the right to a cost-effective process in a reasonable time). Sorabji then discusses two trends he has identified in common law jurisdictions, namely the decline of “State provision of legal aid for the impecunious” and the use of procedural reform, guided by the proportionality principle, “to increase procedural efficiency while reducing litigation cost” (p. This chapter begins with a historical review of the Roman, Germanic, and Romano-Canonical legal traditions and then provides evidence that the rights to impartial adjudicators, to be heard, and to an appeal date back to those traditions.
Part Two focuses more narrowly on particular principles associated with or forming the body of procedural fairness. Serena Forlati concerning the right to a fair trial in international non-criminal tribunals. Forlati first explores the role that consent plays in international non-criminal adjudication, specifically with respect to the fair trial model, which includes access to courts and enforcement of judgments. Sophie Rigney focuses on fairness in international criminal tribunals. Rigney argues that fairness is critical to trials in international criminal tribunals and offers three potential reasons for fairness: it offers tribunals a tool for interpreting and supplementing the applicable procedural rules or laws; it assists trial chambers to reach conclusions by enabling them to ensure “that evidence is rigorously tested and of high quality” (p. Rigney then contrasts the centrality of fairness with the uncertainty of what constitutes fairness, arguing that different approaches to fairness—namely, whether fairness is owed primarily to the accused or rather to all of the participants in a case—have yielded an incoherent approach to fairness across international criminal tribunals, leaving the questions of “what international criminal law is trying to achieve, and how it will do so …” unanswered (p. In the following chapter, Laura Marschner focuses on the impact that victim participation in disputes before international criminal tribunals has on procedural fairness in criminal cases. Marschner notes the growing emphasis placed on victims’ rights in such proceedings and argues that victim participation need not be a “‘zero-sum game’ where the expansion of rights of victims automatically diminishes those of the accused and, ultimately, procedural fairness” (p. She proposes that the rights of victims may be balanced with those of the accused (p.
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.
Professor Thirlway categorizes those challenges as impartiality of the bench (addressing both actual and perceived impartiality), fairness as it relates to jurisdiction over the parties or admissibility, fairness as it relates to non-parties to an action, legal and practical fairness (including fairness issues arising from an imbalance of financial support or from an inability to obtain evidence), and fairness in the court's deliberative process.
He concludes that the International Court of Justice and its brethren, such as the International Tribunal for the Law of the Sea and the International Criminal Court are generating a “corpus of law on procedural fairness [that] seems set to develop further through the jurisprudence of all these bodies” (p. In the following chapter, Hugh Meighen and Brooks Daly offer a window into the world of interstate and investor-state arbitration. Meighen and Daly examine the use of bifurcation of proceedings into jurisdictional and substantive phases as an approach to resolving jurisdictional challenges while recognizing the underlying tension between economy of resources and use of dilatory tactics.
Filippo Fontanelli and Paolo Busco author the first chapter of Part One, which they begin by examining the concept of procedural fairness, highlighting that both procedural and substantive fairness are necessary to the perceived legitimacy of a legal regime: “[T]hat justice is ultimately done is not sufficient for the legal order to achieve social legitimacy …
authority and efficiency,” they argue, “justice must also be seen to be done” (p. They then discuss the relationship of procedural fairness and the community in which it is being applied.
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.