Judicial recusal in New Zealand: Looking to procedure as the principled way forward

<p>The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of the events and, more importantly, whether measures need to be taken to prevent another such occurrence. This paper takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the paper's findings, the author revisits the Saxmere saga to first posit that a lack of procedural safeguards may have contributed to the saga and two, to suggest that had the procedural safeguards proposed by this paper been in place, the controversy could have been mitigated, if not avoided.</p>

Judicial recusal in New Zealand: Looking to procedure as the principled way forward

<p>The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of the events and, more importantly, whether measures need to be taken to prevent another such occurrence. This paper takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the paper's findings, the author revisits the Saxmere saga to first posit that a lack of procedural safeguards may have contributed to the saga and two, to suggest that had the procedural safeguards proposed by this paper been in place, the controversy could have been mitigated, if not avoided.</p>

The Commission’s digital services and markets act proposals: First step towards tougher and more directly enforced EU rules?

On 15 December 2020, the European Commission presented its long-anticipated Digital Services and Digital Market Acts proposals. If and when adopted, those proposals would put in place a more stringent regulatory framework ensuring coordinated oversight over the online platform services and digital markets. They would also enhance EU coordinated and direct enforcement in the digital economy, by streamlining the organization and sanctioning powers of national administrative bodies and granting the European Commission far-reaching market supervision and enforcement powers. This legal development article analyses both Acts and calls on the EU legislator to pay sufficient attention to ensuring the feasibility of new regulatory obligations and to foreseeing better procedural safeguards accompanying Commission direct enforcement practices.

Unexplained Wealth Orders and the Right Not To Self-Incriminate

Unexplained Wealth Orders (UWOs) were introduced to facilitate the fight against economic crime. UWOs compel a targeted person to reveal the origin of their assets, if the court suspects the value of the assets to be disproportionate to the person’s known legitimate income. Non- compliance to an UWO results in the presumption that the assets are proceeds of crime and therefore recoverable. The design of this new legal instrument follows an international trend to confiscate criminal assets in rem rather than prosecute criminal conduct in personam. However, such instruments remain controversial. They are intrusive and circumvent procedural safeguards commonly applicable in criminal proceedings. In my paper, I examine if and how UWOs are reconcilable with the right not to self-incriminate. This question is crucial, as UWOs will only serve their purpose if they can withstand likely legal challenges in international courts.

Homelessness and the ‘over-judicialisation’ of welfare

Members of the senior judiciary have expressed concern about the ‘over-judicialisation’ of welfare in the context of homelessness decision-making and adjudication. This paper examines how those fears have been manifested and makes a link with the concept of proportionate dispute resolution (PDR). It argues that the statutory scheme incorporates elements of PDR and judges should therefore refrain from introducing additional layers. The courts’ denial of the application of Article 6 of the European Convention on Human Rights to the homelessness context is disputed, and the paper makes the case for continuing rigorous judicial oversight of front-line decision-making, recommending that attention is focused on assessing procedural safeguards rather than disputing the ambit of Article 6.

Enforcement

This chapter addresses enforcement in international arbitration. The ready enforceability of arbitral awards is the single strongest component of the architecture that undergirds international arbitration. Two conventions are the primary mechanisms ensuring that enforceability: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, colloquially known as the New York Convention; and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, colloquially referred to as the ICSID Convention or the Washington Convention. The regime for enforcement of arbitral awards is based on a structure that prioritizes enforcement so long as awards are rendered pursuant to certain largely procedural safeguards. This approach is an attempt to balance the principle of party autonomy with concern on the part of national courts that they not be co-opted into enforcing awards not consistent with at least rudimentary principles of fair play. Judgment debtors can thus resist enforcement should the arbitration have failed to comport with fundamental notions of due process. In the case of the New York Convention, two other grounds for resisting enforcement have to do with policy considerations in the enforcing state.