Civil Procedure & Federal Courts Blog

South Africa to Create Special World Cup Courts

The BBC reports that South Africa is creating special courts to deal with crime during the World Cup.  The purpose of the courts is to allow visitors to testify even though they will be in the country for a short time.  The theory is that "fast tracking" crimes committed during the World Cup will act as an extra deterrent.

The 54 courts will operate in the nine World Cup cities and judges, lawyers and volunteers will receive special training.

RJE

Bulto on Judicial Referral of Constitutional Disputes in Ethiopia

Takele Soboka Bulto (Melbourne Law School, The University of Melbourne) has posted "Judicial Referral of Constitutional Disputes in Ethiopia" on SSRN.  It will be published as part of "Constitutionalism and the Rule of Law in Ethiopia: Challenges and Opportunities," the editors of which are Assefa Fiseha and Getachew Assefa.

The abstract states:

The trend of swift and at times unquestioning judicial referral of constitutional disputes to the CCI has seemingly bordered judicial surrender of its proper province of refereeing the possible trespasses and frictions by the legislative and executive branches. The underlying reasons, real or apparent, are many and varied but two deserve an explicit mention here as they lie at the heart of jurisdictional dilemmas surrounding the procedure of judicial referral of constitutional issues to the CCI/HoF. The first is the legal argument arising from the provisions of Article 83(1) of the Constitution, which stipulates that ‘all constitutional disputes’ shall be decided by the HoF. This provision has given rise to the view, in judicial circles and beyond, that courts are relived of the duty to interpret and apply constitutional provisions. Thus it is believed that the constitution is taken away from the courts, and that for the regular judiciary to directly apply and interpret the constitution would tantamount to the courts ‘punching above their heights.’ Consequently, the regular courts have been ‘loathe doing anything which might indicate that they are engaged in constitutional interpretation.’ Another reason for judicial avoidance of constitutional adjudication is related to the judicial tendency to shun cases that involve politically sensitive issues which, more often than not, constitutional disputes tend to trigger. The overall consequence has been that litigants, as much as the courts, have avoided citing constitutional provisions for fear of risking judicial referral of their cases to the CCI/HoF. 

This paper sets out to depict that the constitution speaks with two voices: the main voice remains that of the regular courts while merely the residual powers are ceded to the CCI/HoF procedures. It is argued that judicial referral of constitutional issues is discretionary as opposed to mandatory, and that the procedure of referral pertains solely to questions of law as opposed to questions of fact, the latter being the court’s constitutional duty.

~clf

Judicial reform in France

The Sarkozy government is planning to reform the judiciary in France, eliminating many of the investigative powers of magistrate judges and giving more power to prosecutors.  The AP reports on the proposed changes here, however, the article does not make explicit that these reforms are limited to judges in criminal cases.  Nonetheless, this change would mark a significant change in the role that judges play in one of the world's archetypal civil law systems.

For those of you brave enough to read about the reports en français, Le Monde reports here about the most recent developments.  For an earlier and more pointed commentary (also in French), there is this post in L'Express suggesting that Sarkozy is a latter day Napoleon (in the code sense).

RJE

Supreme Court of Canada limits availability of class actions

The Supreme Court of Canada recently held that a class action was inappropriate in a case challenging a municipal tax assessment.  Commentators are speculating about how much the decision will impact the future availability of class actions in Canada because the court's opinion reasoned that class actions are inappropriate in matters where summary disposition is appropriate. 

James Morton, past president of the Ontario Bar Association, worries that "a whole host of matters which otherwise might fall under class actions may be excluded. The one that really strikes me is small claims court, where many of the cases in class actions are really too small to pursue otherwise but often are not terribly complicated matters. Perhaps the implications of the ruling are broader than the SCC immediately considered.”

The Lawyers Weekly provides a detailed analysis of the case and its potential impact on class actions in Canada here.

~clf

Australian Arbitration Rules

Simon Greenberg, Luke R. Nottage, and Romesh Weeramantry have posted The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited to SSRN.

Abstract:     
A decade ago, leading arbitration institutions and practitioners responded to growing concerns about burgeoning costs and delays in international commercial arbitration ("ICA") partly through some considerable changes to Arbitration Rules. Nowadays, however, disquiet has re-emerged especially about costs. Some point to parallels with civil procedure reforms in various national court systems since the 1990s. Those may have accelerated processes, but front-loading costs does not necessarily reduce them significantly.

Arbitration institutions are again responding to similar concerns about ICA. Some have published new Expedited Arbitration Rules, Mediation Rules, or encouraged renewed debate about more controversial measures to minimise costs such as Arb-Med (arbitrators encouraging settlement). Some institutions (like the ICC) have also instituted new rounds of reforms to their generic Arbitration Rules. Sometimes, Rule changes have followed amendments to arbitration legislation in the relevant jurisdiction (as in Japan). The Australian Centre for International Commercial Arbitration ("ACICA") also unveiled Arbitration Rules in 2005, and then Expedited Arbitration Rules in 2008. All these recent developments are occurring as UNCITRAL proceeds with revisions to its 1976 Arbitration Rules, designed initially for ad hoc arbitrations but influential also among many arbitration institutions.

It is therefore useful for the broader development of ICA to make more widely accessible this updated overview of the 2005 ACICA Arbitration Rules, comparing developments in many major arbitral institutions world-wide. The paper is particularly timely because the ACICA Rules will be used by hundreds of mock arbitrators and advocates in the 17th Vis Moot, to be held in Vienna and Hong Kong around March 2010. This event has become one of the most important in the ICA world, training not only a new generation of arbitration experts but also exposing more established experts to new developments and ideas. Both aspects are essential to the vitality of ICA and its perennial quest for an optimal balance between efficiency and procedural justice.

RJE