Foreign Judges in the Pacific, Anna Dziedzic (2021)

This chapter examines the period following the departure of the colonial judges when the Tanzanian government appointed both foreign and local judges to the High Court Bench and magistracy. It argues that foreign judges from West Africa and the West Indies served as a stepping stone between a colonial Bench and a local one. It explores their position in the new nation and responses to early executive encroachment on the independence of the judiciary. This chapter also analyses the backgrounds and experiences of the first Tanganyikan African judges, including those who were trained abroad and at the Faculty of Law in Dar es Salaam. It asserts that the process of decolonising the Bench concluded in 1971 with the appointment of the first Tanganyikan African Chief Justice.

We study the value of foreign judges and foreign case citations for emerging courts in postcolonial democracies, with a specific focus on the Hong Kong Court of Final Appeals (HKCFA). The HKCFA, Hong Kong’s highest appellate court since the transfer of its sovereignty to China, features foreign judges as full members of the court. Using a novel dataset of all publicly available HKCFA decisions from 1997 to 2020, we show that there is a significantly higher number of foreign case citations in cases where foreign judges have participated. Further analyses show that this correlation is stronger where the Hong Kong government is a disputing party, and more specifically, where the court rules in favor of the Hong Kong government. The findings are consistent with the possibility that foreign judges’ expertise in foreign case law is relevant for upholding the perception of the court’s independence from the executive branch. This explanation is in line with existing theories on the role of foreign judges on domestic courts.

Foreign judges have had a longstanding role on Hong Kong’s Court of Final Appeal. In 2020, this tradition faced significant challenges, as the People’s Republic of China enacted a new National Security Law for Hong Kong. This short article examines the implications of the new law for the foreign judges on Hong Kong’s Court of Final Appeal. It tracks the debates about the potential exclusion of foreign judges from hearing national security cases and the difficult question of judicial resignations. The article explains how these issues take on greater significance because of the distinctive rationale for the use of foreign judges in Hong Kong, where foreign judges are understood to signify the distinctiveness of Hong Kong’s legal system as well as its quality.

Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

The present article aims to investigate whether it is possible to promote concerted acts between Brazilian judges and courts from foreign countries in order to enforce judicial orders issued by the Brazilian Judiciary, which protect the rights of nationals harmed by international companies whose effects extend beyond Brazil's territorial limits, as exemplified by Article 69, section IV, of the Brazilian Code of Civil Procedure, regarding national cooperation. The act of communicating not only within a specific space (loci) but particularly beyond territorial borders has never been so in vogue. A mere glance at today's society, heavily influenced by the interactive communication of the current Digital Age, reveals that communications − whether through text messages, videos, audios, sounds, voices, or images—barely respect territorial borders. As a product of society, law has always been in constant flux, with its paradigms, dogmas, conceptions, ideas, and thoughts evolving throughout the history of Western civilisation, supported by the Roman-Germanic legal tradition. It is not surprising to assert that civil procedural law has changed or is profoundly changing over the last thirty years. However, what is surprising is not the constant and uninterrupted possibility of change in Brazilian civil procedural law, as this has always occurred. It is the intensity, speed, and breaking of fundamental premises that formed the foundation of Brazilian civil procedural science, such as the conceptions of jurisdiction and competence based on territoriality. The central question of this study is whether it would be possible to build a dialogue between Brazilian courts and judges of foreign countries with equivalent jurisdiction, enabling coordinated actions between cooperative national and foreign judges.

Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia’s foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court’s tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

This chapter concentrates on interstate arbitration and foreign judges. Interstate arbitration is identified by the sources as a genuine Greek tradition, attested from the Archaic period, which was employed and fostered by other powers, such as the Hellenistic Kings and Republican Rome. It allowed two parties in conflict to solve disputes by resorting to the judgment of a third party agreed by both. Its use contributed to the establishing of forms of international law, encouraging the poleis to identify a set of shared principles and rules, at least for territorial disputes, the most common kind of controversy. The use of foreign judges is another, more recent, feature of judicial relations between poleis. In the Hellenistic period, small groups of people were elected by their city to conduct trials between citizens of another polis, according to the laws of that polis, where local tribunals no longer worked on a regular basis.

The World Trade Organization Appellate Body (AB) is an interesting creature. It was not meant to hold the position it currently does. Yet, it is a part of the most successful system of international dispute settlement. Its ‘faceless, foreign judges’ (James Bacchus, Reflections of a Faceless Foreign Judge, in Trade and Freedom (Cameron May Publishers 2004)) have developed jurisprudence that is staggering in size and complexity. The AB is loved by some, sharply criticized by others. Despite having a ‘permanent seat’ on the AB, the United States (US) is (and has been) unhappy. It is currently blocking the selection process for these faceless judges, and will not budge till its concerns are addressed. Time is running out for the AB and soon it will not be able to function. This article examines US’s objections and the role of the AB It then proposes a way forward, in case the AB does end up drawn and quartered.

The use of foreign judges is an exceptional phenomenon in world experience. That judges, particularly on a state’s highest courts, will be citizens is often taken for granted in academic and practice-oriented literature on judging. However, foreign – or non-citizen – judges sit on domestic courts in over 30 jurisdictions across the world. Given the majority of these jurisdictions are Commonwealth states in Africa, the Caribbean and the Pacific, readers of the Commonwealth Judicial Journal might be one of the rare audiences for whom the use of foreign judges is a familiar practice. The use of foreign judges is a largely under-studied phenomenon. It raises a host of practical and theoretical questions. Just how does foreign judging work in practice? How might the constitutional and judicial systems of states accommodate the use of foreign judges? To what extent, if at all, does the nationality of the judges on a domestic court matter? This short article outlines some responses to these questions, drawing on insights from the practice of foreign judging in Pacific island states.

The present study investigated the identification of communication styles. Native and foreign adult judges viewed 60 audiovisual clips of women who were instructing one of four listeners: a child, a foreign adult speaker, a mentally retarded adult, or a native adult speaker of normal intelligence. The judges were asked to identify the listener in each clip. Overall, native judges were more accurate than foreign judges at identifying the listeners. In addition, more listeners were accurately identified by the native and foreign judges when the listener was a child or a normal native adult speaker Systematic errors suggest that accuracy in judgments may be influenced by similar and overlapping linguistic and paralinguistic features contained in the special communication styles and previous expectations about the listener groups.

Foreign judges sit on domestic courts in over fifty jurisdictions worldwide. They serve on ordinary courts, including apex and constitutional courts, as well as specialist courts, such as international commercial courts and hybrid criminal tribunals. This Handbook presents the first global comparative study of this long-standing, diverse and evolving practice, from colonial precedents to new forms of foreign judging in contemporary conditions of globalisation. Chapters by scholars of law, politics and history, and reflections by judges themselves, provide detailed information and critical analysis of foreign judging across Africa, Asia, the Caribbean, Europe, the Middle East and the Pacific. The chapters examine the notion and relevance of foreignness, rationales for foreign judges, and the implications for judicial identity, adjudication, independence and accountability. Focusing on an underexplored issue that features mainly in small states and jurisdictions of the Global South, this Handbook challenges assumptions and expands knowledge about courts and judges.

The concept of ‘nation’ in Bohemia and Moravia at the turn of the 19th century

In the years since it was established on 1 July 1997, Hong Kong's Court of Final Appeal has developed a distinctive body of new law and doctrine with the help of eminent foreign common law judges. Under the leadership of Chief Justice Andrew Li, it has also remained independent under Chinese sovereignty and become a model for other Asian final courts working to maintain the rule of law, judicial independence and professionalism in challenging political environments. In this book, leading practitioners, jurists and academics examine the Court's history, operation and jurisprudence, and provide a comparative analysis with European courts and China's other autonomous final court in Macau. It also makes use of extensive empirical data compiled from the jurisprudence to illuminate the Court's decision-making processes and identify the relative impacts of the foreign and local judges.

In intersystemic cases, a court applies the law of a foreign system. Scholars have argued that the court ought to use the interpretive methodology of the foreign system’s courts. I argue against that intuitive position. First, interpretive methodology is not bound up with primary rights and duties such that it constitutes substantive law for conflict of laws purposes. Second, although interpretive methodology has epistemic value and may affect case outcomes, a given methodology might not have the same epistemic value or the same effect on outcomes for differently situated interpreters. Further, the approach that the foreign judges take to interpreting their own law is necessarily anchored to the foreign system’s rule of recognition, which is not true of the approach of external judges. Descriptive facts might align such that external interpreters would have to use the internal methodology to identify the applicable law, but that’s an empirical question the answer to which will vary from case to case.

Lord Cromer, British Consul-General in Egypt and virtual ruler of the country, was fond of arguing that Egypt could never become a homogeneous, unitary nation state, like Britain or France. Because of its location astride the Suez Canal and at the meeting point of Africa and Asia, the country, Cromer believed, would always attract large foreign populations and would be of vital importance to foreign powers. Its institutions must take account of diverse interests and peoples. To be sure Cromer used this vision self-seekingly, denying Egyptian nationalists many of their demands for increased self-government. But he had to heed the foreigners in Egypt, for they had become an influential group in the nineteenth century. A booming economy, peace and political stability, uninterrupted except for the short-lived ‘Urābī revolt (1879–1882), the fashioning of European law courts, called the Mixed Tribunals, administering French law through foreign judges, and then the presence of British troops and administrators from 1882 onwards all conspired to make Egypt seem an attractive Middle Eastern country to British, French, Belgian, Italian, Greek, Armenian, and Syrian immigrants.