Adjudicative Function Research Articles

Redundancy as a Legal Strategy to Combat Corruption: Exploring the Potential of Institutional Multiplicity to Create Fail-Safe Systems

Abstract Engineering uses duplication to create fail-safe systems. The existence of two system components capable of performing the same function increases reliability, as the supposedly superfluous component can be turned on if the main one breaks down. Although redundancy ensures that many of our modern conveniences such as computers and planes do not crash, this solution has not been extensively explored in a legal context. This article will articulate some of the advantages of redundancy between different areas of the law (administrative, civil and criminal) and at an institutional level (among bodies performing monitoring, investigative, prosecutorial and adjudicative functions in the same and in distinct jurisdictions). Legal efforts to combat corruption around the world provide illustrative examples of the many advantages of this strategy, but also some of its risks and disadvantages. Far from providing a comprehensive empirical analysis of this subject, this article articulates hypotheses to be tested and proposes that the topic deserves more attention among legal scholars than it has received.

Human rights-based approach to development in Tanzania: a myth or realisable prospect?

This article through a documentary review delves into the practical aspects impeding the realisation of a human rights-based approach to development in Tanzania and the prospects of realising the same. The article contends that Tanzania fails to convincingly implement a human rights-based approach to development due to the unenforceability of the provisions of the fundamental objectives and directive principles of state policy, limitations of the international human rights framework, the underperformance of its legal machinery, lack of awareness of human rights among development institutions, workers, and citizens, as well as a limited and incompetent international human rights framework to guarantee the realisation of a human rights-based approach to development. Against this backdrop, it is recommended that the Tanzanian state align its legislations with both the letter and spirit of human rights regimes, bolstering the capacity of the judiciary to discharge its adjudication function effectively and fostering awareness of human rights among development practitioners and citizens. We posit that ongoing legal system reforms, the expansion of legal studies opportunities, and the active participation of civil society in Tanzania hold the promise of advancing a human rights-based approach to development. Yet, we underscore the pivotal role of a resolute political will in ensuring the success of these endeavours and their effect on Tanzania's aspiration to achieve a developmental paradigm firmly rooted in human rights principles.

Limits of the Evidence Initiative of the Court of First Instance and the Reliable Evidence Procedure

Abstract This article aims to delineate the boundaries of the evidence initiative of the Court of the First Instance, which bears the responsibility to fulfil the goals of criminal proceedings, as outlined in Article 2 § 1 item 1 and § 2 of the Code of Criminal Procedure, from the perspective of evidence reliability, an essential component of the fair criminal trial concept. The court’s evidentiary actions were thus examined through the lens of requirements stemming from Article 6(1) and (3) of the ECHR, especially the principles of independence, impartiality, adversarial process, immediacy, and access to criminal proceeding materials. The article adopts a dogmatic approach, building on an analysis of current national legal standards and the Rome Convention’s provisions, viewed through doctrine and jurisprudence of national courts and the Court in Strasbourg. This makes the publication relevant for both legal scholars and practitioners involved in criminal proceedings. The analysis suggests that the court’s initiative to introduce evidence, its methods of evidence gathering, and access to collected materials during proceedings must not curtail the rights of the parties, especially the accused, to conduct their evidentiary activities. Depriving the court of the primacy of independence and impartiality, restricting the parties’ capacity to engage in dispute in favour of an inquisitorial jurisdictional body violates the right to fair evidentiary proceedings. The court, in safeguarding the principle of material truth, must remember its role as a justice administrator and balance all arguments accordingly. Seeking evidence solely to establish the accused’s guilt contradicts the procedural function of adjudication and compromises the court’s neutrality, making it an extension of the prosecution. Hence, a thorough elucidation of case circumstances by the court should not disempower the parties, particularly regarding their initiative to present evidence.

WTO International Trade Dispute Settlement System and Benefits for Indonesia

International trade is one of the essential pillars of the global economy. International trade can improve people's welfare through increased productivity, diversified production, and lower prices of goods and services. In international trade, it is not uncommon for disputes to occur between business actors from different countries. This study examines the international trade dispute settlement system in the World Trade Organization (WTO) and its benefits for Indonesia. This research uses normative legal research methods. The data collection technique used in this research is a literature study. The data analysis technique used in this research is qualitative analysis. The results show that the dispute settlement mechanism through the WTO is part of the WTO adjudication function as a world trade organization. The stages of dispute settlement involve consultations, panel formation, panel procedures, and ratification of panel reports, judicial review, and implementation. For Indonesia, participation in the WTO dispute settlement system brings several benefits, such as increasing legal certainty in international trade, protecting Indonesia's trade interests, and increasing the competitiveness of Indonesian products in the international market.

Urgency Supreme Court Circular Letter Number 2 of 2023 in the Judicial Process of Interfaith Marriage Registration

The Supreme Court of the Republic of Indonesia has issued Circular Letter Number 2 of 2023, stipulating that courts are not permitted to approve requests for the registration of interfaith marriages. However, it is crucial to highlight the principle that Indonesian judges must exercise their duties independently, devoid of external interference. Judges are expected to uphold qualities of independence, impartiality, fairness, and responsibility, refraining from influencing the provision of material to litigants to prevent moral distortion. This article aims to elucidate the role of the aforementioned circular letter concerning the judge's independence within the judicial process in Indonesia. The research methodology employed involves normative legal methods, coupled with a structured analysis of legal norms and principles. The findings of the research underscore two key points. Firstly, the urgency of regulating the determination of marriages involving different religions and beliefs in the judicial process is rooted in the objective of aligning court resolutions with the philosophical underpinnings of the Indonesian nation. Secondly, it is emphasized that the Circular Letter in question does not hold binding authority for judges in the adjudication of cases, particularly those involving interfaith marriages. The autonomy of judicial power, as enshrined in the 1945 Constitution of the Republic of Indonesia and further detailed in Law Number 48 of 2009 concerning Judicial Power, affords judges the freedom to independently decide on cases brought before them. This regulatory framework underscores the imperative of preserving the unfettered discretion of judges in their adjudicative functions.

Validity of the Arbitration Clause in the International Employment Contract: the Viewpoint of the GCC Countries

In this paper we will evaluate the significance of the arbitration clause in international employment contracts. Our aim is to understand how this particular alternative dispute resolution (ADR) mechanism is utilized in the Gulf Cooperation Council (GCC) countries. Even though the law in several countries aims to protect employees by prohibiting arbitration agreements (due to considerations of employee protection), we argue that it should be optional for the employee to enter into labour agreements with arbitration clauses. This is especially important when the arbitration agreement achieves the employees’ interests, and is agreed upon with informed and clear consent. We will engage with arguments which advocate the prohibition of arbitration agreements within Individual Employment Contracts (IECs); whilst taking the position that the flexibility, speed, confidentiality and predictability of arbitration provides specific advantages to international employees compared to litigation before court. Furthermore, in the context of a desire on the side of GCC countries to attract high-skilled labour (and when there are many misconceptions regarding the adjudicative functions of labour law courts in the GCC), arbitration clauses can play a significant role in mediating between different legal cultures.

Counterclaims in Investment Arbitration: Towards an Integrated Approach

Abstract It is widely accepted that counterclaims may not be used as a means to exceed the limits of a tribunal’s jurisdiction, while they must at the same time be closely connected to the other party’s claim. However, in the particular context of investment arbitration, these two propositions create a tension that has led to a problematic and unfair construction of the investor-State dispute settlement mechanism. This article explores the foundations for a better, more integrated approach. It argues that jurisdiction over counterclaims should be seen as incidental to the one already established over the original claim, allowing tribunals to hear a wider range of counterclaims. This is inherent to the exercise of a tribunal’s adjudicative function, and rests on a foundation not only of implied consent, but also on one of principle. The approach presented here has the potential to protect counterclaims as a matter of procedural fairness and to address some of the reasons for the backlash against international investment arbitration law.

From Being Deprived to Bestowing Privileges – Artistic Reflections of the Wrestlers /Mutri/ Subculture in The Novels by Georgi Stoev

One of the most characteristic phenomena of the Transition in Bulgaria in the 1990s were the socalled Wrestlers’ brigades. Their emergence and rise left a lasting imprint on the social fabric and provided the initial impetus for the formation of the so-called ‘Wrestlers/ Mutri’ subculture. In a situation of rapidly changing public, economic and social environments in Bulgaria after the fall of the totalitarian regime in 1989, the Wrestlers’ brigades gave young men with modest family backgrounds the opportunity to become part of a set enjoying a progressively privileged economic and social circumstance. In the aftermath of the state's abdication of its regulatory and adjudicative functions, these groups and their individual members gained access to various power levers and transformed from privileged to privileging — granting privileges — both to in-group members (family, friends, etc.) and outsiders such as politicians, business people, artists, etc. This process of transformation from disadvantaged to privileged in this context has not yet been fully explored. The available documentary and archival information is currently limited and difficult to access. Fiction as a parallel source allows us to consider these processes from a different angle. The purpose of the proposed paper is to analyse the novels of Georgi Stoev – admittedly a former member of a Wrestler’s group, as a source of information about the process of transformation from disadvantage to privilege and of specific subcultural traits. By comparing the information in the eight books in the ‘Witnesses of the Times’ and ‘BG Godfather’ series with publicly available documents, studies and publications, a deeper understanding is obtained of the values and dynamics of the Wrestlers/ Mutri subculture in Bulgaria at the end of the 20th and the beginning of the 21st century.

The Court of Justice of the European Union as a legal field

AbstractReflexive sociology can contribute to a more holistic understanding of the role of the Court of Justice of the European Union (CJEU/Court) as a relational actor. This article draws on the Bourdieusian concept of (legal) field as an analytical framework to trace the power relations between the Court and its interlocutors. The analysis develops around four distinct conceptualisations of the Court as a legal field, ranging from its institutional architecture to the three mainstream judicial routes for a case to reach its docket (preliminary reference procedure, action for annulment and infringement procedure). These showcase the varied interactions among the different actors that either shape the Court as an institution or engage with it in the course of its adjudicative function. According to field theory, these interactions take the form of power struggles between the actors comprising a legal field in order to take control of the determination of the law. The actors of a legal field enjoy different positions that formulate their objective relations, and which are contingent on their disposition and capital. Each of the conceptualisations of the Court as a legal field in this article points to distinct power struggles and relations among a similar set of actors. Consequently, using field theory can be a very useful tool to contextualise the role of the Court and to systematically study its judgments, modus operandi and position in the European legal field under a reflexive lens that accentuates the significance of social space and power relations, and pushes for socio-legal and empirical insights.

Reflections on the Governance Function of Compulsory Dispute Settlement in the Legal Order for the Ocean

Abstract This article takes the fortieth anniversary of the United Nations Convention on the Law of the Sea as an opportunity to reflect on the role that the compulsory dispute settlement system under Part XV of the Convention plays in maintaining the legal order for the ocean. It posits that, in addition to the more traditional understandings of the dispute settlement function and law-ascertainment function of international adjudication, a clear governance function can be discerned. By developing a three-fold typology of ways in which this governance function manifests itself in the use and exercise of compulsory jurisdiction under Part XV, the aim is to shed light on the multifaceted role of compulsory dispute settlement in maintaining the legal order for the ocean in a way that accounts for the changing expectations of States Parties over time.

Assessing Legal Challenges on Passport Issuance Process in Indonesia as Transnational Crime Prevention by Using CIPP Analysis

The Directorate General of Immigration is one of the agencies within the Ministry of Law and Human Rights, Republic of Indonesia. The technical tasks carried out by an Immigration service provider is to issue the Republic of Indonesia Travel Document (DPRI) or Passport. However, in issuing passports, two functions run simultaneously, which are public service providers and immigration law enforcement. This study will identify legal obstacles in the process of issuing passports at the Immigration Office Class II Non-TPI Tasikmalaya, using passport refusal data, interview, and Customer Satisfaction Index (IKM) in the period January to November 2021, which were analyzed using qualitative doctrinal law methods, through policy evaluation with the scheme Context, Input, Process, and Product (CIPP). The results of this study are that there are no legal issues in the implementation of the passport issuance SOP, where the average evaluation score reaches 19.88 out of 20 (very good). On the other hand, several challenges need to be observed to reduce criminal acts between countries, namely: (1) The condition of the system facilities that need to be improved to support the adjudication function, which potentially slipped away the applicant who are in the blacklist (2) There is no interview guide for officers as a legal basis for justifying applicants who will work. non-procedural and other potential transnational crime, and (3) The need for confirmation through communication media regarding additional requirements, such as letters of recommendation if intending to work, to avoid potential legal claims.

Rethinking Due Process of Law in the Administrative Sphere

This article discusses the scope of the constitutional due process clause in Brazilian administrative law, based on an analysis of the Brazilian Constitution, the Fifth (1791) and Fourteenth (1868) Amendments to the U.S. Constitution, the International Covenant on Civil and Political Rights, and the European and Inter-American human rights systems. The author concludes that since the due process clause (Brazilian Constitution Article 5.54, namely, “no one shall be deprived of liberty or property without due process of law”) was inspired by the U.S. Constitution, Brazilian legislators should exercise their powers of discretion in policy-making to adapt the clause to the realities of the Brazilian administrative authorities and to the experience of the quasi-independent authorities that perform the adjudicative function under U.S. administrative law.

ANYONE BUT YOU, M’LORD: THE TEST FOR RECUSAL OF A JUDICIAL OFFICER

It is trite that judicial officers should perform their adjudicative functions in a trial or hearing without bias or predisposition in favour of any party. Judicial officers must act independently and impartially in discharging their duties (see Van Rooyen v The State 2002 5 SA 246 (CC) par 31). Should this not be the case, a party can move an application for the recusal of the presiding officer. Lately, there have been a number of these applications, including the successful application for the recusal of Ngoepe JP on the first day of therape trial of Jacob Zuma, former Deputy President of South Africa. According to media reports, the reason cited for the recusal was “to protect the credibility of the judiciary” (see “Zuma Judge Steps Aside to Defuse Bias Charges” 2006-02-14 Business Day). Ngoepe JP is alleged to have said:“The legal points for the recusal are not sound and do not hold. However, this is no ordinary matter and is a high-profile case. These considerations invite me to look beyond the personal fears of [Zuma] and take a broader view.”But what are the legal requirements that must be satisfied for a successful application for the recusal of a judicial officer? Before a discussion of the test for recusal, the question of which sources regulate the doctrine of recusal will be briefly discussed.

You're Fired! International Courts, Re-contracting, and the WTO Appellate Body during the Trump Presidency.

A long‐standing debate amongst international relations scholars has surrounded the question of whether international institutions with judicial authority enjoy more autonomy and discretion than other global institutions. This is mainly because international courts are established as impartial third‐party actors tasked with performing adjudicative functions for conflicting parties. As such, the delegation contracts of international institutions with judicial authority are expected to minimize control by states, even in cases where the members of a court engage in judicial overreach. This article contributes to that debate by examining the case of the crisis of the WTO Appellate Body. The article analyzes the Trump administration's successful efforts at rendering dysfunctional one of the most powerful courts in the international system. The findings showcase how powerful states are capable and willing to take advantage of the available control mechanisms and the institutional opportunity structures inherent in the design of international courts. The article speaks to the scholarship on the contestation of international institutions. The analysis relies on original data obtained through 22 interviews with WTO officials, state representatives, and experts.

Invoking Systemic Ideals or Systemic Rules? Jurisdiction in WTO and Investor-State Dispute Settlement

How do international economic adjudicators approach the question of systemic integration? Systemic integration could be a powerful tool in the defragmentation of the international legal order. Yet, it is a complex tool, coalescing between a legal rule of interpretation and normative ideal of a coherent international legal order. By undertaking an empirical and doctrinal review of the decisions of the World Trade Organization (WTO) and investor-state dispute settlement mechanisms, the paper illustrates both the underutilisation and inconsistent application of the principle within the reasoning of those adjudicators. The paper analyses how international economic law adjudicators attempt (or perhaps fail) to define the indeterminate legal authority of systemic integration. What is contributing to this methodological pluralism in the application of systemic integration? The paper investigates both the competing ‘law-applying’ or ‘law-making’ adjudicative functions and the limitations of tribunal jurisdiction as possible explanations for the competing perceptions of the role of systemic integration in international economic dispute resolution. The underutilisation and inconsistency of systemic integration in the WTO and investor-state dispute settlement mechanisms highlights the need to bridge the gap, both theoretically and doctrinally, in understanding how systemic ideals fit within legal rules.

The Adjudication Function of the Election Supervisory Body (ESB) in Realizing Election Justice

ESB's adjudication role and the nature of its presence in Indonesia's electoral justice system are the focus of this research. In a normative juridical approach and analytic descriptive, the researcher examines the legal norms in relevant laws and regulations to determine whether they have been violated. Indonesia's Election Supervisory Board (ESB) was created to ensure free and fair elections that adhere to democratic principles. The election adjudication function is attributable to Law Number 7 of 2017 concerning the ESB as an institution with the authority to resolve electoral process disputes. The existence of the ESB institution has made many positive contributions to the process of democracy development in Indonesia, the large number of violations originating from findings and reports handled by the ESB, is able to provide a deterrent effect for perpetrators of violations of laws and regulations, both election participants and election organizers.

“The Rust of Antiquity”?: Print Culture, Custom, and the Manorial Court Guidebooks of Early Modern England

Early modern England’s manor courts were local institutions controlled by landlords, operated by their stewards, and governed by customary law. They fulfilled a wide variety of legislative, punitive, and adjudicative functions regarding the regulation of community resources and the resolution of minor conflicts between tenants. Starting in the mid-sixteenth century, publishers in London began to print short, accessible manuals that explained how to operate these manor courts. The eight manor court guidebooks published in English from 1561 to 1666 that are examined in this article illustrate the important role that manor courts continued to play in daily life. But their publication also contributed to the codification, and eventually the gradual corrosion, of localized customs that formed the foundation of the courts’ jurisdiction. Custom and communal memory continued to play a large role in the organization of early modern English society, but these unwritten customs were increasingly in tension with broader cultural impulses towards codification and uniformity that were reinforced by the published guidebooks. The impact of these guidebooks was ultimately to delimit the jurisdiction of the courts, encourage the professionalization of court officials, diminish the significance of local customs, and confirm the authority of landlords by articulating their positions as local leaders. Manorial court guidebooks are useful illustrations of how the educated elite in early modern England saw customary law as a necessary but old-fashioned form of justice without a clear role in the country’s legal system in the future.

Administrative Functions of Implementation, Control of Administrative Decisions, and Protection of Rights

Abstract This essay includes a comparative analysis of the traditions of administrative law in Latin American and their impact on the contemporary scene and trends in the general orientations of its administrative justice systems. This analysis is limited to Latin American countries of Iberian origin under the jurisdiction of the Inter-American Court of Human Rights (“I/A Court H.R”). The method followed by the author is to point out the roles attributable to the administrative authorities and to attempt to identify a distinction in Latin America between the “administrative function of implementation”, “control of the legality of administrative decisions” (unrelated to any adjudicative function) and the “protection of rights” (by means of an adjudicative function) while examining their historical genesis and possible future trends. From that perspective, the text discusses certain administrative powers, such as disciplinary or other regulatory powers, and their forms of concrete application; the prerogatives and instruments of the authorities and of their decision-making employees in the exercise of the functions of implementation; the control of administrative decisions by those authorities themselves and by external bodies; and judicial and extrajudicial protection of rights against administrative decisions. The author concludes that Latin American administrative law, despite the fact that its civil-law substantive roots have always coexisted with judicial review typical of common law, is currently tending, on the one hand, to approximate the U.S. model of administrative adjudication and, on the other, to adapt to I/A Court H.R case law with respect to the administrative function of implementation in harmony with the fundamental right to good administration which, combined with a critical re-examination of diffuse control of the legality of administrative rules in court, would safeguard the true role of adjudicating bodies (administrative authorities or courts) in their function of protecting individual rights for the sake of more fair and equitable administrative justice.

Examining institutional translation through a legal lens

Abstract Studies of institutional translation have traditionally focused on European Union (EU) institutions and legislative genres. In order to develop a more comprehensive characterization of translation at international organizations beyond EU supranational law, this study compares a full mapping of multilingual text production at EU institutions to that of two representative intergovernmental organizations (IGOs), the United Nations (UN) and the World Trade Organization (WTO), over three years (2005, 2010, and 2015) in three common official languages (English, French, and Spanish). The corpus-driven quantitative analysis and categorization of all texts from a legal-functional perspective corroborate the interconnection of a wide range of textual genres that perform, support, or derive from central law-making, monitoring, and adjudicative functions, or fulfill other administrative purposes. The findings also highlight interinstitutional variation that reflects the features of each legal order, in particular the prominence of hard law-making at the EU (with a high proportion of drafts and input documents) as opposed to larger translation volumes in monitoring procedures at the UN and the WTO. This mapping is considered instrumental to further analyze legal and other specialized translation practices in international institutional settings, and ultimately to inform translator training and translation quality management.

Justicia Artificial: Oportunidades Y Desafíos

It is difficult to determine how developments in artificial intelligence (AI) can reformulate the judicial function. However, it can be argued that developments can change the interactive nature of the function, varying the adjudicative function with the potential to eliminate judges from that function. Although the evolution in judicial artificial intelligence is in its infancy, there are signs that it will be more relevant and there are developments, although somewhat unpopular, to introduce the “AI judge” in relation to certain categories of disputes. In terms of these developments and those related to AI, what will it mean to be a judge in the next 10, 20 or 30 years? Each of these issues can be informed to some extent by examining recent changes in the context of how lawyers, courts and others currently use technology. For example, the shift to a greater use of artificial intelligence in the form of predictive coding, predictive analytics and automatic learning suggests that the use of law by the law firm is already changing the way in which the material is presented to judges and the client’s risk is evaluated.