scholarly journals The constitutionality of default arbitration

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Regulatory Framework ◽  
Public Provision ◽  
The Rule Of Law ◽  
Essential State ◽  
State Functions ◽  
Commercial Disputes

<p>A proposed Bilateral Arbitration Treaty would subject international commercial disputes between enterprises in signatory states’ jurisdictions to arbitration unless the parties agreed to the contrary. This marks a substantial departure from conventional understandings of arbitration as based on the consent of the parties. More importantly, the policy would modify the jurisdiction of the courts, removing a large number of disputes to offshore tribunals subject to minimal judicial oversight. This paper explores the constitutional propriety of such a policy, with particular attention paid to the principles of the separation of powers, the rule of law, public provision of essential State functions, open justice, and democracy. These constitutional principles would be subverted if the policy were to operate within the existing regulatory framework for arbitration. The paper makes recommendations for possible modifications to the policy that would make it a better fit with the constitution.</p>

scholarly journals The constitutionality of default arbitration

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Regulatory Framework ◽  
Public Provision ◽  
The Rule Of Law ◽  
Essential State ◽  
State Functions ◽  
Commercial Disputes

<p>A proposed Bilateral Arbitration Treaty would subject international commercial disputes between enterprises in signatory states’ jurisdictions to arbitration unless the parties agreed to the contrary. This marks a substantial departure from conventional understandings of arbitration as based on the consent of the parties. More importantly, the policy would modify the jurisdiction of the courts, removing a large number of disputes to offshore tribunals subject to minimal judicial oversight. This paper explores the constitutional propriety of such a policy, with particular attention paid to the principles of the separation of powers, the rule of law, public provision of essential State functions, open justice, and democracy. These constitutional principles would be subverted if the policy were to operate within the existing regulatory framework for arbitration. The paper makes recommendations for possible modifications to the policy that would make it a better fit with the constitution.</p>

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

scholarly journals Functions of the state: concepts, classifications, scientific interpretations

1970 ◽  
pp. 406-410
Author(s):  
Marharyta Butsan
Keyword(s):  
Rule Of Law ◽  
Public Life ◽  
The State ◽  
Political Life ◽  
Historical Period ◽  
Legal Form ◽  
The Rule Of Law ◽  
The Government ◽  
Cultural Functions ◽  
State Functions

In the article the concept of state functions, realizing which the state carries out a targeted management impact on various spheres of a public life. They show that the government should do to achieve and implement the goals and tasks that lie before him in a certain historical period. Purposes of the functions of the state are the results that must be obtained in implementing the functions, goals can be immediate, intermediate, ultimate. On one stage of historical development, priority may be given to economic, the other political or socio-cultural functions, the third function of defense, etc. At the beginning of its inception, the state played a very small list of functions. The contents of most of them was of a pronounced class character. The functions manifest national characteristics of the country, because the state is obliged to provide the geopolitical interests of the ethnic group, to support the development of national culture, language, and the like. The contents and the list of functions to a large extent depend on the nature of the state, its social purpose in public life. The main duty of the state to maintain a level of social organization that would ensure not only the preservation of the integrity and prosperity of society as a whole, but also the needs of individuals. The article studies scientific approaches with respect to interpretation of the concept of functions, given the existing classification of state functions: the areas of activities of the state, duration and the like. The analysis of existing functions in Ukraine. The human rights function is currently the most relevant. Advocacy function has the expression in activities that are aimed at protecting the rights and freedoms of man and citizen, the rule of law and the rule of law in all spheres of public and political life. The peculiarities of exercise of the functions of the state are divided into legal and organizational. The legal form is a homogenous activity of state bodies related to the adoption of legal acts. Organizational form is a homogenous activity of the state aimed at creating organizational conditions to ensure functions of the state. In Ukraine there are three main forms of implementation of the activities of the state depending on types of activities: legislative, Executive, judicial. The basis for this separation is the provision of the Constitution of Ukraine, which is highlighted in these branches of government. In the implementation of all main functions of the state are actively involved all types of public power in Ukraine.

scholarly journals Presidential Signing Statements and the Rule of Law as an “Unstructured Institution"

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
Signing Statements ◽  
History Of ◽  
Entire History ◽  
The Government ◽  
Signing Statement

The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called "unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.

Legal technique of normative and contractual legislation

2021 ◽  
pp. 55-64
Author(s):  
Ilya Shutak
Keyword(s):  
Rule Of Law ◽  
Practical Importance ◽  
Theoretical Understanding ◽  
The Rule Of Law ◽  
Functional Methods ◽  
Functional Nature ◽  
Internal Inconsistency ◽  
Law Making ◽  
State Functions

Purpose. The purpose of the study is to reveal the features of the legal technique of normative-contractual law-making of modern Ukraine. Methodology. First of all, the principles and techniques of formal-logical methodology are used. Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral relations in the normative-contractual form of state functions is based on the functional nature of law in general and contractual and regulatory means in particular, which allowed to distinguish two types of intersectoral relations in contractual and regulatory activities. In addition, dialectical, system-structural and functional methods, the method of interpretation (applied to regulations) were used in the work. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of normative-contract law-making, which is interpreted as an integral harmonious part of the law-making system in a state governed by the rule of law. It is shown how with the help of means and methods of legal technique there is an optimization of contractual work and minimization of risks of disputes caused by vagueness and internal inconsistency of contracts. Results. As a result of research the inexpediency of identification of the contract with the regulatory legal act and its inclusion in the system of the legislation is argued. The regulatory role of the contract likens it to a legal act. A normative agreement can be both a consequence of a law and a cause of a normative legal act. Practical importance. The results of the study can be used in law-making activities in order to improve the design of the regulatory agreement, improve its quality and efficiency.

Judicial Independence: Who Cares?

2007 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
England And Wales ◽  
The Rule Of Law ◽  
Recent Developments ◽  
Constitutional Changes

This lecture discusses judicial independence. It notes that the increase in concern over judicial independence was due to recent developments in Scotland, England and Wales. The constitutional changes also led to new relationships between ministers and judges, which in turn has led to governmental declarations to respect the rule of law and judicial independence. The lecture also stresses the importance of considering and re-asserting the principles that justify judicial independence, as well as the underlying concept of separation of powers.

The Rule of Law and the Separation of Powers

2020 ◽  
pp. 63-138
Author(s):  
Helen Fenwick ◽  
Gavin Phillipson ◽  
Alexander Williams
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law

Inherent Jurisdiction and the Limits of Civil Procedure

2020 ◽  
pp. 269-290
Author(s):  
Stuart Sime
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Procedure ◽  
England And Wales ◽  
High Court ◽  
The Rule Of Law ◽  
Procedural Law

This chapter considers the modern scope and limitations on the use of the court’s inherent jurisdiction in common law jurisdictions. It considers the underlying juridical basis for the jurisdiction, and the underlying theories, namely that residuary powers were vested in the High Court in England and Wales by the Judicature Acts, and that all courts have inherent powers to prevent abuse of process. It considers the ramifications of the distinction between inherent jurisdiction and inherent powers. Changes in the legal landscape since the seminal articles by Master Jacob and Professor Dockray, including the codification of civil procedure in many common law jurisdictions, and modern understanding of the rule of law and the separation of powers, are considered. It is argued that while existing applications of the inherent jurisdiction should be retained, it is no longer acceptable for the English High Court, and equivalent courts in other jurisdictions, to generate new procedural law by resorting to the inherent jurisdiction.

Sign in / Sign up

Export Citation Format

Share Document