Foreign Judges Research Articles

Anna Dziedzic, Foreign Judges in the Pacific (Hart, Oxford 2021)

Anna Dziedzic, Foreign Judges in the Pacific (Hart, Oxford 2021)

The Facade of Justice: Transitionless Transitional Justice of Ethiopia

The Ethiopian government has committed to a transitional justice process to address gross human rights violations through investigation, prosecution, truth-finding and revelation, reconciliation, conditional amnesty, reparation, and institutional reforms. Despite these efforts and international support, this mechanism will unlikely resolve Ethiopia's political and security issues. The government's lack of intent to cease ongoing conflicts and its continued human rights violations hinder effective participation in implementing the transitional justice process. Furthermore, the involvement of non-state and foreign actors, which are beyond the state’s authority, in gross human rights violations undermines accountability. Victims and witnesses in conflict zones face significant barriers to participation due to the government's limited reach and fear of retribution. Gross human rights violations by the government and the Ethiopian National Defense Force raise doubts about the accountability of civil and military leaders through a government-controlled transitional justice mechanism. To address these challenges, the current government should relinquish power to a transitional government to mitigate undue influence on the justice process, cease hostilities, and hold officials accountable. If the government resists establishing a transitional government, a hybrid court with foreign judges and prosecutors should handle high-profile cases, while domestic courts, with strict measures to ensure impartiality and independence, should address other cases.

Judging foreign startups

AbstractResearch SummaryCan accelerators pick the most promising startup ideas no matter their provenance? Using unique data from a global accelerator where judges are randomly assigned to evaluate startups headquartered across the globe, we show that judges are less likely to recommend startups headquartered outside their home region by 4 percentage points. Back‐of‐the‐envelope calculations suggest this discount leads judges to pass over 1 in 20 promising startups. Despite this systematic discount, we find that—in contrast to many past studies—judges can discern startup quality and are no better at evaluating local firms. These differences emerge because the pool of startups accelerator judges evaluate is both broader and less “local,” suggesting that judging ability depends on the composition of the companies they are tasked with evaluating.Managerial SummaryAccelerators often seek the most promising startup ideas. Yet, they can only do so if their judges can discern the quality of startups, both local and foreign to them, without systematic bias. We used unique data from a global accelerator where judges are assigned to evaluate startups headquartered across the globe and find that, while judges can detect the quality of both local and foreign startups, they discount startups foreign to them, hindering their ability to accept the best startup ideas. As venture capitalists increasingly source startups from accelerators, this foreign discounting can result in investors passing over promising ideas. However, simple measures like reducing the threshold for startups evaluated by foreign judges may help reduce judges' foreign discounting and enable picking the best companies.

Bosna i Hercegovina između međunarodnih intervencija i raspada

The state building process of Bosnia and Herzegovina beyond the provisions of the Dayton Peace Agreement has been implemented by the West for twenty-eight years through different forms. The goals which they failed to achieve in Dayton, they have tried to achieve by force, punishments, over-voting by foreign judges, impositions by high representatives, and by transferring the competences from the entities to a state level and suspending democracy. Their goal was to dismantle the Dayton Agreement and strengthen the state level government at the cost of the entity's autonomy, but instead of unitarization, they turned B&H into a weak protectorate. Today, Bosnia and Herzegovina has a huge discrepancy between the Dayton constitutional system and the situation on the ground caused by decades of various foreign interventions in its political and legal system. The lack of potential solutions for getting out of the objectively dysfunctional state further strengthened the impression that B&H is moving in the direction of dissolution. The main focus of this paper is the claim that the interventions undertaken by one part of the international community in B&H have increased the potential of the dissolution of Bosnia and Herzegovina.

Review, Anna Dziedzik Foreign Judges in the Pacific (2021)

Review, Anna Dziedzik Foreign Judges in the Pacific (2021)

Traveling Judges

AbstractAround the world, domestic courts focused on commercial disputes hire foreign judges. The practice seems to resemble arbitration, but is also rooted in colonialism. These traveling judges are predominantly retired English judges hired by small, market-dominant jurisdictions, like Hong Kong or Dubai. The judges' identities reveal efforts to harness business preferences for English common law into domestic court systems. While judges aspire to spread the rule of law, local politics may dictate these courts' futures. This Article maps the practice of traveling judges and explores its implications.

The Portable Coup: The Jurisprudence of ‘Revolution’ in Uganda and Nigeria

In the years after independence, former British colonies in eastern and southern Africa struggled to fill the ranks of their judiciaries with African judges. Beginning in the mid-1960s, states including Uganda, Tanzania, and Botswana solved this problem by retaining judges from the Caribbean and West Africa, especially Nigeria. In this same period, a wave of coups brought many independent states under the rule of their militaries (or authoritarian civilian regimes). Foreign judges who had been appointed in the name of pan-African cooperation were tasked with interpreting the laws that soldiers imposed, and assessing the legitimacy of regimes born of coups. The decisions they rendered usually accommodated authoritarianism, but they could also be turned against it. To understand how colonial law and postcolonial solidarities shaped Africa's military dictatorships, this article focuses on one judge, Sir Egbert Udo Udoma of Nigeria, who served as Uganda's first African chief justice and was an influential member of the Nigerian Supreme Court. Udoma and other judges like him traversed the continent in the name of African cooperation, making a new body of jurisprudence as they did so. Their rulings were portable, and they came to underpin military rule in many states, both in Africa and in the wider Commonwealth.

Foreign judges of the Pacific as agents of global constitutionalism

AbstractStudies 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.

Transnational judicial dialogue in the rise of China: how the Chinese judiciary enhances the Belt and Road Initiative

ABSTRACT Transnational judicial dialogue, initially treated by Anne-Marie Slaughter as a separate theoretical issue, refers to an inter-state engagement that is of growing importance in globalization. Given that China’s longstanding judicial philosophy is highly attentive to the national development strategy, the judiciary immediately devoted itself to enhancing the Belt and Road Initiative (BRI) – China’s new strategy for engaging with globalization and pursuing its ambition of rising as a leading world power. Transnational judicial dialogue may help improve understanding of the delivery of justice in China and exhibit Chinese ‘judicial wisdom’ to other BRI countries, thereby increasing confidence in the Chinese judiciary while enhancing judicial cooperation between China and other BRI countries. Dialogue may also help other BRI countries better understand China’s national development and foreign policies. Chinese transnational judicial dialogue has its own characteristics, especially in relation to face-to-face programme ‘training’ or yanxiu, provided for foreign judges. This article surveys the diversity and significance of transnational judicial dialogue in a globalized context. In particular, it demonstrates that an assertedly non-liberal state can also become a major player in transnational judicial dialogue and benefit other states, at least in some aspects. Chinese transnational judicial dialogue sheds light on the strengths and weaknesses of Slaughter’s theory.

Foreign Judges and Communal Authorities in the Legislative and Legal Space of Florence in the Second Half of the 14th Century

The article attempts to consider the actions of two communal systems of power — foreign officials: the Podestà, the Captain of the People and the Executor of the Institutions of Justice, as well as communal structures formed in 1293 — the Signoria as part of the Priory, headed by the Honfalonier of Justice and the colleges of 12 good husbands and 16 gonfaloniers of companies, in a difficult period of changing political regimes in the second half of the 14th century. The main problem of the research is the practice of the application of law and power in the context of a relatively wide communal democracy, multi-power and frequent turnover of the Signoria (every 2 months). Before each composition of the Signoria, there was a temptation at critical moments not to apply legal norms, especially in the sphere of punitive jurisdiction, and not to use powers of authority to punish and suppress their fellow citizens. In this regard, the members of the Signoria especially needed foreign officials, whose importance increase d in crisis situations, which gave rise to dictatorial inclinations and abuse of power by the Podestà and the Captains of the People

Независимость – элемент легитимности французского административного судьи

The article describes issues related to the independence of administrative judges in France. The merits of French administrative judges are constantly being discussed. Since the establishment of the Council of State, administrative jurisdiction has not only received the respect it deserves but has also been subject to criticism for its legitimacy. Consideration of the position of a French administrative judge refers to the jurisdictional dualism that is characteristic of France. The Administrative Court regularly makes strong arguments in its favor; it has the legally enshrined right to exist and objective grounds for this. It serves the idea of justice and equality, carries out tasks that no one else can fulfill through addressing three different audiences: the administration and the outside political power, of which it is a branch, the applicant, and the court of general jurisdiction. At the same time, it is necessary to pay attention to the problems of a European judge who can change the legal identity of a state. Some foreign judges dare to question the legitimacy of European case law and thus defend their own legitimacy, but in France, this approach is unlikely to be observed. The author believes that administrative judges should accept the classic challenge of a relationship with the national authorities and rethink its legitimacy concerning the supranational judiciary.

Foreign Judges and Hong Kong’s New National Security Law

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.

Foreign Judges: Pacific Practice and Global Insights

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.

British Judges in the Supreme Court of Thailand

In 1855 Siam signed the Bowring Treaty with Britain, the first of 15 unequal trade treaties with nations around the world. The treaties introduced to Siam extraterritoriality, or consular jurisdiction over foreign subjects in exclusion of Thai authorities’ jurisdiction, using specially established consular or international courts staffed by foreign judges. As well documented and discussed elsewhere, this extraterritoriality led to the pressure for the country to modernise its legal system and introduce legal codes modelled on codes in civil law countries such as France, Germany and Japan. Much less examined is the latent influence of common law during this important juncture of the country’s legal history. This chapter looks at some of the leading British lawyers in Siam who, following the abolition of the international court, sat in the Supreme Court of Siam, or Dika Court, as members of the ‘Committee of the Supreme Court’ equivalent to modern day judges. The chapter examines their legal backgrounds, their legal careers in Siam, and their role as Supreme Court judges. Our inquiry into their decisions reveals a fascinating dynamic of common law legal reasoning and principles in a civil law, code-based jurisdiction. This investigation into the role of these British judges during the formative years of Siam’s newly established legal system, often understated and unexplored in academic literature, is crucial for a more complete understanding of the country’s process of modernisation.

The Telos Reconciliation Dossier (IG XII.4.132): Democracy, Demagogues and Stasis in an Early Hellenistic Polis

AbstractThis article examines the remarkable inscribed monument IG XII.4.132, a dossier of documents dealing with political strife and reconciliation in the small island polis of Telos, as an important new piece of evidence for democracy in the early Hellenistic period. Placing the monument in its historical, geographical and political context, I argue that the background to the strife was most likely the activity of ‘demagogues’ in the courts of democratic Telos. Furthermore, we should view the terms of the reconciliation against the backdrop of issues of community service, publicity and memorialization, all contested political topics in the late Classical and early Hellenistic periods. The dossier shows that the kinds of ‘high politics’ and stasis that affected major poleis could be found also in the small cities of the Greek world, with important local variations. The document sits at a historical crossroads in terms both of judicial practices (including the use of foreign judges) and of constitutional forms (democracy and oligarchy).

International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia

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.

Meditations in an Emergency: The Appellate Body Deadlock – What It Is, Why It Is a Problem, and What to Do About It

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.

Does being a foreigner shape judicial behaviour? Evidence from the Constitutional Court of Andorra, 1993–2016

AbstractDifferent personal attributes have been considered to account for judicial policy preferences around the world: ideology, age, gender, race, religion, language and professional background. The appointment of foreign judges is a particularly rare characteristic since most countries do not entertain such a possibility. We use the specific case of the Constitutional Court of Andorra to test the extent to which foreign-appointed judges make a difference, and particularly whether they are more or less inclined to favour local petitioners. An empirical analysis of the entire population of abstract review cases in the period 1993–2016 does not indicate a strong statistical effect.

The Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia

The bulk of international commercial disputes are resolved by national courts. In Asia, regional international arbitration centres in places such as Shanghai, Hong Kong, Singapore, and Tokyo have also been partaking in these exercises albeit at varying levels of popularity. While commercial arbitrations remain pop­ular, the influence of these bodies in driving convergence has been questioned. This has been in part due to the confidential nature of their awards and their ad hoc nature. The uptake of international commercial instruments in the region is growing, but the extent of harmonization of international commercial law remains weak. Even in countries such as Australia that have taken steps to adopt international commercial instruments, the efficacy of international law has been called into question. Application of these international rules have not been prom­ising. In this regard, the lacklustre performance of the Convention for the Interna­tional Sale of Goods (CISG) could be cited. There is no doubt that judicial institutions play a crucial role in achieving the lofty ideal of harmonisation. At the other end of the spectrum, the establishment of fully blown regional interna­tional courts for commercial disputes is further away. This has been hampered by the obvious sovereignty concerns and the relative success of international commercial arbitration. It has been a little over a year since Singapore, a country that is already one of the most preferred arbitration destinations in the world, moved to establish an International Commercial Court, a unique institution that pushed the frontiers of cross border commercial dispute resolution. The Court heard its first case in May 2015 on a referral from the High Court. This case involved a dispute between Indonesian and Australian mining companies. The court is unique in that it allows appointment of foreign judges and dispenses with the application of Sin­gapore's Rules of Evidence. Naturally all Singapore regular courts are expected to apply the Singapore Rules of Evidence in disputes before them. However, an exception is made in regards to matters coming before the Singapore International Commercial Court (SICC), where on application of the parties the Singa­pore Rules of Evidence may be disapplied pursuant to Order 110, Rule 23.2 as will be discussed later in this essay, this hybrid institution promises to combine the best of international commercial arbitration and that of judicial settlement of disputes. Elsewhere in Asia, we have had the Dubai International Financial Cen­tre Courts of First Instance and Appeal, the Qatar International Court and Dispute Resolution Centre and, most recently, the Abu Dhabi Global Market Courts. The need for specialised commercial division has long been recognised in places like London, Delaware North, and Victoria in Australia. It is one thing to have a commercial division and yet another to make these divisions have an interna­tional orientation. This paper seeks to put these developments in comparative perspectives and examine normative, procedural, institutional issues and practical challenges that such endeavours entail. It will also assess and critically examine the legal/legis­lative infrastructure required to accommodate the establishment of hybrid judicial organs for cross border commercial disputes.

Judicial Comparativism and Judicial Diplomacy

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some constitutional courts make greater use of foreign law than others. To identify the reasons for which courts engage in comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia – the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts. Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing structural factors create the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks any institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is a supportive system of legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism. Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.