Essays On Fairness In The Courtroom

Essays On Fairness In The Courtroom-57
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.Find out more about the Kindle Personal Document Service.Vassilis Tzevelekos, Senior Lecturer in law at the University of Liverpool Law School, provides a timely compilation of thoughtful essays concerning the impact of procedure on the actual and perceived fairness experienced by the parties to disputes in international fora.

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Consequently, serves the twin purposes of providing practical suggestions to lawyers, judges, and arbitrators who may be considering issues of procedural fairness in their specific cases while also opening a dialog on the subject for broader discussion.

is divided into four sections composed of multiple essays.

She then considers the principle of party equality, which she argues is “embedded in traditional inter-State adjudication, as a reflection of the principle of sovereign equality” (p. 123); and it legitimizes the criminal trial process and possibly the legal institution as well (p. 151), and to that end, she explores approaches to victim participation by examining how the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia have incorporated victims into the dispute resolution process.

108), offering examples of the variety of approaches toward achieving part equality taken by international tribunals. Forlati closes on the note that “international courts perceive the paramount importance of procedural fairness,” but she recognizes that implementation of the fair trial model established by national courts may be hindered in international courts by “the sweeping role of the principle of consent” (p. She ultimately concludes that international courts may be able to overcome shortcomings in their ability to provide fair trials “only through a fruitful dialogue between international courts and their ‘constituencies’ as part of the more general effort to promote the rule of law in the international society” (p. The following two chapters turn to the question of equality of arms in dispute resolution.

First, Raymundo Tullio Treves argues that, in civil cases, inequality of resources may impact equality of arms, which requires “(i) that each party be given a reasonable opportunity of presenting its case; and (ii) that one party may not be at a substantial disadvantage vis-à-vis the other” (p. He then posits that inequality of resources may be remedied through the provision of financial assistance funds provided by tribunals and arbitral institutions or the use of third party financing. Masha Fedorova examines how the principle of equality of arms has been applied in international criminal tribunals. James Devaney turns to a different aspect of procedural fairness, examining the role that evidence plays in achieving procedural fairness. Devaney explores the International Court of Justice's use of “experts phantoms” (experts informally consulted by the Court), strongly discouraging it in favor of experts appointed by the Court pursuant to the Court's statute.

Where financial assistance is not available, he posits that courts and tribunals have “a duty … She begins by examining the meaning and application of the concept of equality of arms in a human rights law context, with reference to the European Court of Human Rights. He also advocates against the use of experts as counsel and in favor of additional direction from the Court concerning examination and cross-examination of experts and fact witnesses. Chiara Giorgetti analyzes the techniques of cross-fertilization, focusing on how they are applied to procedural matters in international courts and tribunals. Giorgetti explains “cross-fertilization” as a method by which “international courts routinely reference customary international law, general principles of law and rules developed in other international judicial and arbitral practice” (p. She then examines how international courts and tribunals use this method to support decisions in favor of applying existing standards and, separately, to support decisions to depart from existing standards. Giorgetti argues that not only is cross-fertilization common among international courts and tribunals, but also that their use of it signifies “the initial formation …The first section provides a framework for understanding the historical approach to procedural fairness in different legal traditions.After preparing the reader with that background framework, the second section sets forth what the core standards of procedural fairness are today and examines those standards in criminal and civil contexts.He leaves the reader with a reminder of the critical importance of sound procedure, referring to American jurist Justice Frankfurter's statement that “[t]he history of liberty has largely been the history of observance of procedural safeguards” (p. the right to a hearing); the adjudicatory cluster (e.g.the requirement that courts have written procedural codes); and the resource cluster (e.g. Gabriele Ruscalla, in which he argues that modern European continental procedure traces its roots back to the Roman, Germanic, and Canon law traditions.Expanding that discussion to the international community, they then address various distinctions between procedural fairness in the international legal system, on the one hand, and domestic legal systems, on the other.Ultimately, they close this chapter with the view that, while many procedural instruments of international law share certain similarities, “one universal model is perhaps unlikely” (p. Judge Sir Kenneth Keith offers a unique perspective on the practical aspects of fairness in international civil tribunals.of showing leniency toward the party with scarce resources” (p. With this background, she then examines application of the concept of equality of arms in international criminal tribunals, focusing on the practices in the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court. Fedorova argues that the concept of equality of arms was intended “to enable the accused to actively participate in the criminal process” but has been interpreted by ad hoc tribunals in ways that are “controversial, unprincipled and conceptually unsound” to apply to other procedural participants (p. She concludes that this interpretation “unjustifiably elevates [other procedural participants’] procedural interest to the level of enforceable rights,” hiding “a very real risk of ‘balancing away’ the legitimate interests of the accused,” and she encourages ad hoc tribunals to develop “a more principled approach to determine the relative weight … Finally, he considers whether international tribunals have the power to compel production of evidence and encourages the ICJ to interpret its statute and rules to enable it to compel production of evidence by the parties. of a common international procedural law applicable to a variety of international courts and tribunals which is developing the essential core of procedural fairness” (p. Part Three of the book presents an examination of how procedural fairness is addressed by particular international courts and tribunals.Catherine Gibson addresses the attention that international tribunals are placing on professional ethics in international dispute resolution. Gibson explains that while international courts and tribunals were once an “ethical no man's land,” as counsel was regulated by national law for national practice, certain national laws and international courts and tribunals have begun to regulate counsel's conduct in international proceedings. Gibson then explores three approaches that international instruments have taken to regulate counsel's conduct, concluding that future regulation may lean toward a dualist, minimalist system that will permit international courts and tribunals to regulate the aspects of counsel's conduct that are most central to preserving the fairness and integrity of proceedings before them, and leave national bar authorities and similar entities to regulate other matters. Professor Hugh Thirlway begins Part Three with a chapter about the types of challenges that the International Court of Justice has faced with respect to procedural fairness.The remainder of this review will address each of these four sections in greater depth.Part One lays the foundations for the remainder of this book by defining procedural fairness, or alternatively, identifying its key features.

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