scholarly journals The Meaning of Soft Law in International Commercial Arbitration

2016 ◽  
Vol 16 (1) ◽  
pp. 97-109
Author(s):  
Miluše Hrnčiříková
Keyword(s):  
Due Process ◽  
Fair Trial ◽  
Soft Law ◽  
Discretionary Power ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Proceedings ◽  
The Right ◽  
The Impact ◽  
Discretionary Powers

Summary The growth in the amount of international arbitrations, the value of the disputes and expenses invested into the arbitral proceedings have escalated the pressure to succeed in dispute. The arbitrators face to guerrilla tactics or threats of annulment of arbitral awards based on the violation of a right to a due process. Soft law regulating the arbitral procedure endowers the effectives of the arbitration, however, in the recent years the critical voices can be heart which warn against overregulation and its judicialization. On the following pages the impact of the soft rules prescribing the arbitral proceeding on the effectiveness of the international commercial arbitration is examined. Firstly the author deals with the right to a fair trial and the discretionary power of arbitrators in the framework of the notion of soft law and then the binding character of this soft law is determined. The aim of this article is to answer the question whether the regulation of the arbitral proceedings by soft law is still welcomed or if it represents a threat for the discretionary powers of the arbitrator and arbitration as such.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Procedural fairness: Between human rights law and social psychology

2021 ◽  
pp. 092405192199274
Author(s):  
Cathérine Van de Graaf
Keyword(s):  
Human Rights ◽  
Procedural Justice ◽  
Well Being ◽  
Fair Trial ◽  
European Convention ◽  
Public Confidence ◽  
Social Psychological ◽  
Justice Research ◽  
The Right ◽  
The Impact

Fair procedures have long been a topic of great interest for human rights lawyers. Yet, few authors have drawn on research from other disciplines to enrich the discussion. Social psychological procedural justice research has demonstrated in various applications that, besides the final outcome, the manner in which one’s case is handled matters to people as well. Such research has shown the impact of procedural justice on individuals’ well-being, their acceptance of unfavourable decisions, perceptions of legitimacy and public confidence. The ECtHR has confirmed the desirability of these effects in its fair trial jurisprudence. Thus far, it remains unclear to what extent the guarantees offered by Article 6(1) of the European Convention on Human Rights (the right to a fair trial) coincide with the findings of empirical procedural justice research. This article aims to rectify this and uncover similarities between the two disciplines.

scholarly journals Review of Some Procedural Witness Protective Measures at the International Criminal Tribunal for the Former Yugoslavia

2017 ◽  
Vol 13 (34) ◽  
pp. 251
Author(s):  
Romina Beqiri
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Fair Trial ◽  
Former Yugoslavia ◽  
Protective Measures ◽  
Balkan Region ◽  
The Right ◽  
The Impact

Given the spread terror and the abuses perpetrated in the Balkan region, many victims and witnesses of atrocities were deterred from testifying. The International Criminal Tribunal for the former Yugoslavia (ICTY or Tribunal) facilitated the appearance of witnesses and protected them in case of intimidation including by taking measures against those who would violate the confidentiality of the proceedings. This article aims to introduce some of the witness protective measures before the Tribunal, and particularly threats and risks they have faced in the context of the cases dealt with by the Tribunal. It reflects also upon groundbreaking measures of protection decided by the Tribunal and the challenges it has faced over the last two decades. It finally discusses the impact of such challenges on the right to a fair trial and how they were addressed.

7. Due Process, Liberty and Security of the Person, and the Right to a Fair Trial

2016 ◽  
Author(s):  
Steve Foster
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Civil Liberties ◽  
Fair Trial ◽  
Expert Advice ◽  
Police Powers ◽  
Question And Answer ◽  
Questions And Answers ◽  
Bullet Point ◽  
The Right

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts and advice on gaining extra marks. Q&A Human Rights and Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; make your answer stand out from the crowd; and find relevant further reading. This chapter covers due process, liberty, and security of the person, and the right to a fair trial, including articles 5, 6, and 7 of the ECHR and their application to matters such as prison discipline, police powers, and the fight against terrorism.

7. Due Process, Liberty and Security of the Person, and the Right to a Fair Trial

2018 ◽  
Author(s):  
Steve Foster
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Civil Liberties ◽  
Fair Trial ◽  
Expert Advice ◽  
Police Powers ◽  
Question And Answer ◽  
Questions And Answers ◽  
Bullet Point ◽  
The Right

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; make your answer stand out from the crowd. This chapter covers due process, liberty, and security of the person, and the right to a fair trial, including articles 5, 6, and 7 of the ECHR and their application to matters such as prison discipline, police powers, and the fight against terrorism.

Part III Arbitral Rules, 16 Rules of Arbitration of the International Chamber of Commerce (ICC)

2019 ◽  
Author(s):  
Baumann Antje
Keyword(s):  
Dispute Resolution ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Time Limits ◽  
Chamber Of Commerce ◽  
International Court ◽  
Arbitral Proceedings ◽  
Number Of Parties ◽  
International Chamber Of Commerce

This chapter discusses the arbitration rules of the International Chamber of Commerce (ICC). It begins with a background on the ICC International Court of Arbitration, with emphasis on its role in the development of international commercial arbitration. It then examines the 2017 ICC Arbitration Rules, citing some relevant figures related to ICC arbitration for the year 2017, including the number of parties involved in cases, the arbitral tribunals, and awards rendered by arbitral tribunals. Figures on other ICC dispute resolution rules are also given. The chapter concludes with a commentary of Articles 1–42 of the ICC Arbitration Rules, which cover topics such as definitions; time limits for written notifications or communications; request for arbitration and the respondent’s counterclaims to such a request; effect of the arbitration agreement; constitution of the arbitral tribunal; appointment, confirmation, challenge, and replacement of arbitrators; and rules of law applicable to the arbitral proceedings.

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