Supervisory Jurisdiction Research Articles

Writs and Rights: A Comprehensive Study of Judicial Remedies in India

The Indian Constitution give High Courts the power to issue writs to authorities, directing them to take or avoid from taking activities that are needed by law and the Constitution. Even before independence, several Indian High Courts had some few writs jurisdiction; however, the true extent and berth of this power have only been fully pour by High Courts after the Indian Constitution, which guarantees basic rights, came into effect. All Indian courts are obligated to provide appellate and supervisory jurisdiction over district and subordinate courts within the territories they oversee. This means that high courts may have the most extensive caseload of any court level. Research has indicated that the maximum Due to a combination of a lack of human resources and an inadequate case load, High Courts in India frequently experience delays and backlogs in cases. The community of the court to judge whether legislative acts are constitutional is called as judicial review of legislative acts. Enabling judicial review of State security measures that result in an unauthorized deprivation of an individual's liberty is the primary goal of writ of habeas corpus. Instead, then punishing any officials in charge of their incarceration, the purpose of the writ is to release the individual from unlawful cure. These are the writs that are explicitly mentioned in the Constitution tonight: Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto. All forms of the government apart from dictatorship must have a robust, impartial, and independent judiciary. The judiciary is essential to the interpretation and application of the law in any nation and resolving conflicts that arise between citizens as well as between citizens and the state. When a written constitution is in place, the courts also carry out the expensive duty of conserve the supremacy of the document by explain and distinguish its provisions and check that all authorities endure within it enclose.

Challenging Orthodoxy: State Immunity from Court Supervisory Jurisdiction in Investor-State Disputes?

This article considers the role of national courts in investment treaty arbitrations between an investor and a host-State. While the ICSID arbitration regime provides for an a-national approach, the choice of alternative arbitral institutions or rules in an investment treaty could bring into issue the role of the courts of the place of arbitration. It is suggested that the involvement of a sovereign State as a party to such arbitration proceedings raises issues of state immunity not encountered in international commercial arbitrations. While an agreement in an investment treaty to arbitrate an investor-state dispute confers jurisdiction on an arbitral tribunal to determine the dispute, there is presently no global consensus that such an agreement alone amounts to a waiver of immunity of the host-State from the jurisdiction of other national Courts. Absent such waiver of jurisdiction, the court of the place of arbitration would lack legitimacy to exercise any ‘supervisory’ jurisdiction over the host-State party to ensure compliance under its domestic legislation. The authors suggest that national legislatures should consider this when reviewing applicable domestic laws on international arbitration and state immunity. Treaty negotiators should be aware as well of such limitations. State immunity, waiver of immunity, investment arbitration agreement, investor-State dispute, international arbitration, immunity from jurisdiction, court of the seat, supervisory jurisdiction

Time for a pluralist approach? Judicial review of non-state decision makers in Canada

The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall’s categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review’s boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote.

Judicial Review as Dialogical Accountability: Aotearoa New Zealand’s Supervisory Jurisdiction

Abstract This article explores the way judicial review of administrative action in Aotearoa New Zealand engenders a form of dialogical accountability; that is, a relational form of accountability as conceptualised by Bovens. In particular, the article explains the current practice and experience in a way attentive to its expressive character, highlighting the features of judicial review – both procedural infrastructure and substantive doctrinal norms – that foster and support this dynamic relationship of dialogue between actor and forum. The articular concludes with some reflections on the virtue of viewing judicial review in dialogical terms and implications for its place within the myriad of other accountability conversations operating within modern government in New Zealand.

Is notice for the purpose of Guardian Trust liability really different to notice or knowledge necessary for constructive trusteeship? Quasi Benjamin orders to assist trustees in difficult situations

The Court of Appeal in Finers v Miro1 considered a trust and underlying company structure established by Mr Carlos Miro with the assistance of Mr Melvyn Stein, partner with London solicitors Messrs Finers. The Court of Appeal described the effect of the arrangement to be that all assets were held to the order of Mr Stein on behalf of Mr Miro. Of course, in those days trustees and solicitors were not subject to the same due diligence obligations that exist today. The judgment records that Mr Stein understood the wealth placed into the structure to be derived from Mr Miro’s successful business activities (though there is also a reference to inheritance, but nothing turns on this). After the structure had come about, Mr Stein learned of a report of a sub-committee of the United States House of Representatives, suggesting Mr Miro’s participation in fraud involving an insurance company called Anglo-American Insurance Company (Anglo-American) licenced in Louisiana, United States. Mr Stein became concerned that if this were the case, the wealth placed in the trust derived from Mr Miro’s fraudulent activity, leading to possible adverse claims to that property and, more significantly for Mr Stein and his firm, personal liability based on constructive trust principles (in the event that Mr Stein exercised powers to benefit Mr Miro). Faced with this difficultly, the firm together with Mr Stein and two companies in the structure sought directions on whether those responsible for investigating the affairs of Anglo-American, and recovering assets, should be informed of the existence of the trust structure. The judge directed that they should. Mr Miro appealed unsuccessfully. An issue before the Court of Appeal was whether Mr Stein and his firm in fact faced possible constructive trustee liability from distributions to Mr Miro (without the risk of such liability the supervisory jurisdiction of the court would not be engaged). The Court of Appeal agreed with Mr Stein. Dillon LJ explained: There is no reason to doubt that when Mr Stein set up all these elaborate arrangements for the defendant he honestly believed that all the moneys and assets belonged to the defendant as a result of inheritance and success in business and that the defendant wanted to conceal his wealth from fear of political expropriation. There are, however, now grounds for suspecting that very much of this wealth may have been achieved by the defendant by fraud on the insurance company. The defendant denies that there has been any fraud or dishonesty whatsoever on his part against the insurance company or any one else, but it is conceded, for the purposes of this appeal, that the plaintiffs have grounds for believing that he may have acquired funds from the wrongful misappropriation of assets of the insurance company. The liquidator has started three actions, now consolidated, against the defendant and certain companies in the United States. In none of them is fraud alleged against the defendant. If the liquidator can establish the causes of action pleaded it would not be necessary for him to allege fraud. So far the liquidator has not made, or even suggested that he may have, any claim against any of the plaintiffs. Nonetheless, at any rate if the decision of Millett J. in Agip (Africa) Ltd. v. Jackson [1990] Ch. 265 is correct (as to which I express no opinion either way since these proceedings do not have the right parties for a decision of the point), there is an arguable case by English law that the plaintiffs have constructive notice of the fraud of the defendant if there was fraud and hold their various powers over the ‘property investments moneys and companies’ in question, or some part thereof, on a constructive trust for the liquidator. Furthermore it is arguable, if the judgment of Millett J. is correct, that if Mr. Stein, with the knowledge he has, exercises his powers under the schemes he has set up to transfer any of the property and money in question to the defendant, he may be regarded by an English court as having acted dishonestly so as to render himself, and possibly the firm, personally liable to the liquidator for the amount of the property and moneys transferred to the defendant, or for any loss so occasioned to the liquidator.2

Accountable Algorithms: Adopting the Public Law Toolbox Outside the Realm of Public Law

Abstract It is well known that artificial intelligence, especially machine learning, has the potential for hugely beneficial impacts on all areas of life, but also carries with it dangers such as lack of transparency, over-rigidity of decision-making, negative feedback loops and unreasonable inferences. Such dangers also have the potential to be scaled across a whole area of decisions. There is, therefore, an increasing sense that we need greater accountability of algorithmic decision-making systems and it is argued here that public law and the grounds of judicial review are a ready-made toolkit specifically designed to render decision-makers accountable and to make precisely the kinds of trade-offs we will need to make between effectiveness and efficiency on the one hand and fairness on the other. These tools can therefore provide a blueprint as we work out how to govern ADM and render it accountable, even in a private context. This can take place by using the public law toolkit in interpreting existing legislation, informing future regulation and even through the exercise of a common law supervisory jurisdiction.

Written and Unwritten Constitutions – Judicial Review in Nigeria and the United Kingdom: are there Lessons for Nigeria?

Public authorities, bodies and institutions are established by statutory legislations and must therefore carryout their functions and operations in accordance with those prescribed statutory provisions. At any point those public authorities act outside those statutes, the general public should have unrestricted access to courts in order to checkmate those exegesis. The courts therefore have supervisory jurisdiction on public bodies and institutions under the realm of judicial review to determine the legality or otherwise of public institutions’ decisions affecting the general public or their properties. This article critically analyses the principles of judicial review in the United Kingdom and in Nigeria to see if there is anything the latter can learn form the former.

Under the hood of the draft Swiss trust law

Abstract Will trusts soon be part of Swiss private law? The Swiss government has recently published a draft bill for public consultation. This article presents its main features. It looks in some depth at the legal design of the proposal and how it fits into Switzerland’s civil law system. Neither a contract nor a legal entity, the proposed trust is a separate, ring-fenced fund legally owned by the trustee in the exclusive interest of the beneficiaries. Beneficiaries are protected by a broad set of personal claims against the trustee (and potentially against unprotected third-party acquirers) and by the court’s supervisory jurisdiction.

Natural justice and the Court’s supervisory jurisdiction

Abstract The Court’s supervisory jurisdiction over the administration of trusts is a cornerstone of the law and well known to practitioners. However, although there are countless decided cases in which Courts around the common law world have made decisions and exercised powers that have their footing in the supervisory jurisdiction, and the topic is addressed in detail in Daniel Clarry’s excellent “The Supervisory Jurisdiction over Trust Administration”,1 there is surprisingly little consideration in the authorities of the juridical foundation of the jurisdiction and the ways in which the role of the Court differs from that played in ordinary adversarial litigation. One point that has not, until recently, been considered in the decided cases is the extent to which rules of natural justice apply when the Court exercises its supervisory jurisdiction and in particular whether a trustee has a right to be heard prior to being removed. The purpose of this article is to consider this issue and the Court of Appeal of Bermuda’s recent decision in St. John’s Trust Company (PVT) Ltd v Medlands (PTC) Ltd.2

The ECHR in action: its applicability and relevance for arbitration

ABSTRACT Right to fair trial under Article 6.1 of the European Convention on Human Rights has significant bearing on arbitration. Under the jurisprudence of the European Court of Human Rights, an arbitral tribunal is a ‘tribunal’ within the meaning of Article 6.1. The rights recognised by Article 6.1 are subject to partial or full waivers in the context of arbitration, depending on its nature being voluntary or mandatory. To satisfy their Convention obligations, contracting States must exercise effective supervisory jurisdiction in arbitration matters. This may be in conflict with the practice in some contracting States of allowing private parties to contract out the rights to seek the setting aside of arbitral awards or enforce awards that have already been set aside. A survey of all Convention cases between 1955 and 2021 in this regard discloses an overall picture of how the Convention applies to arbitration matters.

The gdpr’s Application and Supervisory Authorities’ Remit on National Parliaments’ Data Processing in Parliamentary Core Activities

Abstract Since the entry into force of the gdpr, national Parliaments within the EU have adopted varying legal opinions on its material scope of application and, inter alia, (national) data protection authorities’ supervisory jurisdiction concerning data processing in parliamentary core areas. This article summarizes the findings of a European Centre for Parliamentary Research and Documentation (ecprd) network survey conducted in early 2021 – that is, after the cjeu’s decision Land Hessen of 9 July 2020, C-272/19. It shows that the judgement had an ambiguous effect on parliaments’ legal viewpoints and briefly points out key issues influencing the minority opinion – amongst them the Austrian Parliament’s position – that parliamentary core activities’ data processing is exempted from the gdpr’s scope of application.

Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.

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.

ITAT’s Power to Grant Stay: Is the Supreme Court Decision in Pepsi Foods the Last Word?

In India, In the current hierarchy of tax litigation, the disputes are addressed at the first level by a tax officer, the appeal against which is determined by another tax officer, albeit a senior one. The second appeal lies before a quasi-judicial tribunal, against whose orders further appeals lie only on substantial question of law before the High Court and the Supreme Court. Viewed from this perspective the tribunal occupies an important space in the tax litigation sphere for multiple reasons. Foremost of these is the fact that the tribunal is the first intrinsically independent forum which examines the correctness of the views and positions taken by the tax officers. Second, the tribunal is the last fact-finding authority and its factual determinations are binding even on the High Court and Supreme Court unless they are perverse. Third, while the instructions of the tax administration are binding on the tax officers, their rigours are inapplicable to the tribunal, thereby the tribunal is free to take an independent view dehors the tax administration’s understanding of the law. For these reasons, the positioning and empowerment of the tax tribunal becomes extremely crucial. A case to the point is the vexed question relating to the power of the Income Tax Appellate Tribunal (‘ITAT’) to grant stay against recovery of demands confirmed by the tax officers. This article examines a recent decision of the Indian Supreme Court, in Pepsi Foods, which addresses the change in the legislative scheme diminishing the empowerment of the ITAT to grant stay. On a larger perspective, this decision favours an approach whereby the taxpayers have effective remedies against the enforcement powers of the tax officers and thereby underscores the need for ensuring an empowered tax tribunal which can effectively maintain supervisory jurisdiction over the functioning of the tax authorities.

Reviewing the Speaker's Decision: A Brief Synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)

In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future.
 This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA.
 The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine.

Invoking the Supervisory Jurisdiction of the Supreme Court of Ghana. The Case of a Meddlesome Interloper (Busybody)

The Ghanaian courts have allowed the efflorescence of legal doctrines as necessary nutrients for the enjoyment and development of rights and obligations under the law within the Ghanaian jurisdiction. One such procedural doctrine is LOCUS STANDI or capacity of a party to invoke the supervisory jurisdiction of the Supreme Court of Ghana. This allows the Supreme Court to exercise constitutional oversight responsibility over the actions of all other courts in Ghana. This power emanates from Article 132 of the 1992 Constitution of the Republic of Ghana. The aim of this research is to unravel the inconsistency with which the Supreme Court of Ghana deals with who has the capacity under Article 132 to access the Supervisory Jurisdiction of the Supreme Court of Ghana under Constitutional regime. This paper was developed through qualitative review of various literatures and relevant modern case law to the subject.

Stress and Coping Mechanism of Punong Barangays: Basis for an Intervention Plan

Stress and its management would be of special significance to an individual. This study determined the dominant sources of stress and coping mechanisms among the Punong Barangays from the City of Cagayan de Oro and the Province of Misamis Oriental using descriptive survey method. The study also made use of descriptive statistics; mean, standard deviation, frequency, percentage and percentage distribution on all variables, dependent and independent. Pearson correlation coefficient was used to test correlation between respondent’s profile, coping mechanisms, and sources of stress. Regression analysis was used to measure the extent of stress influence. The study found out that respondents manifested some level of stress in fulfilling their roles, duties and responsibilities. The study concludes that dominant sources of stress among the respondents are work-related, familyrelated, and personal-related. It is recommended that Local Chief Executives - City and Municipal mayors - as well as Local Government Operations Officers of the Department of the Interior and Local Government assigned in each local government unit and exercising supervisory jurisdiction over Punong Barangays should develop an informed and conceptualized model of stress coping mechanisms. An intervention plan is designed based on the findings of the study.

The Supervisory Jurisdiction of the Alberta Utilities Commission Over Municipally Owned Utilities

The primary approach in Alberta has been that the distribution of utility services delivered by investor-owned utilities are subject to full economic regulation by the Alberta Utilities Commission, whereas if public utility services are delivered by municipalities it has been recognized that the services should be principally regulated by the municipal council rather than the Commission. Affording the municipal council, or its equivalent, regulatory jurisdiction over municipally owned utilities involves a more politically responsive form of regulation. The role of the Commission in this context is limited. The Commission has exercised narrow jurisdiction to ensure that rates established for municipally owned utilities are internally and externally consistent, and to ensure that such rates are not unreasonably discriminatory.

Evolution and Exercise of the Power of Judicial Review of Executive Actions in Pakistan

In the modern democracies the protection of fundamental rights has gained immense importance. The fundamental rights are guaranteed by the constitutions of democratic states. The courts are empowered through the power of judicial review to protect fundamental rights against any violations of these. The concept of judicial review of executive actions emerged from the concept that the powerful executive can jeopardize the rights of the people for their political interests and there should be an independent forum to check the abuses of the human rights by the executive. In the modern era the power of judicial review has proceeded one step further as, in addition to the violation of fundamental rights, it has started examining the issues of good governance and disputes between state organs. Pakistan inherited the idea of judicial review of executive actions from the supervisory jurisdiction of English Courts to issue prerogative writs. Subsequently, Pakistan specifically incorporated the judicial review powers in the 1962 Constitution. The provincial high courts and the Supreme Court are entrusted with the power of judicial review; however, the Supreme Court can adjudicate upon matters of fundamental rights if they involve public importance. This research work examines the importance of judicial review of executive actions for the protections of fundamental rights. Then the evolution and exercise of judicial review of executive actions by the higher courts in Pakistan is analysed. This study finds that the superior courts in Pakistan have actively used this power to protect fundamental rights but in their drive to protect fundamental rights sometimes they have encroached into the jurisdiction of the other state institutions.