Administrative Tribunals Research Articles

Ombudsmen and Administrative Law – Bright Stars in a Parallel Universe?

The proliferation of ombudsman systems since the middle of the 20th century has been driven substantially by lawyers. But although ombudsmen feature in modern administrative law textbooks, lawyers do not always regard the work of ombudsmen as being an integral part of their own professional domain. There is ambiguity about how ombudsmen fit into administrative justice systems and how their functions relate to those of administrative courts and tribunals. Ombudsmen operate in diverse ways; some of them are more legalistic in their approach than others. It is misleading to see them merely as small claims tribunals, providing a cheap alternative to courts; rather, they should be seen as a valuable means of alternative dispute resolution, complementing judicial mechanisms of administrative justice. Apart from redressing the grievances of individual citizens, another important function performed nowadays by many ombudsmen is to address systemic defects in public administration and promote good administrative practice.

New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

We discuss the limitations and rights which may affect the researcher’s access to and use of digital, court and administrative tribunal based information. We suggest that there is a need for a European-wide investigation of the legal framework which affects the researcher who might wish to utilise this form of information. A European wide context is required because much of the relevant law is European rather than national, but much of the constraints are cultural. It is our thesis that research improves understanding and then improves practice as that understanding becomes part of public debate. If it is difficult to undertake research, then public debate about the court system – its effectiveness, its biases, its strengths – becomes constrained. Access to court records is currently determined on a discretionary basis or on the basis of interpretation of rules of the court where these are challenged in legal proceedings. Anecdotal evidence would suggest that there are significant variations in the extent to which court documents such as pleadings, transcripts, affidavits etc. are made generally accessible under court rules or as a result of litigation in different jurisdictions or, indeed, in different courts in the same jurisdiction. Such a lack of clarity can only encourage a chilling of what might otherwise be valuable research. Courts are not, of course, democratic bodies. However, they are part of a democratic system and should, we suggest – both for the public benefit and for their proper operation – be accessible and criticisable by the independent researcher. The extent to which the independent researcher is enabled access is the subject of this article. The rights of access for researchers and the public have been examined in other common law countries but not, to date, in the UK or Europe.

How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?

How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert? Get access Nassib G. Ziadé Nassib G. Ziadé Deputy Secretary-General, Visiting Professor, Editor-in-Chief and former Executive Secretary **International Centre for Settlement of Investment Disputes (ICSID); University of Miami School of Law; ICSID Review—Foreign Investment Law Journal; World Bank Administrative Tribunal Search for other works by this author on: Oxford Academic Google Scholar ICSID Review - Foreign Investment Law Journal, Volume 24, Issue 1, Spring 2009, Pages 49–64, https://doi.org/10.1093/icsidreview/24.1.49 Published: 01 March 2009

Protection of Rights: Experiences with Hierarchical Recourse and Possibilities for the Future

PROTECTION OF RIGHTS: EXPERIENCES WITH HIERARCHICAL RECOURSE AND POSSIBILITIES FOR THE FUTURE Kurt Martens* Introduction One of the most eagerly awaited innovations to be inserted in what would become the 1983 Code of Canon Law was, without any doubt, the proposed law on administrative procedures, hierarchical recourse, and administrative tribunals. Even before Blessed Pope John XXIII announced on January 25, 1959 that he would not only convoke an ecumenical council, but would also organize a synod for the diocese of Rome and revise the 1917 Code of Canon Law,1 canon lawyers had pointed to the lack of protection of rights in the Church’s legal system, complaining especially about excessive discretionary power exercised by the executive branch.2 It should be noted, however, that an efficient system of protection of rights against the executive branch had existed in the Church for about 800 years: the extrajudicial appeal or appellatio extrajudicialis , whereby an aggrieved party could appeal an administrative decision to a judge or tribunal. This form of protection of rights was forThe Jurist 69 (2009) 646–702 646 * Associate Professor, School of Canon Law, The Catholic University of America, Washington D.C. 1 John XXIII, Sollemnis Allocutio ad Emos Patres Cardinales in Urbe praesentes habita, die XXV ianuarii anno MCMLIX, in coenobio Monachorum Benedictinorum ad s. Pauli extra Moenia, post Missarum sollemnia, quibus Beatissimus Pater in Patriarchali Basilica Ostiensi interfuerat, AAS 51 (1959) 65–69, esp. 68: “Pronunciamo innanzi a voi, certo tremando un poco di commozione, ma insieme con umile risolutezza di proposito, il nome e la proposta della duplice celebrazione: di un Sinodo Diocesano per l’Urbe, e di un Concilio Ecumenico per la Chiesa Universale. . . . Esse condurranno felicemente all’auspicato e atteso aggiornamento del Codice di Diritto Canonico, . . .”. 2 For examples of such concerns, see Corrado Bernardini, “Problemi di contenzioso amministrativo canonico specialmente secondo la giurisprudenza della Sacra Romana Rota,” in Acta Congressus Iuridici Internationalis. VII saeculo a decretalibus Gregorii IX et XIV a codice Iustiniano promulgatis, Romae 12–17 novembris 1934, IV (Rome: Pontificium Institutum Utriusque Iuris, 1937) 357–432; Ignatius Gordon, “De iustitia administrativa ecclesiastica tum transacto tempore tum hodierno,” Periodica 61 (1972) 296–298; Klaus Mörsdorf, Rechtsprechung und Verwaltung im kanonischen Recht (Freiburg im Breisgau: Herder, 1941) 188–189. mally abrogated in 1908. We will get back to this toward the end of our contribution. Before the actual revision process started, ten guiding principles for the revision of the Code of Canon Law were approved.3 Their primary goal was to ensure that the new code would be more than a technical revision of the 1917 Code of Canon Law: the new code would first and foremost reflect the new ideas of the Second Vatican Council. Two of these guiding principles deal with the protection of the rights of the faithful and are thus important for the purposes of this contribution. One of the projected innovations of the new code was an elaborate administrative procedure, including the establishment of administrative tribunals . The initial expectations were quite high; however, the final outcome of the revision process in the area of administrative procedures and tribunals was rather disappointing for many canonists: the projected administrative tribunals were not included in the Code of Canon Law. Only two references—canon 149 § 2 and canon 1400 § 2—are the sole remaining witnesses of a proposed sophisticated system of protection of rights, combining hierarchical recourse and appeal to an administrative tribunal. We will not discuss in detail why the proposed elaborate administrative procedure was notably downsized. Pope Paul VI had the intention to promulgate ad experimentum the new law on administrative procedures, evenbeforethenewcodewouldbereadytobepromulgated.Theplanwas almost realized: the motu proprio was ready in 1973, but for two details: the signature of the Holy Father, and the date of promulgation.4 We will first look at the 1967 synod of bishops and the approval of the ten principles for the revision of the Code of Canon Law. Then we will turn to the current law on hierarchical recourse or recourse against administrative decrees (cc. 1732–1739). We will also consider the procedure before the second section of theApostolic Signatura, and especially its new lex propria. We will next consider the...

Extremism and Social Learning

When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon — group polarization — has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others in situations of (1) common sources of information; (2) highly unrepresentative group membership; (3) statements that are made to obtain approval; and (4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders — the folly of crowds. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

Reform of the Administration of Justice System at the United Nations

AbstractFor nearly six decades, the administration of justice system at the United Nations has been comprised primarily of the Joint Appeals Boards, the Joint Disciplinary Committees and the UN Administrative Tribunal. In July 2009, these bodies will be dismantled and replaced with an entirely new system. This article will first describe the basic features of the administration of justice system at the United Nations that existed prior to July 2009. It will then review the history of efforts to reform the system, leading up to the proposals of the Redesign Panel issued in August 2006. It will also look at similar initiatives implemented by other intergovernmental organizations to reform their own internal justice systems in recent years. Finally, the article will highlight the main elements of the new administration of justice system, as approved by the General Assembly in 2007-2008, and examine its implications for UN staff members in the future.

Good Administration: Why We Need It More Than Ever

This article relates the concept of ‘good administration’ to a range of key constitutional issues, including The Governance of Britain, the debate about a British Bill of Rights, the creation of the Administrative Justice and Tribunals Council, and the Law Commission's consultation on public law remedy. It argues that ‘good administration’, far from being remote from these issues, is a critical component of much that we value most in public life. By drawing upon, for example, the Parliamentary Ombudsman's publication of Principles of Good Administration and the Court of Appeal judgment in a case concerning the Ombudsman's report on occupational pensions, the article suggests that the principles of deliberative democracy, human rights and restorative justice combine to make the Parliamentary Ombudsman an effective instrument for ‘humanising the bureaucracy’, as first envisaged when the Office was created by the Wilson government in 1967.

Problems of International Administrative Law: On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal

Problems of International Administrative Law: On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal

The International Symposium “From Anatomic Collections to Objects of Worship: Conservation and Exhibition of Human Remains in Museums,” Paris (France), February 22–23, 2008

The Musée du Quay Branly held an international symposium, “From Anatomic Collections to Objects of Worship: Conservation and Exhibition of Human Remains in Museums,” in Paris on February 22–23, 2008, at the museum's Théatre Claude Levy Strauss. The main purpose of the 2-day conference—opened by the French Ministry of Culture and Communication's Christine Albanel—was to stimulate an international debate on a multidisciplinary basis concerning the roles and responsibilities of museums in the exhibition and repatriation of human remains. The subject turned out to be topical, originating from the case of thetoi moko, the Maori tattooed head belonging to the collection of the Natural History Museum in Rouen, France, since 1875. The restitution of thetoi mokoto the Papa Museum in Wellington, New Zealand, deliberated by the city of Rouen, was recently banned by the Administrative Tribunal of Rouen, on request of the Ministry of Culture at the end of 2007. The head actually belonged to a municipal museum, which was in fact part of the Musées de France, and therefore it was considered part of a public collection. Accordingly, the 2002 French statute providing for the inalienability of state properties was applicable.

Public Justice Private Dispute Resolution and Democracy

This paper is about the widespread and systematic privatization of the public civil justice system. In particular, it: (1) documents the move to privatize civil disputes across all aspects of the justice system (including courts, administrative tribunals and state-sanctioned arbitration regimes); (2) looks at some of the benefits and drawbacks of privatization, specifically including negative impacts on systems of democratic governance; and (3) identifies justice - rather than efficiency - as the primary benchmark by which civil justice reform initiatives should be judged.

The Future in International Perspective: The Ombudsman as Agent of Rights, Justice and Democracy

IN the first of this series of four articles (Vol. 61 No. 1, 2008, 206–215) I referred to the ‘venerable and international pedigree’ of the Ombudsman institution and to its origin in Sweden in the first decade of the nineteenth century. I want in this final article to return to that international scene, to set the main themes of previous articles in that wider context and to use that international dimension as a pointer towards possibilities and limitations domestically in the UK. To begin, let me recount the main themes that have emerged so far. I have tried to suggest that the role of Ombudsman is of constitutional importance in the UK and that due recognition of that constitutional role is especially salient at a time when the Government, through its The Governance of Britain White Paper, its draft Constitutional Renewal Bill and its proposed Bill of Rights and Responsibilities, is inviting fresh reflection on our constitutional arrangements. The creation of the new Equality and Human Rights Commission and of the integrated Administrative Justice and Tribunals Council are other relevant local developments; the Court of Appeal decision in respect of my occupational pensions report, the Law Commission's consultation on public law remedies and the publication of the draft NHS Constitution add further spice to the mix.

Catch the Fire Ministries V Islamic Council of Victoria: Religious Vilification Laws in the Victorian Court of Appeal

This paper explores how religious vilification laws were applied by the Victorian Civil & Administrative Tribunal in Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159, and how the appeal was argued before the Victorian Court of Appeal. First, it will be argued that the decision was flawed in important respects and some suggestions will be made about how the laws might be interpreted, stated and applied more appropriately. Secondly, in spite of the flaws, the decision provides an important point of reflection for evaluating the ways that religious speech might (and might not) and should (and should not) be regulated. The significance and nature of faith in the lives of individuals and their communities will be central to those reflections.

Consumer Experience on Complaints Handling and Dispute Resolution - A Research Study Undertaken in Victoria, Australia

The Dispute Resolution for Credit Consumers Research Project analyses and assesses the effectiveness, accessibility and the procedural fairness of the dispute resolution processes offered in Victoria Australia through the Victorian Civil and Administrative Tribunal (VCAT) and Consumer Affairs Victoria (CAV) that are directed at the needs of credit consumers. The project was undertaken to assist policy makers, the Department of Justice CAV, VCAT and credit consumers in making decisions concerning future processes and to ensure that those processes function as effectively as possible. The Report provides information about how dispute resolution processes function and meet the needs of this particular group of consumers.

The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals

International organizations regularly enjoy immunity from suit in employment-related cases. Instead of litigation before various national courts, staff members are supposed to bring their complaints before internal grievance mechanisms and ultimately before administrative tribunals set up by the organizations. The scope of jurisdiction of such administrative tribunals largely covers the kind of staff disputes insulated from national court scrutiny as a result of the immunity from legal process enjoyed by international organizations. Inspired by the case law of the European Court of Human Rights, in particular its 1999 Waite and Kennedy judgment according to which the jurisdictional immunity of international organizations may depend upon the availability of “reasonable alternative means” to protect effectively the rights of staff members, more and more national courts are equally looking at the availability and adequacy of alternative dispute settlement mechanisms. Some of them have even concluded that the non-availability of legal protection through an administrative tribunal or the inadequacy of the level of protection afforded by internal mechanisms justifies a withdrawal of immunity in order to avoid a denial of justice contrary to human rights demands.

Administrative Tribunal of Rouen, Decision No. 702737, December 27, 2007 (Maori Head case)

In October 2007, the mayor of the French city of Rouen agreed to return to New Zealand a preserved tattooed head of a Maori warrior (called toi moko by Maori) from that city's Museum of Natural History, whose collection the head had been part of since 1875. The decision to return the head was based on an initiative by the Museum of New Zealand (Te Papa Tongarewa), which has successfully secured the return of other such heads from museums in various European countries and the United States. Before the Rouen head could be handed over, however, the French Ministry of Culture intervened, arguing that its return was unauthorized under French law as being part of a French museum collection and thus inalienable.

Critical Spaces in the Canadian Refugee Determination System: 1989-2002

This paper draws its conclusions from a multidisciplinary study of the refugee determination process in Canada, the aim of which was to examine the strengths and weaknesses of the system and to explore means of improving it through an in-depth analysis of the diversity of attitudes and perceptions of different actors involved in the process. The basic hypothesis is that the legitimacy of the action of the Immigration and Refugee Board (hereafter IRB) is challenged because of a series of disagreements on the way it operates. Using interviews with former Board members, as well as with other professional actors of the system (lawyers, NGO workers, interpreters, health professionals), we try to understand better the parameters of the problems facing the IRB on three sets of issues: the appointment and renewal of Board members; the relationships between Board members within the IRB; the evaluation of the evidence by Board members. All issues relate mainly to the principles of independence and impartiality of the IRB, as an expert administrative tribunal. In particular, using the idea of ‘critical space’ as a conceptual framework, this study tries to ascertain more precisely how critical spaces within the IRB were being used in order to foster a common culture of independence and impartiality within the institution, or not. This study covers the period 1989-2002: it signals reforms accomplished since and suggests more means for improvement.

The Law that Never Was: The Motu Proprio Administrativae Potestatis on Administrative Procedures

THE LAW THAT NEVER WAS: THE MOTU PROPRIO ADMINISTRATIVAE POTESTATIS ON ADMINISTRATIVE PROCEDURES Kurt Martens* Introduction The Second Vatican Council was important not only for the life of the Church, it was also important for the renewal of the legal system of the Church. When Blessed Pope John XXIII announced on January 25, 1958 that he would convoke an ecumenical council, he also announced two other events: (1) a synod for the diocese of Rome, and (2) the revision of the1917CodeofCanonLaw.1 Forabout25years,thisrevisionoftheCode of Canon Law would, in one way or another dominate the discussions amongcanonlawyersandeventheologians.Thepromulgationofthe1983 Code of Canon Law would mark the end of this revision process and the beginning of a new era: the application of the revised law of the Church. Before the actual revision process started, ten guiding principles for the revision of the Code of Canon Law were drafted and approved.2 Although these guiding principles were not without importance, their primary goal was to ensure that the new Code of Canon Law would be more than a technical revision of the 1917 Code of Canon Law: the new code would also and foremost reflect the new ideas and insights of the Second Vatican Council. Two of these guiding principles deal with the protection of the rights of the faithful and are thus important for the purposes of this contribution. One of the projected innovations of the new code was an elaborate administrative procedure, including the establishment of administrative triThe Jurist 68 (2008) 178–222 178 * School of Canon Law, Catholic University of America 1 John XXIII, Sollemnis Allocutio ad Em̃os Patres Cardinales in Urbe praesentes habita, die XXV ianuarii anno MCMLIX, in coenobio Monachorum Benedictinorum ad s. Pauli extra Moenia, post Missarum sollemnia, quibus Beatissimus Pater in Patriarchali Basilica Ostiensi interfuerat, AAS 51 (1959) 65–69, esp. 68: “Pronunciamo innanzi a voi, certo tremando un poco di commozione, ma insieme con umile risolutezza di proposito, il nome e la proposta della duplice celebrazione: di un Sinodo Diocesano per l’Urbe, e di un Concilio Ecumenico per la Chiesa Universale. . . . Esse condurranno felicemente all’auspicato e atteso aggiornamento del Codice di Diritto Canonico, . . .”. 2 Pontificia Commissio Codici Iuris Canonici Recognoscendo, Principia quae Codicis Iuris Canonici recognitionem dirigant a Pontificia Commissione proposita et primi generalis coetus «Synodi Episcoporum» examini subiecta (Rome: Typis Polyglottis Vaticanis , 1967). bunals. The initial expectations were rather high; however, the final outcome of the revision process in the area of administrative procedures and tribunals was for many canonists rather disappointing. The projected administrative tribunals were not even included in the Code of Canon Law: only two references—canon 149 § 2 and canon 1400 § 2—are the sole remaining witnesses of a proposed sophisticated system of protection of rights, combining hierarchical recourse and appeal to an administrative tribunal. We will not discuss in detail why the elaborate administrative procedure was notably downsized. In this contribution, we will focus on one element that is not well known: the proposed motu proprio Administrativae potestatis. Pope Paul VI had the intention to promulgate ad experimentum the new law on administrative procedures, even before the new code would be ready to be promulgated. The plan was almost realized . The motu proprio was ready in 1973, but for two details: the signature of the Holy Father, and the date of promulgation. We will first look at the 1967 synod of bishops and the approval of the tenprinciplesfortherevisionoftheCodeofCanonLaw.Thenwewillturn to the preparation for the first public draft of the administrative procedure, the 1972 schema, before we concentrate on the motu proprio and subsequent further developments. This contribution as such is historical in nature , since it gives a comprehensive overview of the genesis of the administrative procedure, and is therefore a fitting tribute to John E. Lynch, C.S.P., whose scholarly work mainly focused on history and canon law. i. the 1967 synod of bishops and the principles for the revision of the 1917 code of canon law As we mentioned already in the introduction to this article, before the process of revision of the 1917 code started, ten guiding principles were presented to the 1967 synod of bishops.3 Those principles would serve as the...

La réforme de l’administration de la justice aux Nations Unies

The reform of the United Nation’s system of administration of justice initiated by the works of the Redesign Panel and the Secretary-General’s reflections has resulted in a complete overhaul of the existing mechanisms. The informal system is consolidated by the strengthening of the functions conferred on the Office of the Ombudsman, particularly with respect to mediation. As for the formal system, it is now characterized by a two-tier arrangement where the new Appeals Tribunal is destined to exercise, with certain increased powers, the functions hitherto conferred on the United Nations’ Administrative Tribunal. Important questions, particularly about the scope of jurisdiction ratione personae of the system, remain unanswered with the result that the true magnitude of the reform remains uncertain as yet.

Extremism and Social Learning

When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon — group polarization — has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others in situations of (1) common sources of information; (2) highly unrepresentative group membership; (3) statements that are made to obtain approval; and (4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders — the folly of crowds. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

Cissé v. International Bank for Reconstruction and Development

117 International organizations — International administrative tribunals — World Bank Administrative Tribunal — Investigation — Misconduct — Due process — Anonymous accusations — Public activities and interests — Conflict of interest — National legislation as source of law — Bank practice as source of law — Waiver of right to invoke Tribunal’s jurisdiction