Category Archives: 2

Judicial Independence: The Judge as a Third Party to the Dispute

by Lorne Neudorf*

(2015) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

In this article, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the role of the judge in resolving legal disputes. The inquiry reveals a tradition of adjudicative impartiality that stretches back to the legal system of ancient Egypt. While all judges strive to maintain the status of a third party to the dispute, the historical development of an adjudicative tradition in Egypt resulted in a path-dependent conception of the judicial role that influences present understandings of judges, most prominently seen in the continuing use of the scales of justice hieroglyph. Given its significance to the resolution of disputes, judicial impartiality is the unifying theme in the theory of law advanced by Hobbes, who was keenly aware of the Egyptian practice. According to Hobbes, in the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, individuals must give up the right to decide their own disputes. When individuals no longer act as their own judges, a third party must be called upon to resolve conflict. This decision-maker must maintain third party status by avoiding close connections with the parties or the issue in dispute in order to maintain legitimacy. Given this understanding, the author proposes the perception of impartiality as the rationale of an independent judiciary. Judicial independence seeks to preserve the status of the judge as a third party to the dispute by creating the necessary space between judges and actual and potential sources of improper influences. Because the definition of improper influence is determined by individuals from the community, the principle of judicial independence is significantly context-dependent. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.

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New Packaging for Left-Over Big Data: “Identity Proofing” and “Equality Monitoring”

by Orlan Lee*

(2014) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

“Identity Proofing” is a commercial database search product recently adopted by the US Department of Homeland Security (DHS), other government agencies, and commercial entities, paradoxically, to verify the identity of the holder of identity documents. Clearly, in the security world, tracking has greater appeal than hard copy credentials. No matter the photo IDs and documents with embossed seals, the system relies on confirming our knowledge of database entries: present and former home addresses, present and former employers, details of financial credit experience, names of personal associates, and what the latter say about the person the system has their eye on. If, when “quizzed” about these things, your answers match the contents of your file, you may convince the inquiring IdP client that you are the rightful holder of your ID docs. Without a warrant, even the police could not seize all your personal information in the United States. Of course, nothing can stop you from consenting to provide it. Presumably, you have also consented, sometime, somewhere, for all this to be already available in a commercial file.

Rarely do we see an industry leader—here a developer of prime “identity proofing” products—also admit that a hidden weakness may lie anywhere along the chain of data collection, entry, search, recovery, or solutions application:

Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. This product or service aggregates and reports data as provided by the public records and commercially available data sources, and is not the source of the data, nor is it a compilation of the data. Before relying on any data, it should be independently verified.1

The UK Equality Act signifies real advances toward the “Aim of Equality”. Whether or not reliable or useful statistics emerge from the “Duty to Monitor”, British HR practice now outdoes the Americans in their intrusive personal data tracking.

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Economics of Legal Concepts for Management Compensation Schemes in the Credit Sector and of their Regulation – A Critical Contribution to the European Regulatory Discussion

by Christian Kirchner* and David Ehmke

(2013) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

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The Mutable and Evolving Concept of ‘Consent’ in International Arbitration – Comparing rules, laws, treaties and types of arbitration for a better understanding of the concept of ‘Consent’

Andrea Marco Steingruber*

(2012) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

Consent is considered the cornerstone of international arbitration. Yet in the last few years there has been an increasing discomfort with this deep-rooted assumption, with a discussion emerging. Scholars have spoken of the ‘dogma of consent’ or the ‘marginalization’ of it. The main reason for this is that arbitration has evolved and expanded. Multiparty situations involving complex jurisdictional issues are now quite common, and investment arbitration has experienced an exponential growth the last two decades. The article suggests that the consensual nature of arbitration should be looked at from different perspectives. These different perspectives should highlight that the consensual nature of international arbitration is a complex phenomenon and that the qualification of arbitration as a ‘consensual’ dispute resolution mechanism needs to be differentiated and reconciled with the jurisdictional side of arbitration.

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Draft for a First Chapter (Subject Matter, Application and Scope) of an Optional European Contract Law

European Research Group on Existing EC Private Law (Acquis Group)

Prepared by Gerhard Dannemann

(2011) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article this article

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Judicial Review of the Prosecutorial Powers of the Attorney-General in England and Wales and Nigeria: an Imperative of the Rule of Law

Osita Mba*

(2010) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

The pre-eminent position of the Attorney-General under the common law as the chief law officer of the State, generally as chief legal adviser to the State and specifically in all court proceedings to which the State is a party, is a common feature of the Constitutions of the Commonwealth countries. In many jurisdictions, including Nigeria, the Constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosecutions. However, despite this statutory basis the courts traditionally bestow the powers with the orthodox common law immunity from judicial review of the prerogative powers. This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law and argues that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review. It further argues that the orthodoxy should not apply to statutory prosecutorial powers including the power to stop prosecutions in order to safeguard national security set out in the new Protocol between the Attorney-General and the Prosecuting Departments. The second part analyses the relevant provisions of successive Nigerian Constitutions to show that the orthodoxy has never been imported into post-Independence Nigerian law. It uses judicial interpretation of similar provisions in the Constitutions of other Commonwealth countries to establish the error in the Supreme Court’s decision in The State v Ilori [1983] 1 SCNLR 94 by which the orthodoxy was transplanted into Nigerian law. The third part applies the established grounds for judicial review to the exercise of the respective Attorney-General’s prosecutorial powers to give effect to the rule of law in both jurisdictions. The article concludes that judicial review will restore the right to private prosecution as a necessary safeguard against executive excesses and incompetence in both jurisdictions. Although the article deals specifically with English and Nigerian laws, the principles it sets out are applicable to other Commonwealth jurisdictions where the Attorneys-General or other officers such as the Directors of Public Prosecutions enjoy similar powers.

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The Case for Market for Corporate Control in Korea*

Hwa-Jin Kim**

(2009) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Abstract

This Article offers an assessment of the preliminary evidence that the market for corporate control functions as a disciplinary mechanism for poor corporate governance in Korea. It analyzes SK Corporation’s fight against Sovereign Asset Management, contest for control over the Hyundai Group, KT&G’s fight against Carl Icahn, and LG Group and Carlyle’s proxy contest against Hanaro Telecom, together with relevant laws and regulations. These high-profile cases dramatically exemplified the role of takeovers in the improvement of the corporate governance of Korean companies, and brought about active policy discussions in respect of the market for corporate control and takeover defenses. This Article will also provide a quick overview over the provisions in draft new Korean Commercial Code related to the market for corporate control and takeover defenses, including squeeze-out, poison pills, and dual-class commons. This Article argues that as the increasing exposure of control to the market could eliminate the inefficient controlling shareholder system in Korea, the new Korean Commercial Code should strike a balance between the active market for corporate control and effective takeover defensive tactics for the benefit of all shareholders and the value of the company.

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THE EXPERIENCES OF DENYING CONSTITUTIONAL PROTECTION TO SODOMY LAWS IN THE UNITED STATES, AUSTRALIA AND MALAYSIA: YOU’VE COME A LONG WAY BABY AND YOU STILL HAVE A LONG WAY TO GO!

‘the other refuses to disappear: it subsists, it persists, it is the hard bone on which reason breaks its teeth’1

Alan Berman*

(2008) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article this article

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