Supervisory Jurisdiction Research Articles

Foundations in Jersey: the supervisory jurisdiction of the Royal Court of Jersey

In a ground-breaking judgment, the Royal Court has given directions to the qualified member of a Jersey foundation, this being the first occasion that the Court had been asked to invoke a supervisory jurisdiction in respect of a Jersey foundation. The Court has analysed the extent of that jurisdiction and has confirmed that its jurisdiction was a live and potentially readily exercisable jurisdiction, when appropriately invoked. The Court accepted, on the facts of this case, that its jurisdiction had been properly invoked and that the qualified member was entitled to seek the assistance and the protection of the Court.

An Elegant Convergence? The Constitutional Entrenchment of ‘Jurisdictional Error’ Review in Australia

In 2010 the Australian High Court overturned a state health and safety prosecution by means of a constitutional law advance not seen since the free speech cases and the Kable decision of the mid 1990s. Pursuant to this decision, Kirk v Industrial Court (NSW), the core supervisory jurisdiction of the Australian state Supreme Courts (over jurisdictional error) is now constitutionally protected against legislative ouster. In the ensuing rush of interest in this constitutional extension, the role and readiness of the other partner to the emerging public law collaboration—administrative law and its notoriously unsteady notion of 'jurisdictional error' has been somewhat neglected. This article attempts to draw together the threads of the constitutional development behind Kirk, and then proceeds to reassess the increasingly pivotal notion of jurisdictional error. It examines the High Court's recent forays into this administrative law conundrum, attempts to re-phrase the problem as a tension between 'internal' and 'external' approaches, and seeks to construct a solution.

The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review

The High Court has held that the Constitution entrenches a 'minimum provision of judicial review'. In the context of privative clauses, the contours of that minimum provision are settled - the supervisory jurisdiction of the High Court and the State Supreme Courts to review for jurisdictional error cannot be excluded. In respect of privative clauses contained in Commonwealth legislation, conflict with s 75(v) of the Constitution provides the constitutional anchor for the minimum provision, while in State jurisdiction the textual anchor is found in the constitutional definition of a 'court', as that term is used in Ch III. In respect of other elements of judicial review, particularly the substantive principles of review, the position is radically unclear. One commentator has observed that, if the Constitution does contain principles prohibiting the exclusion of the substantive principles of judicial review, 'it is not obvious where they lie or what the justification for them might be.'

Federal Constitutional Influences on State Judicial Review

Since the late 1990s it has become increasingly clear that the Commonwealth Constitution is the dominant influence upon judicial review of administrative action in Australia. The Constitution provides for a minimum entrenched provision of judicial review by recognising and protecting the supervisory jurisdiction of the High Court. This protection comes at a price because the separation of powers doctrine and the division and allocation of functions it fosters impose many limits upon the reach and content of judicial review of administrative action. This protective and restrictive effect of the separation of powers upon judicial review of administrative action arguably reflects a wider tension in the separation of powers, in which the powers and limits of each arm of government are balanced in a wider sense.

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

National Courts and International Arbitration: A Double-edged Sword?

International arbitrations play a key role in resolving cross border commercial disputes. Parties choose international arbitration primarily because it enables the parties to have their disputes adjudicated without any involvement of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct of international arbitrations and to ensure that the arbitral process meets the due standards of fairness. However, in recent times, the involvement of national courts in aid of effective arbitrations seems to be a growing concern since their involvement tends to hinder the arbitral process rather than protecting the same. In many cases, it can be seen that the supervisory and curial powers are being misused by national courts, the victims of which are parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in detail the problems arising out of the national court’s role in international arbitrations and highlights few of the leading cases where the national court’s involvement has adversely affected international arbitrations. It also notes the possible dangers associated with undue interferences by national courts which may give rise to state liability under international law. In this connection, the recent landmark decision of Saipem v. Bangladesh is analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international arbitrations to exercise their powers cautiously.

Pettyfoggers, Regulation, and Local Courts in Early Modern Scotland

Scotland has long had local legal societies attached to inferior and local courts. These societies mirror the Faculty of Advocates and the Society of Writers to the Signet which sought to protect the interests of members of the College of Justice in Edinburgh. Local or ‘country’ procurators, for their own protection, sought to control admission to their societies ostensibly to ensure adequate standards but also, at least in some places, to discourage or prevent unfettered competition. Ethical standards amongst members of local bars were enforceable by the inferior judges and local procurators-fiscal. Ultimately, such enforcement was a matter for the supervisory jurisdiction of the central court and a number of instances demonstrate this jurisdiction in action particularly in the eighteenth century. Further general regulation, emanating from parliament, was much slower in coming and did not emerge until the nineteenth century a uniform structure and common qualifications began to be imposed. The aim of this article is to investigate the character and concerns of some of these local societies in the early modern period and to outline the process by which they became subject to central regulation.

Spectres of Coke: Judicial Supervision as a Revolutionary Inheritance

Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law, but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature, which requires of the courts to rethink fundamentally the way in which they exercise their supervisory function.

Limitation Period for the Enforcement of Arbitral Awards in Nigeria

THE HIGH point of arbitration is the performance of the award by the losing party. So many texts have confirmed that arbitral awards are largely honoured. The statistics are simply not available as yet in Nigeria to ascertain if this is also the case in this jurisdiction. However, from what is seen in the law reports, arbitral awards are constantly challenged and resisted. Arbitration occupies a unique position as a private settlement mechanism in that it is regulated by statute; hence its often referred to hybrid nature. In this regard, the same enforcement mechanism that is available for judgments, the end result of civil proceedings, is equally accorded to arbitral awards as awards are enforced through the supervisory jurisdiction of national courts. Awards are generally enforceable in two ways. As an instrument emanating from a contract (an arbitral agreement), the failure to perform the award legally constitutes a breach of that contract and the winning party could file a legal action in court seeking specific performance of the award and/or damages for such breach. This route is, however, very unattractive in practice: the parties did not go to the trouble of signing an arbitration agreement obviously to avoid litigation, only to become embroiled in it on account of enforcing the award. The other approach is to enforce the award directly in court. This process is summary and made possible through statutory provision.1 The summary process is, however, only utilised after certain conditions are satisfied. While this varies depending on the jurisdiction, typically, statutes prescribe that awards be filed, deposited or registered in court, or with designated authorities, while in others what is required is the leave of court.2 This article takes a look at the steps that are imposed by Nigerian statutes for summary enforcement of arbitral awards …

Réforme des tribunaux administratifs et contrôle judiciaire: les inconsistances et les hésitations du Rapport Ouellette

Are privative clauses useless in contemporaneous Administrative Law ? That is what the Report of Groupe de travail sur les tribunaux administratifs presided by professor Yves Ouellette appears to assume when it recommends their abolishment to Quebec legislators. Privative clauses are statutory protection given to administrative tribunals against any judicial interference, except in the cases of want or excess of juridiction. Since the Alliance case in 1953 it has been held that superior courts cannot be deprived of their supervisory jurisdiction on jurisdictional errors of law or fact ; a full privative clause would even be unconstitutional since Crevier in 1982. More recently, in New Brunswick Liquor Corporation and in Control Data, the Supreme Court specified that jurisdictional control extends to pattently unreasonable intrajurisdictional errors of law or fact. Nevertheless, the Superior Court cannot get involved in the review of any other question of law or fact in the presence of a privative clause. That is the very reason of the enactment of such a clause as the Supreme Court recalls in Control Data. Otherwise the control of the Superior Court extends to all aspects of legality. The Ouellette Report favours on the one hand, the autonomy of Administrative Tribunals; and on the other, it recommends a more extensive control by the Courts... Not easy to reconcile !

Le rôle du contrôle juridictionnel comme technique de participation

The use of the « costs-advantages balance » theory by the French Administrative Courts would appear to give them a far-reaching supervisory jurisdiction over administrative decisions. However, precedents concerning environmental consequences of proposed nuclear plants show that the Courts are ill-equipped to deal with such cases and apply the « costs-advantages » theory. Therefore, they are reticent to annul administrative decisions as ill-founded or unreasonable. The concept of abuse of power is also of little help since it is almost impossible for the Courts to substitute their own findings to the Administration's as to the public necessity of a project. In conclusion, the Administrative Court is not an appropriate forum and the system may only gives false hopes to ecologists and others who pursue changes in government energy orientations and decisions.

Time Limitations on Applications for Judicial Review

In most Australian jurisdictions there are limitations on the time within which proceedings for judicial review of governmental acts (or for particular remedies) are to be commenced. Some such limitations are imposed by statute, some by rules of court. In some cases the relevant court of supervisory jurisdiction is authorised to extend the time. But in other cases there is no discretion to extend the time. This article examines the justifications which have been offered for imposition by legislation of limits on the time within which applications for judicial review are to be made. It surveys Australian legislation on the subject and examines the legal effects of such legislation. The article also considers reasons why it may be thought desirable to give courts authority to extend prescribed time limits and the associated question of whether exercise of that authority should be regulated by legislative standards. The article also examines the factors which the Federal Court has considered relevant in the exercise of its discretionary power to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), a section which is substantially reproduced in s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 26 of the Judicial Review Act 1991 (Qld) and s 23 of the Judicial Review Act 2000 (Tas).1

Grootboom and Reassessing: Beyond the Socioeconomic Jurisprudence of the South African Constitutional Court

This article reviews the emergent socio-economic jurisprudence of the South African Constitutional Court, focusing particularly on the seminal case of Grootboom. Th e first part disputes a particularly prevalent characterisation of the Court’s approach – namely, that it constitutes an administrative law approach the adjudication of socioeconomic rights – and suggests, instead, that Grootboom, TAC and Khosa might be more profitably read as ensuring that vulnerable sectors of society are not neglected, or overlooked. Grootboom is also, it is argued, best understood as establishing a relationship of collaboration between the state and judiciary, in terms of which each branchof government brings its particular skills to bear on the problem of remedying such omissions. Thereafter, the most prevalent criticism of the Court’s approach – its failure to embrace the minimum core – is considered. Despite the apparent advantages of the minimum core, and the fact that not all of the Court’s objections are entirely convincing, the article concludes that the Court is indeed correct to be wary of this idea. In particular, it emphasises that discussions of the minimum core tend to overlook the complicated relationship between core and non-core needs, and the difficulty of balancing these against one another. Finally, it is argued that, although the approach taken by the Court is, by and large, sound, supervisory jurisdiction is, in certain cases, essential if that approach is to achieve its full effect, and should be regarded as furthering the collaborative approach that Grootboom establishes.

Limits to Supervisory Jurisdiction of the High Court

Limits to Supervisory Jurisdiction of the High Court

“Autonomic judicial review”: powers in search of identity and assertion

In English law, since 1977 at least, the term “application for judicial review” has come to refer to the special method of applying for public law remedies in the supervisory jurisdiction of the High Court over inferior courts and administrative bodies or authorities. Moreover, die fine expositions flowing from that jurisdiction—comprising judicial decisions, dicta and learned writings alike—have tended to sound at points as if “judicial review” might be more or less coterminous with “supervisory review”. A useful introduction to the subject, ostensibly setting out “to examine the various different review jurisdictions vested in die English courts”, however, ends up acknowledging and treating only the appellate and supervisory jurisdictions.

The Law and Practice Relating to Appeals from Arbitration Awards by Prof. D. Rhidian Thomas

Professor Thomas's major new work, The Law and Practice Relating to Appeals from Arbitration Awards, is concerned with the way in which English law currently deals with one of the central questions in arbitration law – namely, how to balance the competing demands of legality and finality. Unless the parties expressly authorize the arbitral tribunal to determine their dispute by reference to non-legal standards, the parties are entitled to expect that the award should be based on the applicable legal rules; it is equally true, however, that parties who agree to refer their disputes to arbitration hope that their chosen dispute-resolution mechanism will produce a speedy and final decision. English law has traditionally favoured legality over finality. Although the arbitrator has the final word on questions of fact, the English courts have for centuries exercised supervisory jurisdiction on questions of law. The rules relating to appeals from awards –...

LITIGATION UPDATE

‘WHO REGULATES THE REGULATORS?’ This is a question well worth posing, and one answer to it is: the High Court in the exercise of its supervisory jurisdiction of judicial review. An example of its exercise over the SIB will be seen now that the High Court has given leave to the IFA association and LIBM Ltd (a firm of professional indemnity insurers) to apply for a judicial review of the SIB pension transfer compensation guidelines. The applicants' legal arguments are that:

Judicial review and immigration policy: emerging trends

Some recent attitudes to the scope of judicial review in the field of immigration policy represent a sharp contrast with the trends which typify the current renaissance in administrative law. The conspicuous features of modern developments are the range and intensity ofjudicial initiatives in expanding, almost beyond recognition, the parameters within which the exercise of supervisory jurisdiction is warranted in principle. Despite some suggestions to the contrary, it is not altogether satisfactory to regard the revamped notion oferror oflaw as an organising principle which supplants review mechanisms founded on the bedrock of vires; but it is quite evident that the theory of jurisdiction which lies at the root of seminal concepts sustaining the framework of judicial review is in the process of being transformed by contemporary ap roaches. The virtual equation of error of law with jurisdictional excess at any rate in regard to administrative tribunals as distinguished from inferior courts, has dramatically enlarged the scope of judicial review on the ground of jurisdictional fault, especially in the light of radical perceptions of the criteria which are called in aid to identify errors of law.

The Administrative Appeals Tribunal of Australia: the first decade

A legislative package which transformed the landscape of Australian administrative law during the last decade by invigorating prosaic models of judicial review, has attracted attention throughout the Commonwealth as ‘an awesome leap’. A burgeoning bureaucracy, whose commitment to legal norms is all too often diluted by excessive zeal in the pursuit of administrative goals, and the perceived inadequacy of conventional restraints including legislative scrutiny, the supervisory jurisdiction of regular courts and internal checks operating at different levels of the executive hierarchy, have heralded bold, innovative approaches.

Recent Canadian legislation on arbitration

Canada finally has come into the 20th century, and may be crowding the 21st. International commercial arbitration has arrived. Until this year, arbitration in common law provinces was regulated by legislation based on the English Arbitration Act of 1889 and, in Quebec, although a new Code of Civil Procedure was enacted in 1966, its provisions on arbitration left much to be desired. In the common law provinces, the courts continued to exercise their overriding supervisory jurisdiction by both the stated case procedure and the readiness of judges to intervene with respect to errors of law. As for Quebec, it was not until 1983 that the controversy over the validity of the agreement to arbitrate under Quebec law was finally resolved by the Supreme Court of Canada.1 Of the significant industrialised countries, Canada with China, has been alone in failing to adhere to the 1958 United Nations Convention on the...