Judicial Intervention Research Articles

Book Review: International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts, Luke Nottage. Edward Elgar Publishing. Cheltenham, UK 2021

international arbitration, domestic arbitration, remission, partial remission, suspension of proceedings, Article 34(4) of UNCITRAL Model Law, arbitral tribunal, judicial intervention, powers of arbitrators, modified award, Arbitration and Conciliation Act 1996, curability, International Arbitration Act, Singapore Arbitration Act, resumption, fresh evidence.

Betamax V. STC: Alleged Illegality, Public Policy and the Model Law

Public policy can be raised in the context of setting aside or enforcing an arbitral award, and there is within international commercial arbitration a general consensus that the public policy concept should be defined narrowly. There is one aspect of public policy in particular which highlights the tension between the finality of awards and the right of the forum state to uphold its public policy. That is the situation where, in the face of alleged illegality, the arbitral tribunal concludes the underlying contract is lawful and enforceable. The question then arises: should a national court be permitted to re-examine the tribunal’s findings in this regard at the point of setting aside or enforcement? Relying on authorities from Singapore and England, the Judicial Committee of the Privy Council in Betamax v State Trading Corporation – a case appealed from Mauritius and which concerned an alleged breach of public procurement rules – has held that the answer to that question should be no. The Privy Council’s decision will be an important addition to the Model Law jurisprudence on Articles 34(2)(b)(ii) and 36(1)(b)(ii), and one can expect it to be cited and discussed beyond the confines of Mauritius. international arbitration, domestic arbitration, remission, partial remission, suspension of proceedings, Article 34(4) of UNCITRAL Model Law, arbitral tribunal, judicial intervention, powers of arbitrators, modified award, Arbitration and Conciliation Act 1996, curability, International Arbitration Act, Singapore Arbitration Act, resumption, fresh evidence.

Power of Remission: Unanswered Questions

The power of remission under Article 34(4) of the United Nations Commission on International Trade Law (UNCITRAL) Model Law often rides on a thin line between arbitral autonomy and curial intervention. This is exemplified at various stages of its exercise including the grounds for remission, adjudication by arbitrators independent of court directions and enquiry upon resumption of setting aside proceedings. While remitting, courts seek to look into ‘curability’ of defects over the impact on other parts of the award, which may lead the enquiry beyond the scope of Article 34 (4). The power of arbitrators to accept fresh evidence often clashes with the scope of remission. The extent of court intervention upon resumption is bridled by independence of arbitrators, especially when the modified award has altered the grounds of setting aside proceedings under Article 34. An analysis of Indian and Singaporean judicial trend helps understand the practical nuances of remission. While both jurisdictions are open to remission, they differ with respect to extent of arbitral autonomy. Courts are yet to conclusively define curable defects vis-à-vis partial remission, scope of modification of awards and the extent of interference upon resumption. This article seeks to identify and address such issues in the application of Article 34(4). international arbitration, domestic arbitration, remission, partial remission, suspension of proceedings, Article 34(4) of UNCITRAL Model Law, arbitral tribunal, judicial intervention, powers of arbitrators, modified award, Arbitration and Conciliation Act 1996, curability, International Arbitration Act, Singapore Arbitration Act, resumption, fresh evidence.

Judicial Activism in Brazil

The purpose of this article is to provoke a debate about the possibilities and limits of judicial intervention in the other branches of the Republic. Judicial activism presupposes, broadly speaking, the failure to carry out public policies that guarantee the fundamental rights of Brazilian citizens by those responsible for it. Currently, the role of the Judiciary in granting fundamental rights constitutionally provided for has caused a reaction from the other powers. This is because, in these times where there is unprecedented ease in the access of information, it is important for political actors to keep the electorate's sympathy up to date. The initiative by the Judiciary in the performance of a function that was not primarily attributed to it by the Federal Constitution and has the capacity to attract protagonism to itself. Through research of doctrinal and jurisprudential positioning, we approach the legitimacy of this intervention from a legal perspective and the consequences of social order that arise from it. In addition, we show how judicial activism has taken on an important role in delivering justice in historic situations of inequality and segregation Finally, we conclude that judicial activism must be contemporized to fulfill the role of fundamental resource to correct omissions on the part of the Public Power capable of affecting the minimum existential to human dignity. The arbitrary or improper use of the Judiciary's ability to interfere in other powers may configure its politicization, affect its duty of exemption, culminating in the imbalance of the rule of law.

From birth to agony: The political life of Operation Car Wash (Operação Lava Jato)

This article reconstructs Operation Car Wash’s (Operação Lava Jato) political project. Three different phases of the operation are analysed: its conception, its encounter with political and administrative corruption, and its attempt to mobilize popular support to combat political and administrative corruption. The analysis characterizes the operation as a particular manifestation of judicial intervention in the system of representative politics, presenting a critical view of its effects on the balance of power between non-elected and elected officials.

Principles and rules on insolvency practitioners' remuneration

AbstractOvercharging by insolvency practitioners is a problem that has invited legislative and judicial intervention in several commonwealth jurisdictions, and it continues to be a concern in many of them. Such regulation is justified because of the failure of unsecured creditors to effectively monitor and control the practitioner's charges, leading to failure in the insolvency practitioners' services market. However, the rules on fixing the practitioner's remuneration are not always aligned with basic principles, and their applications can be challenging. From the vantage point that regulations should seek to combat market failure, this article elucidates the principles and rules that ought to apply in fixing insolvency practitioners' remuneration. It analyses who ought to be empowered to set remuneration, the rules on disclosure, the meaning of the value of services rendered and the approaches of the courts in computing value, by reference to the laws of England, Singapore and Hong Kong SAR, and suggests reforms to make the rules consistent with the identified principles.

‘Antisocial Behaviour, Unfriendly Relations’: Assessing the Contemporary Value of the Categories of Unfriendly Acts and Retorsion in International Law

Abstract This article considers the international law categories of unfriendly acts and retorsion in the modern context. To date, these categories articulating the freedoms that States enjoy below the threshold of international wrongfulness have received little attention in academic debate. But we consider both categories are of increasing relevance in the context of modern international conflict (in the broadest sense) and inter-State competition, particularly in relation to the regulation of hostile cyber activity between States. Unfriendly acts denotes State activity which, while lawful as a matter of international law, would nonetheless not be welcomed by the States it targets. Retorsion covers another sub-set of lawful but unfriendly State activity, substantively the same as unfriendly acts but done in response to prior unwelcome acts of other States. Having defined these categories, including by reference to a survey of contemporary State practice and judicial treatment, this article then considers why their utility and relevance to States are increasing. The article ends on the cautionary note that while unfriendly acts and retorsion may be increasingly necessary and desirable to States as international law tools as hostile activity occupies more of the space below forcible acts, they equally need to be properly understood and ‘handled with care’ by international lawyers, to ensure they are not bestowed with legal characteristics they do not possess, unduly constraining States in the process. The risk of misuse of these categories by States also needs to be kept in mind.

The impact of public interest litigation: the case of socio-economic rights

ABSTRACT In the global turn to rights, courts are often reified as central actors in processes of social transformation. In this respect, it is worth recalling the clear-eyed and grounded perspective of Andrea Durbach, who emphasised both the potency and limitation of litigation, as well as the diverse functions of courts. This Festschrift essay assesses the transformative power of socio-economic rights litigation. It begins by setting out the different reasons as to why we would expect (or not) judicial intervention on socio-economic rights to engender social change and then distils some central methodological parameters for assessing and undertaking empirical research. This is followed by an overview of the literature with case studies on housing rights litigation in South Africa and education rights in the United States. This reveals significant variance in material and political outcomes for applicant individuals, communities and social movements but points to key determinants of ‘success’—especially the role of social mobilisation, creation of broad-based alliances, and smart remedies.

Sustainability transformations, environmental rule of law and the Indian judiciary: Connecting the dots through climate change litigation

There is an urgency to address societal challenges due to earth's environmental crisis and its capacity to sustain human well-being. In this context, ‘transformations towards sustainability’ move to centre-stage and are increasingly institutionalised within global scientific and policy discourses. Sustainability transformations involve reorientation and restructuring of governance processes and actions. Though the governance of transformation involves multiple actors, this article examines the role of the judiciary in steering a transformation process towards a sustainable and equitable future. Judicial intervention, as a strategic tool, can effect change in human action thereby enabling transformative changes. Drawing on social science literature, the article offers a novel interdisciplinary analysis of illustrative Indian climate change legal decisions located within the sustainability transformations discourse underpinned by the environmental rule of law. The Indian judiciary, noted for expansive thinking, and acting as a ‘lever of transformation’, is slowly addressing climate cases. These cases categorised as – climate conscious, climate accountability and climate futurity – reflect progressive cumulative outcomes, albeit incremental, but they nevertheless enable conditions for transformative change.

The Impact of the Seat of Arbitration on Judicial-Interference: Do Sections 67, 68 and 69 of the English Arbitration Act 1996 regarding Challenges of Awards Make London An Attractive Hub?

There are various determinants that induce London to be the favourable seat. In this regard, the grounds for challenging an award have some severe implications on determining London as the arbitral seat.1 Arbitrations with a London seat are exercised under the ‘supervisory jurisdiction’2 of the English courts and the Arbitration Act 1996 (AA 1996).3 That is to say, any challenge to an interim or final award made by the arbitrators may be fulfilled in the courts of the location chosen as the arbitral seat. The consensual nature of international arbitration depends on certain core principles such as party autonomy, judicial nonintervention and finality of the arbitral awards. Nonetheless, the binding aspect of the arbitral award and its enforceability akin to that of final judgements of national courts necessitate some “balanced” degree of judicial supervision.

The Impact of the Seat of Arbitration on Judicial-Interference: Do Sections 67, 68 and 69 of the English Arbitration Act 1996 regarding Challenges of Awards Make London An Attractive Hub?

There are various determinants that induce London to be the favourable seat. In this regard, the grounds for challenging an award have some severe implications on determining London as the arbitral seat.1 Arbitrations with a London seat are exercised under the ‘supervisory jurisdiction’2 of the English courts and the Arbitration Act 1996 (AA 1996).3 That is to say, any challenge to an interim or final award made by the arbitrators may be fulfilled in the courts of the location chosen as the arbitral seat. The consensual nature of international arbitration depends on certain core principles such as party autonomy, judicial nonintervention and finality of the arbitral awards. Nonetheless, the binding aspect of the arbitral award and its enforceability akin to that of final judgements of national courts necessitate some “balanced” degree of judicial supervision.

Taxpayers’ Rights in the Courtroom

In this article, the author presents the following two issues that affect the behaviour of courts in tax cases: (i) the judicial treatment of procedural violations committed by the tax administration; and (ii) the possibility of court benevolence toward non-represented or badly represented taxpayers.

TRENDS: The Geography of Law: Understanding the Origin of State and Federal Redistricting Cases

Knowing where legal complaints arise can tell us something about them and reveal clues about their conditions of origin. In this paper, we examine the geographic origins of litigation challenging the boundaries of electoral districts—an increasingly salient and prominent source of political conflict. We construct an original dataset of all redistricting cases in state and federal courts nationwide, from 1960 to 2019. We show that redistricting litigation surfaces not just in states where there are regions undergoing rapid population change or that have a greater proportion of aggrieved racial minority groups but also in areas where there is close partisan competition. The filing of redistricting litigation is highly responsive to hypercompetitive political environments, suggesting that parties pursue judicial intervention vigorously when political power hangs in the balance and not simply due to demographic changes associated with decennial population measurement. These findings have important implications for understanding the temporal and spatial dynamics of redistricting politics and the consequences of intense partisan electoral competition in the United States.

Telaah Efektivitas Mekanisme Pemberhentian Presiden Indonesia: Perbandingan Praktik Amerika Serikat dan Korea Selatan

Impeachment is a part of the control mechanism in the constitutional system to allege the President's violation of the constitution. Impeachment characterizes presidential systems as implemented in various countries, such as the United States, South Korea, and Indonesia. This study aimed to examine the rule and practice on the impeachment of the President and/or Vice President in Indonesia, with reference to the United States and South Korea. Then, it analyzed how this mechanism is effective to be implemented in Indonesia. This study used a juridical research method with a comparative law approach. This study indicated differences in impeachment in the United States, South Korea, and Indonesia. The impeachment mechanism in the United States only involved representative institutions, but that in Indonesia and South Korea required judicial intervention. In particular, Indonesia's impeachment dealt with the decision that remained in the hands of the political institution, the People's Consultative Assembly. In South Korea, the final decision ended in the judicial institution. Through this comparison, Indonesia should reformulate the impeachment mechanism of the President and/or Vice President in Indonesia with the following suggestions. First, regarding allegations of serious violations, the final impeachment decision must be in the Constitutional Court. Second, concerning allegations of misconduct, the decision on impeachment must rest with the People's Consultative Assembly.
 KEYWORDS: Impeachment, Indonesia, South Korea, United States.

소년법의 우범소년 규정 폐지와 복지적 개입 활성화

Crime-prone Juvenile under the Juvenile Act can receive protective detention, such as transfering to the Juvenile Reformatory. Crime-prone Juvenile means Juveniles who are ten years of age or more, fall under any of the following items and in view of their character or environment, may be prone to commit acts in violation of Acts and subordinate statutes relating to criminal punishment. ①Juveniles who have inclinations to cause uneasy feeling for people around them by roaming in groups. ②Juveniles who stay away from home without any justifiable reason. ③Juveniles who have inclinations to drink alcohol, raise a disturbance or be exposed to harmful environment influences. The theory of the existence or abolition of Crime-prone Juvenile, which had existed since the enactment of the Juvenile Act on July 24, 1958, began on July 31, 1963, and has continued to this day. If the theory of the existence or abolition of Crime-prone Juvenile continues for nearly 60 years without resolving the problem of the unclear concept of Crime-prone Juvenile and judicial intervention, the theory of improvement of Crime-prone Juvenile is not valid. The current law has a system of welfare interventions for children and adolescents that may be considered Crime-prone Juvenile. Let''s abolish the rule on Crime-prone Juvenile and actively promote welfare interventions.

A Study of Judicial Activism in India

The scope of judicial activism not a limited one. It is used to look in the matters and enforce what is beneficial for the society at large. The word “JUSTICE” has no end, this critically tells that justice is for all, ‘rich or poor, strong or weak’, even the king and queen were entrusted by karma to provide justice. The object behind the research paper is focused on the expansion of judicial activism in Indian democracy. The judicial activism in India had touched almost every aspect of life to provide positive justice. Many a times the right to judicial review and judicial activism act as a boon for the weaker section of society in protecting their rights by mere filling of a social interest litigation or a public interest litigation. Many a times judicial intervention into the matter of executive and legislature have provided society with the upper hand in getting justice. Judicial system is a means of providing ‘JUSTICE ‘to all, and also to take all relevant and possible steps to protect the interest of JUSTICE. Judicial activism legal framework in Indian constitution integration towards fundamental rights.

How to Manage the Unmanageable: Inconsistent Ottoman Strategies to Prevent Prostitution

Abstract Based on narratives, including ‘urban legends’, and Ottoman archival sources, this article deals with prostitution in the Ottoman Empire in view of its legal and judicial treatment according to both Sharia and sultanic law. Ottoman policies towards prostitution included measures and punishments ranging from milder (imprisonment, expulsion, taxation, legalization of brothels) to harsher (death sentence and corporal punishment). Since the Ottoman Empire included territories of a great variety of peoples and local customs the measures applied changed over time and varied across places. The author puts forward the hypothesis that the harshness of punishment depended perhaps also on the impact of conservative religious circles such as the Kadizâdelis and Mujaddidiyah.

Filling the evidentiary gap in climate litigation

Lawsuits concerning the impacts of climate change make causal claims about the effect of defendants’ greenhouse gas (GHG) emissions on plaintiffs and have proliferated around the world. Plaintiffs have sought, inter alia, compensation for climate-related losses and to compel governments to reduce their GHG emissions. So far, most of these claims have been unsuccessful. Here we assess the scientific and legal bases for establishing causation and evaluate judicial treatment of scientific evidence in 73 lawsuits. We find that the evidence submitted and referenced in these cases lags considerably behind the state of the art in climate science, impeding causation claims. We conclude that greater appreciation and exploitation of existing methodologies in attribution science could address obstacles to causation and improve the prospects of litigation as a route to compensation for losses, regulatory action and emission reductions by defendants seeking to limit legal liability. Legal cases to force governments to reduce emissions or to pursue compensation for climate change-related losses are increasing. The scientific evidence used in such cases is found to be lagging behind state-of-the-art climate science; using up-to-date methodologies could improve causation claims.

FROM BEST INTERESTS TO BETTER INTERESTS? VALUES, UNWISDOM AND OBJECTIVITY IN MENTAL CAPACITY LAW

AbstractThe Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person's unwise decisions and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity and objectivity, considered against parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act's radical under-specificity means, paradoxically, that this comes to be resolved through abstracted values, rather than the centricity of the person herself.

Judicial interventions in health policy: Epistemic competence and the courts.

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic competence of the judiciary from a system-oriented approach. I outline three epistemic features that set the judiciary and the judicial decision-making process apart from other types of decision-makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision-making process with a specific focus on recent court decisions in health rights and health policy in Chile.