Independent Courts Research Articles

Regimes and the Rule of Law: Judicial Independence in Comparative Perspective

According to popular wisdom, judicial independence and the rule of law are essential features of modern democracy. Drawing on the growing comparative literature on courts, we unpack this claim by focusing on two broad questions: How does the type of political regime affect judicial independence? Are independent courts, in fact, always essential for establishing the rule of law? In highlighting the role of institutional fragmentation and public opinion, we explain why democracies are indeed more likely than dictatorships to produce both independent courts and the rule of law. Yet, by also considering the puzzle of institutional instability that marks courts in much of the developing world, we identify several reasons why democracy may not always prove sufficient for constructing either. Finally, we argue that independent courts are not always necessary for the rule of law, particularly where support for individual rights is relatively widespread.

Arbitration at the Dubai International Financial Centre: a Common Law Jurisdiction in the Middle East

The Dubai International Financial Centre (DIFC) is an autonomous jurisdiction based in the Emirate of Dubai where the civil and commercial laws of the UAE do not apply. The DIFC’s legal system is based instead on common law and is supervised by the judges of the DIFC’s own independent courts. The DIFC’s legal landscape now includes the recently enacted DIFC Arbitration Law 2008, based on the UNCITRAL Model Law on International Commercial Arbitration, which opens up the DIFC as a possible seat of arbitration to all interested parties notwithstanding the absence of any links to the DIFC. Parties looking to seat their arbitrations in the Middle East now have the option of selecting the DIFC as a neutral, English-speaking, common law jurisdiction with a modern arbitration law, backed by an experienced judiciary, located in one of the leading commercial and financial centres in the Middle East. The aim of this article is threefold: (a) to present a short introduction to the DIFC’s unique legal system in order to establish the proper context for (b) a critical examination of the new Arbitration Law, and (c) to assess the likely impact of the new Law (and the recent establishment of the DIFC-LCIA Arbitration Centre) on arbitration in the Middle East and the wider region.

The Iraqi Special Tribunal under International Humanitarian Law

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy of such a domestic forum within the context of human rights norms and the law of occupation. In particular, there was a major strand of thought from outside Iraq that the most legitimate and appropriate forum would have been an international process under the authority of the United Nations. This article examines the arguments made by the Iraqis who demanded a domestic process based on their inquisitorial model, setting them in the broader context of the emerging trends in international criminal law. Through a detailed and unique analysis of the provisions of human rights law and underlying Iraqi procedural law, it criticizes the arguments made by some that assume the illegitimacy of the tribunal under established international norms. The article provides the most detailed explanation of the law of occupation as it emerged following World War II to conclude that the establishment of the Tribunal as an independent court, and its subsequent validation by sovereign Iraqi domestic authorities, was completely valid and proper. The overarching theme of the article is that the imposition of artificial standards and the complete revocation of the preexisting Iraqi judicial structures would have created a process deemed wholly illegitimate by the Iraqi people and judiciary that would have undermined the establishment of the rule of law in Iraq. The author’s personal interactions with the judges serve to support the conclusion that the Tribunal is capable of serving as the doorway through which the detailed body of international criminal law is introduced to the broader Arabic speaking world.

Determinants of Judicial Independence: Lessons from Three ‘Cases’ of Constitutional Courts in Peru (1982–2007)

AbstractThe Peruvian Constitutional Tribunal (CT) is currently an independent institutional actor in Peru's politics. By comparing and contrasting the recent history of the CT and two previous ‘cases’ of ‘failed’ constitutional courts – the CT's role during the Fujimori regime and its predecessor, the Tribunal of Constitutional Guarantees – the article tests several theories that aim to explain the emergence of independent courts in democracies. The three cases provide evidence in support of theories that highlight the importance of political pluralism as a necessary condition for the emergence of independent courts, but the cases also show that an institutional design that ‘mirrors’ this pluralism is crucial to attain this outcome. The importance of these political and institutional factors suggests that it is too soon to be optimistic about the likelihood that the present CT can maintain its independence in the future.

Advising - and Suing - Tribal Officials: On the Scope of Tribal Official Immunity

This research paper, prepared for the 2009 Federal Bar Association Annual Indian Law Conference, offers a comprehensive overview of the law of tribal official immunity in federal courts. Federal courts apply the Ex parte Young doctrine to tribal officials. Tribal officials tend to be immune from suit in federal court unless a plaintiff alleges a violation of federal law and there is an independent federal court cause of action. Tribal officials are immune if the plaintiff alleges a violation of tribal law, or otherwise merely seek to reach the tribal coffers.

Forfeiture of Property in the Light of Amendments to the Fiscal Penal Code

The regulations concerning the fi scal penal law date back to the times of regaining independence by Poland . Nevertheless, the fi scal penal law was codifi ed as late as September 10, 1999. The Fiscal Penal Code came into force to adjust the fi scal penal provisions to the following constitutional regulations: the right to hearing (Art. 45 of the Constitution of the Republic of Poland), according to which everyone shall have a right to a fair and public hearing of their case by an impartial and independent court, the principle of court administration of justice (Art. 177 of the Constitution of the Republic of Poland), which shows that the administration of justice in all matters shall be implemented by court, and the principle contained in Art. 46 of the Constitution of the Republic of Poland which reads that the property may be forfeited only by virtue of a fi nal court judgment.

Is Internet Censorship Compatible with Democracy? Legal Restrictions of Online Speech in South Korea

This paper examines the history and causes of Internet censorship in South Korea, with special focus on the tension between South Korea's democratic political identity and its willingness to tolerate significant censorship of online political speech.Part I presents the problem of Internet censorship in new democracies, addressing particularly whether the Internet is more free from state interference than the hierarchical 20th century model of mass media. This question takes on particular importance as the Internet is becoming the dominant model of mass communication in many democracies, and as television and print journalism increasingly fuse with the Internet and lose their independent identities. Part II, the bulk of the paper, explores the background and political dynamics of censorship in South Korea. First it provides a brief overview of South Korean censorship during the country’s three cold war dictatorships. Second, it shows how South Korea’s post-1987 liberalization opened up its media sphere and political debate in crucial yet incomplete ways. In doing so it focuses on four key transformations: the emergence of a politically independent Constitutional Court with the power of judicial review, the establishment of a democratic system of elections that heavily restricts political expression, the incomplete rollback of government controls over print and broadcast media, and the gradual loosening of laws that restrict seditious and subversive speech. Third, it demonstrates how this incomplete liberalization has given the government cover to implement a shockingly restrictive Internet censorship bureaucracy, and how that censorship has continued even under presidents that were opposed to it. It chronicles how the strategies of the censorship bureaucracy have developed, and shows that recent developments under the administration of Lee Myung-bak have left free speech on the Internet particularly vulnerable.Finally, Part III uses the story in Part II to identify the underlying dynamics that have caused the paradox of South Korean Internet censorship. It then identifies several of the problems that face South Korea’s Internet censorship regime, which give some indication that it may not be effective or sustainable into the future. These defects in the long-term viability of South Korea’s Internet censorship regime provide some hope to those concerned with the project of e-democracy worldwide, especially in emerging and illiberal democracies. This paper then concludes with two strategies that Internet freedom activists can pursue to help undermine Internet censorship in South Korea.

Procedures of Decision-Making and the Role of Law in International Organizations

There is no general body of procedural law for decision-making in international organizations. At the same time, many of the more than 230 existing international organizations (IOs) exercise public power through legislative and regulatory activities involving a myriad of decisions taken within these institutions every day. These decisions shape societal perceptions of a wide range of pressing humanitarian-, ecological, technical- and scientific issues and direct actions taken in these fields. From a rule of law perspective any exercise of public power outside a limiting framework of public law is reason for concern. According to the domestic rule of law traditions, public law is supposed to prescribe the form in which public power is exercised. It regulates the process of decision-making by establishing binding procedures, including procedural rights of participants and affected individuals. In case of unlawful exercise of power by public officials affected persons and entities have legal recourse to an independent court or tribunal. If formalized procedural constraints for the exercise of public authority are important at the national level they are all the more so at the international level since conflicts over substantive legal standards and disagreement over community values are usually more acute.

Judicial Independence in China: Common Myths and Unfounded Assumptions

The Chinese judiciary is regularly criticized for lack of independence. The lack of genuine progress in establishing an independent judiciary is then cited as evidence that China's reform process is trapped in transition. In response, international donor agencies and bilateral legal cooperation programs have encouraged China to adopt institutions and practices found in advanced Western states known for rule of law. Surrounding these views is a set of common myths and unfounded assumptions. The first assumption is substantive: concept of judicial independence is clear, and there is a single agreed upon model or a generally accepted set of institutions and best practices articulated with sufficient specificity to guide reformers. The second assumption is methodological: there are clear standards for measuring judicial independence. The third assumption is normative: we know how independent courts should be (at each stage of development). The fourth assumption is more independence better. The fifth assumption is that lack of judicial independence is a serious problem in all types of cases in China. The sixth is that China's courts lack independence because independence is impossible within a single party state. The seventh, and a corollary, is that the Party is main source of interference with courts. The eighth is that were China to suddenly democratize, judicial independence would no longer be a problem. This article advances three main theses. First, each of these eight assumptions is either wrong or needs to be qualified. Second, general statements about lack of judicial independence or impossibility of achieving judicial independence in a single party state fail to capture complex reality of China or many other authoritarian regimes. Third, legal reforms that assign a high priority to judicial independence will be unsuccessful or limited in their effectiveness until there is a deeper understanding of these issues as they apply to China and to developing countries more generally. Part I distinguishes between various aspects or subcomponents of judicial independence. Part II then takes each of subcomponents of judicial independence in turn, reserving a discussion of main external constraints on judicial independence for Part III. Part IV discusses implications of China's efforts to increase judicial independence for law and development movement, including observations about methodology and relationship between regime type and judicial independence. Part V concludes with some recommendations on how to address related problems of judicial corruption and judicial independence.

Fair & independent courts

Fair & independent courts

Transnational Activism in World Politics and Effectiveness of a Loosely Organised Principled Global Network: The Case of the NGO Coalition for an International Criminal Court

The article discusses the role of the NGO Coalition for an ICC, a loosely organized principled network established to promote a fair, independent and strong permanent international criminal court, in the creation of the world's first permanent judicial institution vested with the authority to deal with the worst crimes. The study further identifies the basic features of the Coalition and assesses its impact on world politics and its implications for global governance.

Appointing Federal Judges: Law, Politics, and DemocracyMichael Comiskey.Seeking Justices: The Judging of Supreme Court Nominees. Lawrence: University Press of Kansas, 2004.Richard DavisElecting Justice: Fixing the Supreme Court Nomination Process. New York: Oxford University Press, 2005.Lee Epstein and Jeffrey A. Segal.Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press, 2005.Benjamin WittesConfirmation Wars: Preserving Independent Courts in Angry

Michael Comiskey Seeking Justices: The Judging of Supreme Court Nominees. Lawrence: University Press of Kansas, 2004. Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process. New York: Oxford University Press, 2005. Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press, 2005. Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times. Lanham, MD: Rowman & Littlefield, 2006.

Africa's "constitutionalism revival": False start or new dawn?

Several African states have implemented democratic and liberal constitutional reforms during the last two decades. Regime change, the ending of decades of autocratic rule, and the emergence of independent courts are among the important changes produced by these reforms. Yet Africa's “constitutional moment” has not received the scholarly attention it deserves. With the notable exception of South Africa, African nations continue to lie largely outside the mainstream of contemporary comparative constitutional discourse. This article traces the origins, and examines the scope, content and shortcomings, of the recent “constitutionalism revival” in Africa. Against the backdrop of the continent's postcolonial history of “constitutions without constitutionalism,” the article identifies important transformative currents in contemporary Africa that suggest the dawn of a new era; nonetheless, it notes how the persistence of certain constitutive and regressive elements of the ancien régime continues to define and bedevil African constitutional politics.

Disclosure and sharing of sensitive information

PurposePresentation on legal risks in business cooperation in a regulated sector in Canada.Design/methodology/approachThe paper reviews Canadian case law and privacy implications for businesses cooperating with regulators and the risk of such cooperation to the regulated scheme.FindingsThe public interest in fostering regulator to law enforcement cooperation creates a potential risk to the regulator's scheme whenever the cooperation creates a risk that the regulator is a mere alter ego to criminal law enforcement.Practical implicationsCase law in Canada considers the scope of regulator compliance functions and the impact of sharing information with criminal investigators. Too much sharing, without concern for the regulated environment may risk regulator's authority to obtain business information absent a pre‐existing independent court authorization.Originality/valueThe paper is valuable to any regulator in a common law jurisdiction.

African judges, in their own cause: Reconstituting independent courts in contemporary Africa

The global spread of constitutionalism and judicial review, during the last two decades, has generated vigorous scholarly interest and activity in the comparative study of courts and judicial behavior in transitional democracies. On the vast continent of Africa, South Africa’s postapartheid Constitutional Court, known for its innovative jurisprudence in the area of rights, has emerged as the undisputed favorite of comparative constitutional scholars and social scientists as well as a lodestar for jurists across

Legal Infrastructure, Judicial Independence, and Economic Development

Economic theory generally supports the idea that judicial independence, and, more generally, high quality courts, facilitate economic growth. Good, independent courts enforce contracts and protect property, and by doing so encourage the investment which is crucial for economic development. Nevertheless, judicial independence and good courts are not necessary to investment, because there are other mechanisms which can enforce contracts and protect property, albeit perhaps not as well as courts. Contracts can be enforced by reputation, without recourse to the courts. Similarly, the government can protect property through executive restraint and policing, even if constitutional protections are weak and private litigation is ineffective. Thus, economic growth often starts without strong courts, and efforts to improve the quality of the judiciary are often the consequence, not the cause, of economic development.The empirical literature, to the extent that it has investigated the relationship between courts and economic growth, has focused on judicial independence. Judicial independence is, of course, only one aspect of quality courts. Nevertheless, it is relatively easy to measure and probably correlated with other indices of court quality. It thus serves as a rough proxy for the quality of legal infrastructure. There is some evidence that judicial independence is associated with economic growth, but the evidence is mixed and causation is unclear.

Regulatory Features and Administrative Law Dimensions of the Olympic Movement's Anti-doping Regime

This paper examines, from a global administrative law standpoint, the crafting and administration of the anti-doping regime by the non-governmental international sports governing bodies, grouped in the Olympic Movement. It explores the inroads made by public actors (governments and courts) in the Olympic Movement's self-constructed monopoly on norms for the international sports community. Courts are playing an important role on the margin: while they rightly defer on substantive issues to the expertise and shared understanding of the sport governing bodies ('lex sportiva'), they are willing to interfere when the latter's decisions run counter to fundamental human rights and classic administrative law protections of due process. This has pressed private bodies such as the Olympic Movement to introduce new governance structures (especially the independent Court of Arbitration for Sport), mirroring those found in more strictly public international administration. There has also been a remarkable outreach to national governments, leading to hybrid public-private bodies such as the World Anti-Doping Agency. This interaction appears to be yielding satisfactory results so far.

Ukraine Economy and Finance in the Reform Process and the European Partnership: A Focus on Aerospace Industry

In spite of economic stabilization and the growth rate uprise since 2003, Ukraine has received less than EUR 5 billion in foreign direct investment over the last five years (from 2000 to 2004). This is less than other less FDI-attractive countries got, notwithstanding the fact that Ukraine has a steel industry of international significance, great agriculture potential, and an automotive industry which accounts for almost 6% of the value added generated by the industrial sector. The new government of Ukraine has declared the foreign investment flows into Ukraine among its top priorities. Unfair competition as a result of past bad government policies was the reason for the low FDI inflow. The former Ukrainian government promoted private interests of a limited group of businessmen. Unfair privatization sales with a limited access of other investors, as well as violent ownership takeovers, took place. The new government has committed to stop this practice. The role of independent courts will grow in dealing with conflicts, including the revision of unfair privatization sales. The determination to be integrated with the EU represents an ultimate goal. Such a step is expected to facilitate Ukraine's movement towards European standards in all spheres. I also present a brief inside evaluation on the aerospace industry, for both the civil and military sectors, starting from a sketch of the defense industry in 2000. The situation of civil and military aviation in Russia and Ukraine has many points in common and it could not be different after such a prolonged common history in the same military-industrial complex. Ukrainian industrial capacity is more or less completely secluded from international partners and markets. EU and NATO should not miss the opportunity to take into account the human capital and the technology achievement already accumulated by Ukrainian industries, research centres, academies, laboratories. The Ukraine aviation industry has suffered a serious decline over the last 15 years. Only recently new programs and major developments in the sector, which is undergoing a major restructuring, have reopened the perspectives of new projects in both civil and military aviation, as well as in space projects. The components sectors will be affected positively if the developments will be confirmed by concrete international partnerships and investments, first of all with the EU and the United States. Mergers and restructuring of the existent production plants are a real need. As experience shows in Europe and in the global market, no national way or revival of past alliances could help Ukraine to maintain a role in the aerospace sector.

Threats of Judicial Counterreform in Putin's Russia

In late September 2004, the Federation Council approved a draft law sponsored by its speaker, Sergei Mironov (allegedly written in the state legal administration of the president, which would change the composition and method of choosing members of the Judicial Qualification Collegia, the only bodies that can discipline or fire a judge for cause. As a result, would no longer constitute a majority, and even lhe judicial members would be confirmed by lhc Federation Council itself. is a big stupidity, said Yuri Sidorenko, head of the Council of Judges of the Russian Federation on the pages of a national newspaper, but unfortunately in the spirit of the times. It is clear that these actions are meant to limit the independence of courts and judges (Kornia and Romanicheva 2004; Proekt 2004).This initiative constitutes an example of the threat of judicial counterreform. It is just one of a number of such initiatives that appeared in public discourse in the Putin years.To understand and assess these threats requires remembering that Vladimir Putin's presidency has done much to improve the courts and advance judicial reform in Russia. Among other things it has (1) promoted hierarchy of laws and sought to reduce inconsistencies in the laws of different governments; (2) achieved the adoption and initial implementation of new procedural codes (criminal, civil and arbitrazh) that include many positive features; and (3) dramatically increased funding of the courts (a process that is continuing) to cover such initiatives as raising the salaries of (while reducing their perks); expanding the court system through the new justices of the peace, thereby reducing caseload for many judges; introducing jury trials throughout the Russian Federation; adding significantly to the staff of courts (especially clerks); repairing court buildings; and moving toward full computerization of the courts (Solomon 2003a, 2004a). All this came on top of the Yeltsin era achievements of security of tenure for (at least in theory), judicial self-government, and the successful empowerment of courts in the areas of constitutional and administrative justice (Trochev 2005; Solomon 2004a).Without progress in judicial reform one could not logically speak of counterreform (movement in an opposite direction), and unless the courts actually resolved some important issues impartially, people would not be tempted to seek leverage over them, lpso facto, the mounting of counterreform initiatives implies that reforms are making a difference, at least in the minds of some beholders.Moreover, successful judicial reform in postcommunist states is bound to be marked by zigs and zags, including initiatives that might be seen as steps backward. Even in countries not undergoing transitions, calls to restrict judicial power or to enhance the accountability of to the point of control are common, especially from losers in the courts. But it is important to recognize counterreform proposals for what they are and understand their dynamics and implications.As it happens, the term judicial counterreform was first used by Soviet scholars in the 1960s to describe developments in Tsarist Russia, where the Judicial Reform of 1864, designed to develop independent courts within an autocracy, produced courts that sometimes acted against the interests of the Tsar. From this tension came proposals in the 187Os, 188Os, and 189Os that threatened to undermine judicial independence (Vilensky 1969; Nemytina 1999).This article begins with discussion of the concept of judicial counterreform and its utility as an analytical tool, using events and proposals from late Tsarist Russia as an example. The core of the article explores a series of proposals and initiatives of the years 2001 to 2005, all of which may be understood as threats to judicial power or independence. These include the Mironov proposals and other suggestions relating to judicial self government and financing; an attempt to end life appointments for judges; a challenge to the power of the Constitutional Court to render laws invalid and order their rewriting; the plan to move the top courts from Moscow to St. …

The rule of law in nascent democracies: judicial politics in Argentina

This book explains how the rule of law emerges and how it survives in nascent democracies. The question of how nascent democracies construct and fortify the rule of law is fundamentally about power. By focusing on judicial autonomy, a key component of the rule of law, this book demonstrates that the fragmentation of political power is a necessary condition for the rule of law. In particular, it shows how party competition sets the stage for independent courts. Using case studies of Argentina at the national level and of two neighboring Argentine provinces, San Luis and Mendoza, this book also addresses patterns of power in the economic and societal realms. The distribution of economic resources among members of a divided elite fosters competitive politics and is therefore one path to the requisite political fragmentation. Where institutional power and economic power converge, a reform coalition of civil society actors can overcome monopolies in the political realm.