Judicial Review Procedure Research Articles

Prividna jednostepenost postupka javnih nabavki – Ustavni sud opet u ulozi „pozitivnog zakonodavca“

The Constitutional Court recognized the constitutional appeal applicant’s right to submit an extraordinary legal remedy in the administrative dispute (judicial review procedure) – a request for reassessment of a court decision (legal remedy submitted to the Supreme Court against the decision of the Administrative Court) in the field of public procurement. One situation in which submission of this legal remedy is permitted is in matters where an administrative appeal was excluded. The Constitutional Court took the position that a request for the protection of rights, which is a regular legal remedy in the public procurement procedure, cannot be compared to the appeal in the administrative proceedings, and that, hence, filing request for reassessment of a court decision is permitted in the public procurement procedure. The Constitutional Court thus made a creative interpretative decision, which created a new legal rule. The paper examines the effects and correctness of the aforementioned decision of the Constitutional Court.

When International Commercial Arbitration meets China’s sanction laws: living together but remaining apart?

Abstract In the light of China’s newly installed sanction laws recently being considered by Chinese court in a judicial review procedure for an arbitral award, this article examines two aspects of these laws that have been largely overlooked by previous research: their private international law nature and the impact they have on the enforcement of foreign arbitral awards. In their function, the Chinese sanction laws should neither fulfil the role of rules established to utilize private persons to implement Chinese state policy, nor, in their application, contradict China’s claimed role in the international legal and political framework. Accordingly, two routes are offered as to how these laws should be applied: first, the legal restrains on private enforcement of the sanction laws should be made available; and secondly, China should ensure that its sanction laws do not compromise the New York Convention’s remit.

Development of Constitutionalism in Pakistan: An Appraisal

The phenomenon of constitutionalism serves as a safeguard against the arbitrary use of power and is necessary to ensure rule of law in society. Traditionally, there are two types of constitutionalism; legal and political. The former justifies judicial review as an important constitutional tool and acknowledges the unique role of the judiciary in enforcing rule of law in society. The latter questions the democratic legitimacy of judicial review and prefers democratic parliamentary procedures on political decisions. With the help of qualitative research methodology, this Article explores historical developments influencing the outlines of Pakistani constitutionalism. It highlights limitations and challenges in relation to constitutionalism in the formative period of the country. It also provides an insight into the colonial constitutional practices before the independence of Pakistan. After that, there is a discussion of the pivotal judgments that had a profound impact on constitutionalism in the country. The abrogation of the first Constitution and promulgation of a new Constitution under the military regime and the attitude of courts during this period also form part of this article.

Extract of Important Conclusions of the Kúria (Supreme Court of Hungary) Regarding Taxpayers’ Rights in Judicial Review Procedures for the Years 2017 to 2021

The fundamental rights of the taxpayer are set out in the Hungarian Constitution and statutory laws. The effectiveness of these rights is often further elaborated in court decisions. In this article, the author first summarizes the context of, and then presents extracts from, these decisions.

Developments in Judicial Review Practice and Procedure 2021

1. This article covers key case law on judicial review practice and procedure between July 2020 and 2021. The article covers the following eight topics: Urgent applicationsTime limitsAlternative re...

Медиация в публичном праве Великобритании

Mediation as one of alternative dispute resolution means has been successfully applied in the civil relationship sphere in Great Britain for a long time, for example, in cases on protection of consumer rights or cases involving commercial activities. Mediation is not an obligatory condition for addressing a court, refusal from mediation may lead to negative consequences for the parties in the legal expense distribution. Courts are constantly emphasizing their interest in early settlement of disputes including public law ones that are reviewed in the judicial review procedure: the jurisdiction specifically designed for the verification of legality of actions and judgments of the public government.

Development of Constitutionalism in Pakistan: An Appraisal

The phenomenon of constitutionalism serves as a safeguard against the arbitrary use of power and is necessary to ensure rule of law in society. Traditionally, there are two types of constitutionalism; legal and political. The former justifies judicial review as an important constitutional tool and acknowledges the unique role of the judiciary in enforcing rule of law in society. The latter questions the democratic legitimacy of judicial review and prefers democratic parliamentary procedures on political decisions. With the help of qualitative research methodology, this Article explores historical developments influencing the outlines of Pakistani constitutionalism. It highlights limitations and challenges in relation to constitutionalism in the formative period of the country. It also provides an insight into the colonial constitutional practices before the independence of Pakistan. After that, there is a discussion of the pivotal judgments that had a profound impact on constitutionalism in the country. The abrogation of the first Constitution and promulgation of a new Constitution under the military regime and the attitude of courts during this period also form part of this article.

Механизм возобновления дел по новым и вновь открывшимся обстоятельствам: цели, значение, судебное толкование (окончание)

The article is devoted to the research of the mechanism in the reconsidering judicial acts under reopened or new circumstances as providing the necessary deviation from the requirement of stability in judicial practice to correct an erroneous judicial act, an analysis of the grounds for reviewing and the importance of judicial review procedures in the system. The author pays an attention to discussions about the possibility of reconsidering a judicial act, due to the development of the position of the supreme court on legal issues, on its borders. The article also analyzes the most important judicial practice of the Constitutional Court of the Russian Federation, the ECHR, and the Resolutions of the Plenum of the Supreme court of the Russian Federation, which substantively reveal the approach of these courts to the mechanism in reconsidering judicial acts under reopened or new circumstances.

Metamorphoses of an Adversarial Nature of Criminal Proceedings in Cases of Judicial Review

An adversarial nature of any judicial proceedings, which is characteristic of justice and corresponds to its nature, is revealed in criminal proceedings not only in criminal cases, but also in so called cases of judicial review exercised during pre-trial proceedings. In the present paper the features of adversarial construction of judicial review proceedings in the Russian criminal process are investigated in the context of the purpose and subject of judicial review at pre-trial stages. The author has analyzed the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of the procedural parties in cases of judicial review, as well as the peculiarities of initiating the judicial review proceedings and distribution of the burden of proof between the parties; reveals the transformation of the procedural roles of the main participants of the adversarial proceedings when the disputed issue is transfered from the main proceedings in the criminal case for consideration in the procedure of judicial review within the framework of separate proceedings. The paper also elucidates such features characteristic for certain forms of judicial review as involvement of third parties having their own interest in the judicial review case and restriction of participation in the court session of the interested party. The paper focuses on the problem of ambiguous (from the standpoint of the principle of adversariality) procedural status of the prosecutor in judicial and review proceedings in which independent parties are the investigator and (or) the head of the investigative body. Alternative options for elimination of the problem discussed above are proposed. It is concluded that in the course of normative regulation of judicial review procedures and law enforcement, it is necessary to take into account the specifics of cases of judicial review and the originality of manifestation of adversarial foundation in such cases.

Developments in Judicial Review Practice and Procedure 2019

1. This article covers key case law on the topic between November 2018 and 2019 as well as changes to the Civil Procedure Rules and the Administrative Court Judicial Review Guide during the same pe...

The realisation of the constitutional principles - the right to good administration and the right to legal remedy - in Hungary

The paper aims to present the realisation of two procedural principles – the right to good administration and the right to legal remedy – regulated also in the Fundamental Law of Hungary, which entered into force on 1st January 2012. The right to legal remedy has been a constitutional principle since the change of regime (in 1989) and the right to good administration has been constitutionally named only by the Fundamental Law of Hungary. The actuality of the paper is the fact that in Hungary from the 1st of January 2018 completely new codes regulate the general public administrative procedures and the administrative justice. Based on these Acts, a new legal remedy system has been introduced regarding administrative decisions in which the judicial review procedures became – instead of the internal administrative appeal procedures – in most of the cases the firstly used legal remedy possibility regarding administrative decisions. After a short overview of the new legal remedy system which has been introduced regarding administrative decisions, the paper presents the constitutional basis of the right to good administration and the right to legal remedy. Finally, we analyse in detail the latest and most relevant decisions of the Constitutional Court of Hungary and some cases of the Curia of Hungary about the practice of the direct enforcement of the constitutional principles: the right to good administration and the right to legal remedy regarding administrative decisions.

The Importance of Female Judge Representation in the Constitutional Court of Indonesia to Achieve Gender Equality during Judicial Review Procedure

The paper will discuss about how important the female judge representation in Indonesia’s Constitutional Court in order to achieve equality between genders during the process of judicial review. The Constitutional Court of Indonesia was created as a body that has the eligibility to review constitutionality under the constitution. One of the jurisdictions that the Constitutional Court of Indonesia has is to conduct judicial review. One of the elements that is needed to be achieved in the process is gender equality, in which a legislation not only guarantee lives of Indonesians as citizens with human rights, but also guarantee the equality of genders. This needs to be upheld in order to eliminate gender biased substances in legislations. Gender biased legislations will lead to disadvantages for genders. For example, the civil relations between a mother and a child born outside wedlock and the age limitation in marriage in the Indonesian Marriage Act. One of the solutions that can be done in order to eliminate gender bias clauses in legislations is by adding female representatives in the Constitutional Court. There is only one out of nine female judge listed in The Constitutional Court of Indonesia. This is seen as a problem, because in terms of reviewing clauses that give women disadvantages, there is only one woman perspectives in male-dominated panel. The research methodology used in this paper is through literature review by examining the process of judicial review. The author also uses literature review and juridical analysis to examine cases regarding gender-biased legislations. In order to examine the legislations, the author uses case study based on the judicial review verdict on the stated legislations. The author also uses literature review to examine secondary quantitative data on gender representations in the Constitutional Court.

Judicial Reforms, Sharia Law, and the Death Penalty in the Late Ottoman Empire

There is a general consensus among Ottomanists that capital punishment became a rare occurrence in the Ottoman Empire from the 1840s onwards. This paper argues that two structural aspects of the reformed criminal justice system functioned as constraints on the imposition of the death penalty in the late Ottoman Empire. The first concerns the Tanzimat state’s particular attention to the principle of legality and procedural correctness with regard to criminal prosecution and sentencing. These principles, together with a centralized judicial review procedure, deprived local authorities of discretionary punishment powers that left them little leeway to administer the law on their own. This resulted in the circumscribed use of summary executions and death sentences for crimes against the state. The second aspect concerns the merging of Islamic criminal law, particularly Hanafi doctrines, with state-enacted penal codes, and, in parallel, the dual trial procedure carried out in crimes committed against individuals, i.e., homicide. Drawing on archival sources as well as distinct viewpoints harbored by the Ottoman elites, this article contends that the mingling of two spheres of jurisdiction extensively restricted the power of the judicial councils/Nizamiye courts to pass death sentences for acts of premeditated murder.

Proceed with Caution: Law Reform, Judicial Review and the Judicature Modernisation Bill

The Judicature Modernisation Bill 2013 re-enacts the operative provisions of the Judicature Amendment Act 1972. This article analyses the re-enacted provisions, concluding that the reform will be largely successful relative to a goal of "non-substantive reform". However, this article argues that there were significant defects in the legislative process leading to reform, especially in terms of parliamentary scrutiny of judicial review. In a context of a fused executive–legislative branch of government, it is inappropriate to legislate for judicial review without adequate consideration of the effects on judicial review powers and processes. This article argues that judicial review procedure should not be contained in statute in order to prevent executive control of the statutory review procedure.

A Question of Fairness: The Proper Standard of Review of School Board Just and Reasonable Cause Determinations in Teacher Termination Proceedings in Idaho

This article argues that judicial review of a school board’s just and reasonable cause determination in Idaho must be under a de novo, i.e. independent and non-deferential, standard of review. The article discusses Idaho’s administrative and judicial review procedures for teacher discharge and nonrenewal cases based on a just and reasonable cause determination by the school board. The article then discusses procedural due process principles, which require that administrative and judicial review procedures provide a level playing field upon which the teacher’s right to continued employment is determined. The article argues that de novo review, rather than some lesser, more deferential standard, must apply to review of school board just and reasonable cause determinations. The article concludes by identifying and discussing the types of administrative hearing and judicial review systems that must be in place to satisfy due process requirements.

Reforming Judicial Review: Procedural Reform and the Avoidance of Substantive Review?

Recent English reforms to restrict the availability of access to a reviewing court through changes to the judicial review procedure create rule of law concerns. This paper examines those reforms in light of comparative studies of the existing law and recent reforms in Australia, Canada, and England and Wales. The study demonstrates the relative strictness of time limits for bringing an application for judicial review as opposed to litigation in other subject matters, and the particular ‘hardness’ of those limits in England and Wales. The authors also situate the focus on judicial review procedure within the broader trend of proceduralism in civil litigation, and illustrate – via two vignettes from Australia and Canada – how this new proceeduralism create particular vulnerability in the context of judicial review.

Judicial review reform: avoiding effective review through procedural means?

ABSTRACTFrom the starting point that public officials and specialist administrative agencies affect most areas of economic and social life in the modern ‘administrative state’, the authors highlight rule of law concerns that have been raised with recent English reforms to restrict the availability of access to a reviewing court through changes to the judicial review procedure. The authors consider this argument in light of comparative studies of the existing law and recent reforms in Australia, Canada, and England and Wales. This comparison provides evidence of much tighter restrictions on time limits for bringing an application for judicial review as opposed to litigation in other subject matters. The authors also situate the focus on judicial review procedure within the broader trend of proceduralism in civil litigation. The authors conclude that while there is a legitimate need for established procedures to control the judicial process and ensure efficiency, cost-effectiveness, and broader public interests, overbearing procedural reforms risk accessible and effective judicial review of public agencies and officials, which can impair the principle of legality in that all public decision-making must be held to established legal standards.

АНТИДЕМПИНГОВЫЕ МЕРЫ ПРОТИВ РОССИЙСКИХ ЭКСПОРТЕРОВ: ВОЗМОЖНОСТИ УСТРАНЕНИЯ

Anti-dumping policy is the instrument of protection of domestic producers from dumped imports causing injury to the domestic industry. Russian exporters are facing significant barriers to trade in foreign markets in the form of anti-dumping measures, in particular in the case of non-fuel exports. While Russia is striving to a higher degree of export diversification, this goal cannot be achieved given the current magnitude of the existing anti-dumping measures against Russian exporters that mostly affect two major export oriented industries, namely steel and fertilizers. This paper estimates losses of Russian exports resulting from the anti-dumping measures imposed by third countries. We use partial equilibrium model incorporated into the World Integrated Trade Solutions (WITS) software that allows performing tariff cuts simulations to estimate the effects of removal of the anti-dumping on trade. While this estimation is problematic due to the lack of firm-level data, our results show that the total loss of exports is around 3 Billion US$ where the major share is attributed to the anti-dumping measures imposed by the USA. We also give an overview of the instruments that could be used by Russian exporters to defend their interests in the context of the Russian membership to the WTO. While there is no absolute remedy to counteract discrimination resulting from anti-dumping, we believe that each legal instrument may be successfully used on a case-by-case basis. Therefore, the specific circumstances of each case must be taken into account. In this regard, we also identify and compare the determinants of litigation of anti-dumping measures in the WTO and under domestic judicial review procedures, namely in the US Court of International Trade (USCIT) and the EU General Court. Authors emphasise alternative solutions, namely the importance of cooperation of the exporter with the investigating authority or the additional rule in the regional trade agreements. Although the WTO dispute settlement is costly and time-consuming and does not normally lead to restoration of the market access, it may bring huge benefits for the exporter. These benefits stem from the legal interpretations, rulings and recommendations of the DSB on systemic issues that clarify the Anti-Dumping Agreement and directly affect the ways the anti-dumping investigations will be conducted in the future.

The Security Council's 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review

AbstractFrom a due process perspective, the essential problem with the UN Security Council's targeted sanctions regime is the persistent lack of sufficient access to confidential material relied upon for the designation of targeted individuals. Despite the Security Council's efforts to amend the procedures of the sanctions regime, it is highly unlikely that this deficiency can ever be remedied within its present top-down structure. Therefore, this article proposes to decentralize the regime's designation procedure, to mitigate the problem of being unable to challenge or review confidential information and evidence, which underlies an individual's designation. Such an amendment would entail that the designation of a particular individual and the possible subsequent judicial review procedure would take place domestically, prior to a universal blacklisting by the UN Sanctions Committee. As a consequence, any confidential material relied upon could stay within the designating state, and would be shared only with courts and possibly special security-cleared advocates, within that domestic legal order. This would make it more acceptable for the relevant authorities to make such information available.

The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications

This paper charts the development and identifies the core features of a unitary conception of public law that emerged in English law in the wake of procedural reforms in the late 1970s that established the judicial review procedure. This public interest conception holds that the principal concerns of public law are regulation of public power in the public interest and according to precepts of good administration. Private law was distinguished on the basis that its concern was enforcement of private rights and protection of individual interests. This public interest conception underpinned major legal developments in a critical ten- to fifteen-year period following the procedural reform which, together, forged a distinctive, integrated “system” of public law in English law. These developments were radical in a jurisdiction characterised by the Diceyan tradition that public law is private law. On the other hand, it was consonant with the historical development of English law that a substantive legal change was secreted in the interstices of a procedural innovation.The public interest conception has proven hugely influential. It has been used as a normative idea to guide legal development across public law fields. However, the paper argues that this is problematic. This conception was forged by reference to only one branch of public law, the common law of judicial review. Contemporary public law is composed of a range of different bodies of doctrine; it has no functional unity. Where the public interest conception is used to guide development in fields other than common law review, which continues to bear its hallmarks, the risk is that the distinctively valuable functions of those other fields are impeded, while the coherence of those bodies of doctrine may be distorted. The paper analyses two examples of where this risk has become reality: the approach to grant of relief in review proceedings on EU grounds (specifically in the context of EU environmental Directives), and the approach to damages under the Human Rights Act 1998.Ironically, principal lessons to be drawn from the emergence of the unitary public interest conception of public law are that there is no such thing as a unitary system of public law in contemporary English law, and resting legal development on the idea of a general divide between private and public law is likely to lead to fuzzy thinking, incoherence and the warping of legal doctrine; such over-simplifications, while they may appear “neat” or seem “intuitive”, should be repudiated.