certain circumstances. An acquired right is understood to be the staff member may expect to “one survive any amendment of the staff rules” (Ayoub, para. 12). The test for determining whether a modification to a term or condition of service violates an acquired right, as it derives from jurisprudence of international administrative tribunals including the leading cases of the World Bank de Merode et al. Administrative Tribunal and from the ILOAT, may be summarised as Ayoub follows. Firstly, the Tribunal must determine if the modification to the rules alters a term of employment that is and essential in the balance of rights and “fundamental duties of the staff member” (de para. 42; see also para. 13). Merode et al., Ayoub, The notion of term”, which is derived from the common law of “fundamental contracts, is particularly well captured by Lord Upjohn of the House of Lords in the case Suisse Atlantique Société d’Armement Maritime v. N.V. Rotterdamsche [1967] 1 AC 361: Kolen Centrale A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that breach of that term may at once and without any further reference to the facts and circumstances be regarded by the innocent party as a fundamental breach. A fundamental and essential term of employment may be expressed in the staff members’ letters of appointment or in the internal laws of the Organization. As the World Bank Administrative Tribunal held in some de Merode et al., “[i]n cases the distinction will rest upon a quantitative criterion; in others, it will rest on qualitative considerations”. However, a term of employment which is explicitly set out in a letter of appointment is presumed to be fundamental and essential (Ayoub, at paras 14-15, at para. 44). Mertens, de Merode et al.,
Throughout time, this strict distinction between contractual and statutory elements was tempered as the jurisprudence of international administrative law moved towards a more substantive approach to the notion of acquired rights, to extend the protection to terms of appointment set out in the internal rules of the Organizations in certain circumstances. An acquired right is understood to be “one the staff member may expect to survive any amendment of the staff rules” (Ayoub, para. 12). The test for determining whether a modification to a term or condition of service violates an acquired right, as it derives from jurisprudence of international administrative tribunals including the leading cases de Merode et al. of the World Bank Administrative Tribunal and Ayoub from the ILOAT, may be summarised as follows. Firstly, the Tribunal must determine if the modification to the rules alters a term of employment that is “fundamental and essential in the balance of rights and duties of the staff member” (de Merode et al., para. 42; see also Ayoub, para. 13). The notion of “fundamental term”, which is derived from the common law of contracts, is particularly well captured by Lord Upjohn of the House of Lords in the case Suisse Atlantique Société d’Armement Maritime v. N.V. Rotterdamsche Kolen Centrale [1967] 1 AC 361: A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the facts and circumstances be regarded by the innocent party as a fundamental breach. A fundamental and essential term of employment may be expressed in the staff members’ letters of appointment or in the internal laws of the Organization. As the World Bank Administrative Tribunal held in de Merode et al., “[i]n some cases the distinction will rest upon a quantitative criterion; in others, it will rest on qualitative considerations”. However, a term of employment which is explicitly set out in a letter of appointment is presumed to be fundamental and essential (Ayoub, at paras 14-15, Mertens, de Merode et al., at para. 44).
Quijano.docx