Appellate Jurisdiction Research Articles

Lessons from Australian family law appeals jurisdiction

ABSTRACT Much has been researched, written about, and subjected to public enquiry with respect to the content of Australian family law arrangements. This study adds to current understanding by the examination of the records of all successful appeals of parenting orders under the recently adopted regime of the Federal Circuit and Family Court of Australia Division 1 Appellate Jurisdiction. Drawing on transcripts from this Court to the date of writing, 35% of applications to appeal parenting orders were successful in being granted a rehearing or variation by the Appellate Jurisdiction. It is these cases which form the basis for this analysis. Employing an inductive thematic analysis, it has been possible to identify the pattern of circumstances most likely to lead to the compromise of the delivery of the declared principles of clear, predictable, and accessible law. Learning from the record of successful appeals, it becomes evident that the Appeals Court plays a relatively unappreciated critical role in identifying the context and nature of risks in the delivery of these core principles and what should be a central focus for attention.

The resolution of professional tennis disputes

Abstract The regulatory landscape of professional tennis is scattered across several entities, each administering its own tournaments. This article focuses on disputes involving professional tennis players. In this context, it identifies two major areas of disputes, namely regulatory (encompassing disciplinary, doping and corruption offences) and contractual. The latter are chiefly resolved through litigation. Regulatory disputes are administered through distinct judicial and quasi-judicial institutions set up by the various tennis entities. The International Tennis Federation’s (ITF) international adjudication panel and its independent tribunal are the key institutions in this respect, with the independent tribunal possessing all the attributes of arbitral tribunals. The Court of Arbitration for Sport (CAS) has been conferred a limited appellate jurisdiction over decisions of these two entities. Overall, the ITF’s dispute resolution architecture has been effective and has created a significant body of precedent, further supplemented by that of the CAS.

The Original and Appellate Jurisdiction of the Nigerian National Industrial Court in Labour Matters

The Original and Appellate Jurisdiction of the Nigerian National Industrial Court in Labour Matters

Deciding Matters of General Public Importance in South African Law: Guidance from the United Kingdom Supreme Court

Abstract The South African Constitutional Court is now conferred with the authority to decide matters of general public importance. Of course, the mere statement that the highest court should assume the authority to decide broad public matters does not assist litigants to fully understand which matters may be appealed to that court. Similarly, the Constitutional Court cannot accept appeals without consideration of its new appellate jurisdiction. The court should accept appeals with proper regard of its appellate jurisdiction; otherwise the extension of its jurisdiction could be rendered meaningless. The term “matters of general public importance” is rather novel in South African law; thus it is quite difficult to frame exactly what is implied by the term within the South African context. This article undertakes a comparative study to assess the term. A perusal of the jurisdiction of the United Kingdom Supreme Court may perhaps elucidate what is meant by the words “matters of general public importance”.

Rethinking the Supreme Court’s Appellate Jurisdiction on Questions Involving Interpretation or Application of the Constitution

Walter Khobe in his article, ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the ‘Interpretation and Application of the Constitution’ lauds the Supreme Court for adopting the unbound normative derivative doctrine to justify its enlarged jurisdiction under article 163(4)(a) of the Constitution, 2010 in matters arising from interpretation or application of the Constitution, including election petitions. Whereas I agree in principle that the doctrine is firmly embedded in the Constitution, I submit that invoking the doctrine as a means to exercise appellate jurisdiction specifically in election disputes is inconsistent with a holistic reading of the Constitution and election laws. Besides, the sui generis nature of election disputes and the capacity constraints of the Supreme Court, among other factors, militate against a blanket application of the doctrine in exercise of appellate jurisdiction in election petitions. In the end, I recommend that to foreground the broad transformative goals of the Constitution, the Supreme Court should decline any invitation to exercise appellate jurisdiction in election petitions, especially under article 163(4) (a).

Appellate Jurisdiction of International Court of Justice: Old Wine in New Bottle

Abstract The International Court of Justice (ICJ) is the principal judicial organ under the United Nations (UN) competent to decide cases submitted by the States. The Jurisdiction of the ICJ is derived from Article 36 of the ICJ statute; further, the ICJ is competent to render advisory opinions when requested by the organs and specialised agencies of the UN. Before proceeding to the merits of the case, the ICJ has to satisfy that it has jurisdiction to decide upon the case. Moreover, the decisions of the ICJ are binding without appeal, except in cases involving revision. This article briefly analyses the Appeal Relating to the Jurisdiction of the International Civil Aviation Organisation Council (ICAO Council) under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar).

A Synopysis of the Procedures for Civil Appeals to the Court of Appeal of Tanzania: Practical Perspectives

The court of appeal of Tanzania is established under Article 117 of the Constitution, it is the highest Court of the land in terms of hierarchy of judiciary in Tanzania. This is the court of final appeal. The law governing the procedures before the Court of Appeal is the Appellate Jurisdiction Act, and The Tanzania Court of Appeal (Amendments) Rules 2019 which came into force on 26 April 2019. This paper gives a synopsis of the procedures to be undertaken for civil appeals to the Court of appeal of Tanzania a practical perspective. It covers appeals in Land, Labour and normal civil suits. Procedures, necessary documents and timing for each step will be discussed. At the end a discussion will be triggered on challenges faced on the field (a practical perspective).

Chief Justice of India - Appointments and Disappointments that Have Weakened Judicial Independence

Judicial independence is constitutionally protected but the precept has been vitiated by instances of political overreach including attempts to have CJIs who are amenable if not pliable. Though all appointees have been eminent jurists, as administrative head of the judiciary they have disappointingly failed to keep the political executive at bay. Twin issues, judges not sitting en banc and their early retirement, provide motive and opportunity for political interference. On both counts, CJIs have done precious little, some even engaging in quid pro quo. CJIs must press for a Constitution Division to sit en banc, ensure appellate jurisdiction is not abused, retirement age of judges is raised and post-retirement engagements by the government is prohibited. Since in a populous democracy political interference is not surprising, it is for CJIs to thwart those machinations by institutionally progressing judicial reforms and individually proclaiming: I am not available.

Advisory Opinion of the Caribbean Court of Justice in Response to a Request from the Caribbean Community (Caribbean Ct. J.)

An Appellate Jurisdiction, which addresses municipal law cases on appeal from countries which accept this jurisdiction. To date, four Caribbean countries—Barbados, Guyana, Belize and Dominica—have accepted the appellate jurisdiction of the Court. The applicable law for each case under the appellate jurisdiction is the national law of the state from which the appeal emanates. The CCJ in its Appellate Jurisdiction is intended to replace the Judicial Committee of the Privy Council as the final court of appeal for Caribbean countries which were formerly British colonies.

Comparative analysis of Appellate Jurisdiction of the Supreme Court of India and Supreme Court of the United States of America

The Constitution of India, by way of Part V, Chapter IV established the Supreme Court of India, giving it original, appellate and advisory jurisdiction. Similarly, the United States Supreme Court was established by the Congress under the Judiciary Act in 1789 and has been granted original and appellate jurisdiction. That being the case, the aim of this paper is to provide a comparative analysis between the appellate jurisdiction of the Supreme Court of India and the United States of America, and thereby show that the appellate function of the Supreme Court of India has in turn decimated the power of the Supreme court to critically analyze constitutional matters. Conclusively, the paper showcases that the Supreme Court of India requires a more efficient management system for its appellate jurisdiction, much like its American Counterpart.

Geneza jurysdykcji apelacyjnej Izby Lordów nad rozstrzygnięciami sądów szkockich

W opracowaniu autor podejmuje próbę przedstawienia genezy i rozwoju jurysdykcji ape-lacyjnej wyższej izby parlamentu brytyjskiego, jaką jest Izba Lordów. Analiza koncentruje się na przedstawieniu źródeł i zakresu uprawnień sądowniczych posiadanych przez parlamenty królestw, które weszły w skład Zjednoczonego Królestwa Wielkiej Brytanii, a następnie dyskusji i rozwią-zań, które stały u podstaw regulacji relacji obu systemów prawnych w traktacie zjednoczeniowym z 1707 roku. Ostatnią częścią analizy jest przedstawienie najważniejszych aspektów sprawowania jurysdykcji apelacyjnej przez Izbę Lordów w okresie do powstania Sądu Najwyższego Zjednoczo-nego Królestwa.

Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

Arbitration. Applicability of sect.87 of Arbitration & Conciliation Act,1996-Constitutional validity of sect.87 of Arbitration & Conciliation Act,1996 as inserted by sect.13 of Arbitration & Conciliation (Amd) Act,2019-Constitutional validity of repeal of sect.26 as inserted by the Arbitration & Conciliation (Amd) Act, 2015-Challenge to various provisions of Insolvency & Bankruptcy Code,2016. India. Hon’ble Supreme Court of India –Appellate Jurisdiction– Auth:Rohinton Fali

View Arbitration. Applicability of sect.87 of Arbitration & Conciliation Act,1996-Constitutional validity of sect.87 of Arbitration & Conciliation Act,1996 as inserted by sect.13 of Arbitration & Conciliation (Amd) Act,2019-Constitutional validity of repeal of sect.26 as inserted by the Arbitration & Conciliation (Amd) Act, 2015-Challenge to various provisions of Insolvency & Bankruptcy Code,2016. India. Hon’ble Supreme Court of India –Appellate Jurisdiction– Auth:Rohinton Fali Nariman – 27.11.2019. by Nikhil Palli - Revista Brasileira de Arbitragem

Make SCOTUS Judge Again: A Proposal to Revive Mandatory Appellate Jurisdiction Over Constitutionally Significant Questions

Every term, the Supreme Court decides fewer cases. The lower overall number of decided cases has focused public attention (and opposition) more intensely around the relative handful of high-profile cases that remain, and shut state court litigants seeking review out of the Supreme Court almost entirely. Discretionary grants of certiorari have also allowed the Court to pass on resolving divergent opinions among lower federal and state courts, leading to an unfortunate reality in which federal law is applied inconsistently across the country. Furthermore, the lighter workload has made continued service on the Court manageable for Justices who in an earlier era might have already retired, reducing the number of vacancies and raising the political stakes for each new appointment. Reviving the Court’s mandatory appellate jurisdiction as it existed in the middle of the twentieth century would accomplish multiple goals at once: giving more state court litigants a shot at federal appellate review, promoting greater uniformity of federal law on important constitutional questions, and encouraging a higher rate of turnover on the Court that could potentially reduce the tension surrounding confirmations.

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.

Article 134 – Appellate Jurisdiction of Supreme Court in Regard to Criminal Matters

An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies that the case is a fit one for an appeal to the Supreme Court; Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

Judicial Activism in the World Trade Organization: A Conundrum and Selective Approach

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents.

The origins and development of the office of registrar in bankruptcy of the High Court

AbstractThis article examines the history of the office of Bankruptcy Registrar of the High Court of England and Wales. It is argued that the power of the registrars to act judicially grew from their authorisation to act pursuant to delegated powers introduced in 1869 and that this began a major shift in their role from being largely administrative to their current status as fully fledged (and renamed) insolvency and companies court judges. The fluidity of bankruptcy offices in the nineteenth century is also examined, demonstrating that certain bankruptcy officer‐holders moved freely between functions in the course of the development in the office of registrar from what might be called its administrative phase to the judicial phase with the eventual creation of a Bankruptcy Court and more recently the creation of a specialist insolvency and companies list in the new Business and Property Courts. Finally, it is argued that a factor in the foregoing developments and the increasing reputation of the bankruptcy registrars was the extension of their jurisdiction from pure bankruptcy work to include company insolvency, directors' disqualification cases and non‐insolvency company work, a significant increase in their trial work and their acquisition of an appellate jurisdiction.

Article 132 – Appellate Jurisdiction of Supreme Court in Appeals From High Courts in Certain Cases

An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, that the case involves a substantial question of law as to the interpretation of this Constitution.

Access to the Supreme Court – the English Approach

The United Kingdom Supreme Court (UKSC) is a relatively new supreme court, as it started to sit as recently as 2009. It is the statutory successor to the House of Lords’ judicial powers. The text sets out the following issues: the court’s jurisdiction, standing, permission to appeal requirements, substantive nature of appeals, tied decisions and reopening of appeals. Next, the author proceeds to examine the nature of the remedies avaible to it, and any restrictions that apply to them. The text demonstrates the UKSC’s wide-ranging appellate jurisdiction, which enables it to exercise the full range of powers of the courts from which appeals are made it. However, in the majority of cases, access to the UKSC is limited due to the Court’s focus on legal questions of general public importance. As a result of it, the UKSC deals with a small number of cases on an annual basis. Although the Court is not supposed to carry out a judicial review of legislative action, the author hints at a nascent movement towards establishing a US-style power to strike down legislation.