Páginas

segunda-feira, 31 de agosto de 2015

Five Models of Administrative Adjudication

Michael Asimow 
Stanford Law School

July 17, 2015

Stanford Public Law Working Paper No. 2632711 

Abstract:    
Regulatory and benefit-distribution schemes give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Such systems generally provide for three phases — initial decision, administrative reconsideration, and judicial review. However, the details of the various systems employed around the world are bewilderingly diverse and different countries tend to invest most of their adjudicatory resources in only one of the three phases (and private parties who have dispute with government tend to have more confidence in one of the phases than in the other two).

This article proposes a methodology for classifying such systems. It identifies four key variables: combined function agencies or separate tribunals, adversarial or inquisitorial procedure, judicial review that is open to introduction of new evidence or closed to new evidence, and judicial review by generalized or specialized courts.

The article identifies five models in common use around the world that involve different combinations of these variables. The United States, for example, uses combined function agencies, adversarial procedure, and closed judicial review in generalist courts. On the other hand, the United Kingdom employs an independent tribunal to reconsider initial agency decisions. And France employs open judicial review in a specialized court. Each of these models can deliver accurate and efficient decisions while preserving fairness.

Finally, the article discusses transplants from one administrative adjudicatory system to another. There are numerous examples of successful transplants. The article suggests that the United States should consider adopting a Social Security tribunal (similar to the tribunals in the United Kingdom and Australia) to replace the present system of adjudication of Social Security disputes.

Number of Pages in PDF File: 30

Keywords: International Administrative Law; Comparative Law

Asimow, Michael. Five Models of Administrative Adjudication (July 17, 2015). Stanford Public Law Working Paper No. 2632711. Disponível em: <http://ssrn.com/abstract=2632711>. Acesso em: 28 ago. 2015.

segunda-feira, 17 de agosto de 2015

The Implications of the Visit of Al Bashir to South Africa for International and Domestic Law

Erika De Wet 

Institute for International and Comparative Law in Africa
August 12, 2015

Abstract:   
The article examines whether the North-Gauteng High Court in South Africa came to the right conclusion, both in terms of the applicable international and domestic law, in its decision of 15 June 2015 concerning Al Bashir. As will be illustrated below, the international law assessment turns on one’s interpretation of the inter-relationship between articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). This analysis will inter alia make reference to the ICC Pre-Trial Chamber II decision of 14 April 2014 against the Democratic Republic of Congo (‘DRC’). The circumstances of that decision were very similar to the one against South Africa. It resulted from a visit by Al-Bashir to the DRC in 2014, in order to attend a meeting of the Common Market for Eastern and Southern Africa (‘COMESA’). The DRC, a state party to the ICC Statute, failed to comply with a request for arrest and surrender of Al Bashir to the ICC. It justified its position by relying on the AU decision not to surrender any sitting head of state to the ICC. The national law assessment turns on the status of the Implementation Act and the host-state agreement in the domestic legal order, as well as the requirement in section 233 of the Constitution of the Republic of South Africa, 1996 (‘Constitution’) that domestic law has to be interpreted in an accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.
Number of Pages in PDF File: 24

Keywords: United Nations Security Council, International Criminal Court, immunity, jurisdiction

DE WET, Erika. The Implications of the Visit of Al Bashir to South Africa for International and Domestic Law. Social Science Research Network, August 12, 2015. Disponível em: <http://ssrn.com/abstract=2642728>. Acesso em: 17 ago. 2015.