Fabien Gelinas

The Dual Rationale of Judicial Independence

>The idea that democracy and human rights are best safeguarded by judicial review of legislation under Constitutional instruments has now become dominant in Constitutional discourse.

Arbitration as transnational governance by contract

ABSTRACT This article argues that arbitrations status as a form of adjudication is a source of legitimacy for an arbitrators exercise of power. This view entails an understanding of arbitration as a form of governance capable of bringing a measure of the rule of law to the transnational space. This article rejects traditional theories that emphasise party consent as the sole source of legitimacy in arbitration, one notable example of which is the ‘law market’ theory. While consent is an important source of legitimacy, theories of legitimacy based solely on consent fail to reflect two realities demonstrated by empirical evidence. First, default rules shaped by a variety of public and private actors other than the parties usually govern arbitral proceedings. Second, arbitrators consider the decisions of their peers in similar cases and thus meet, in a general sense, the burden of rationality associated with legitimacy in adjudication.

Interpretation and Application of the New York Convention in Canada

Canada’s adoption of the New York Convention was part of a coordinated federal-provincial effort to modernize arbitration law throughout the country. What has emerged is that, in general, Canadian courts adhere to the pro-enforcement ethos of the Convention. As such, courts have kept grounds for refusal of enforcement, particularly in respect of public policy and arbitrability, tightly regimented. Further, courts have assumed a residual discretion to recognize and enforce awards even in the presence of an established ground for refusal. The principal problems relating to implementation of the Convention have been the determination of an appropriate standard of review at the referral stage, the determination of the time limitation for seeking enforcement of a foreign award, and the identification of the appropriate interpretive standard to determine subject-matter arbitrability. However as detailed below, the Supreme Court of Canada has, in part, resolved these difficulties.

Ethics in International Arbitration, by Catherine A. Rogers

Ethics in International Arbitration , by Catherine A. Rogers, Oxford University Press, 2014, Paperback, ISBN 9780198713203 (386 pp). The last few years have seen international arbitration stakeholders taking a considerably increased interest in ethics. Leading figures have expressed concern about the state of ethical regulation in the arbitral process and its potential impact on the perceived legitimacy of the system to both insiders and outsiders. From the early work of Jan Paulsson in the 1990s1 to the recent keynote address of Sundaresh Menon at an International Council for Commercial Arbitration (ICCA) Congress,2 dozens of contributions have assessed the main actors, hotspots, and ways forward associated with ethics in international arbitration.3 The absence of a book-length treatment of this topic had begun to seem like a gap in the scholarship. This is the gap that Professor Catherine A. Rogers fills with Ethics in International Arbitration , and she does this beautifully. A well-known scholar of professional ethics and international arbitration, Professor Rogers builds on her previous insightful scholarship4 to answer contemporary questions about the ethical duties and professional conduct of participants in the arbitral system. Her general thesis is that international arbitration should be self-regulated, that is, that stakeholders should play a primary role in the ethical regulation of the system. Her book is arranged in two parts. The first part (Chapters 1–5) offers a detailed review of ethical issues arising in the system, particularly for arbitrators, counsel, experts, and third-party funders. The second part (Chapters 6–10) sets forth a theoretical framework based on self-regulation and the ‘functional theory’, which is utilized to develop a potential regulatory regime for ethics in international arbitration. The 10 chapters of the book have different objectives, which are for the most part very effectively met. In Chapters 1, 6, and 10, Professor Rogers takes on the role of a sociologist of the (international) legal profession. In the opening chapter, … fabien.gelinas{at}mcgill.ca

The Need to Reform Civil Justice

Systems of civil justice comprise both rules of civil procedure and the organization of the court system. These rules, in addition to determining how cases get to and move through the courts, serve the broader purpose of ensuring the fair resolution of disputes in an efficient manner and providing for judicial intervention and creativity where appropriate. Beyond mere dispute resolution, civil procedure offers a means of balancing incentives and disincentives to litigation. If litigation is too costly or too complex to practise, then access to justice is compromised. Conversely, if litigation is too cheap or too accessible, the court system may be overburdened, and the costs of the administration of justice will rise.

A New Research Framework

In this final chapter, we propose that further research on civil procedure should focus on the question of which values a civil justice system should be designed to further, in addition to practical proposals to improve the administration of justice. We wish to stress that focusing solely on efficiency measures in order to save resources leaves the issue of which values to promote untouched and results in a favouring of the status quo. Advocating a more efficient justice system does not help answer the question of how the justice system is to be organized. In other words, efficiency for the sake of freeing up resources should be instrumental to other ends, which need to be researched and identified, rather than an end in and of itself.

Judicial Architecture and Rituals

Efficiency lies at the heart of judicial reform in a time when public institutions face a situation of shrinking resources and when “managerial thinking” about justice is prioritized. The public is told that judicial systems need to undergo structural reforms in order to make dispute resolution more efficient. From this perspective, a concern for judicial rituals may appear anachronistic. A decision to adopt more efficient judicial structures would necessarily require a reduction in the use of judicial rituals, which can be time-consuming and expensive. But, before making the decision to discard judicial rituals in favour of efficiency, we need to ask two important questions. First, can disputes be resolved without judicial ritual? Second, would a de-ritualized dispute resolution process result in a loss of legitimacy for the entire judicial system?

Converging Adversarial and Inquisitorial Traditions

Another issue affecting access to justice reform is the categorization of civil justice into one of two systems: adversarial systems, typically associated with common law jurisdictions, and inquisitorial systems, typically associated with civilian jurisdictions. These systems tend to favour different procedural arrangements. The adversarial system allows for greater party participation and control over the proceedings, while the judge has more power in the inquisitorial system. A desire to retain these distinctions is one factor hindering effective civil justice reform, and it is important that access to justice proponents avoid essentialism when distinguishing these two forms of civil justice. Indeed, the actual distinctions between the two systems are slowly eroding, and advocates of reform in each system could benefit from looking at what is working, or not working, in the other.

The Challenges of Participatory Justice for Public Adjudication

Another important theme to consider in civil justice is the convergence of a number of phenomena identified in civil procedure: the move toward alternative dispute resolution (ADR), the preference for settlement, the shifting of the role of the judge toward managerial judging, and the shifting of the role of lawyers toward conflict resolution advocacy. These phenomena all point to a discernible move away from justice by adjudication toward “participatory” justice, as well as a move away from public justice toward more private forms of justice. By private forms of justice, we mean both dispute resolution mechanisms that intervene only between parties without binding effect on third parties, as well as the rise of legal norms produced by private entities, which opposes the historically constructed idea that the State has a monopoly over legal norms and that legal norms are those which have been produced in a public forum. We offer an overview of some of the arguments put forward to justify and challenge these changes in dispute resolution processes, the role of judicial actors, and that of the State in the administration of justice. We also try to identify the values that may underlie these shifts.

Judicial Independence in Canada: A Critical Overview

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly due to a federal structure having been superimposed onto pre-existing constitutional arrangements, the fundamentals of which are largely unwritten.