Essays On Fairness In The Courtroom

Essays On Fairness In The Courtroom-45
The international legal community has a vested interest in exploring these questions for multiple reasons: not only is procedural fairness a potential basis for argument in any given case, but it is also a critical underpinning of the continued survival and growth of the international dispute resolution system.This collection of essays on procedural fairness offers views of value to practitioners and academics alike because it touches on a variety of topics in different types of fora and contexts, including both criminal and civil proceedings in international and regional courts as well as private commercial arbitration and investor-state arbitration.The first section provides a framework for understanding the historical approach to procedural fairness in different legal traditions.

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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.

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Arman Sarvarian, Lecturer in law at the University of Surrey School of Law, Dr.

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.

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.

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.

Given the proliferation of international courts and tribunals and the growing demand for their services in a wide variety of international disputes, questions of procedural fairness are increasingly significant and gaining prominence in international practice.


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