Sądowoadministracyjna kontrola przyjęć na studia w PRL

The scope of judicial review regarding the application of administrative law in the authoritarian Polish People’s Republic (Polska Rzeczpospolita Ludowa — PRL) was limited. The reason for this is obvious: resolving disputes between executive power (public administration) and individuals in PRL by courts functioning in honest and effective way would be an “obstruction” of the tasks executed by the communist state. The Supreme Administrative Court was reactivated in the last stage of PRL’s functioning in 1980, following the model of interwar tradition. The paper offers an analysis of judicial-administrative review in PRL in the field of university admissions. Organization and functioning of the authoritarian PRL exerted an influence on the way judicial review of public administration operated. Administrative justice reactivated in 1980 was submitted to organizational and jurisdictional limitations, as the created Supreme Administrative Court was a one-instance institution with limited jurisdiction, filled with only nine judges. Still, reactivating administrative justice began the process of restoring the proper place for freedoms and individual rights against the state, including the right to attend higher education schools. The analysis of the chosen case has allowed to identify some significant interconnected processes and phenomena in the judicial-administrative review in the declining stage of PRL within the whole domain of administrative law. One example is public administration striving for avoiding judicial review by taking a position that settlement of an administrative matter by the university is not an administrative decision. Another example is regulation of individual freedoms and rights by a multi-layered unstable system of legal sources, including: law on higher education, order of the Minister for Science, Higher Education and Technology, and non-published guidelines from the Minister of Health and Social Welfare of 21 May 1981 on admission principles and procedure of full-time studies at medical universities.

THE ROLE OF REASONABLENESS IN THE REVIEW OF LABOUR ARBITRATON AWARDS (PART 1)

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter.

The Future of Administrative Justice

This chapter considers the future of administrative justice. Using the United Kingdom as a case study, it argues that the rise and fall of administrative justice can be likened to the swing of a pendulum. It considers first-instance decision-making, the role of outsourcing, the expanding role of administrative review and its implications for administrative justice, the decline of tribunals and the rise of ombudsmen, the effectiveness of oversight arrangements, and the impact of digitalisation. It concludes that the future of administrative justice in the United Kingdom is unlikely to involve a replay of anything that has been encountered in the past.

7. Challenging decisions: appeals, administrative and judicial review

This chapter discusses the development of the current structure of the appeals bodies—the Appeal Tribunal and the Special Immigration Appeals Commission (SIAC)—and their procedure. It sets out the limited rights of appeal following the implementation of the Immigration Act 2014. It has sections on administrative review and judicial review. The chapter also considers whether there is a right to a fair hearing in immigration and asylum decisions. It concludes with a section on immigrants and asylum seekers’ access to legal representation, including funding.

Administrative Review Provisions in Chinese Investment Treaties: ‘Gilding the Lily’?

Despite the popularization of investor-state arbitration (ISA), administrative review remains a helpful local remedy for investment-state dispute settlement (ISDS) in some states. China has a complicated and comprehensive legal system of administrative review. It has concluded a large number of international investment agreements (IIAs), and nearly half of them contain an administrative review provision. These provisions could be considered as an expropriation review mechanism, a standalone ISDS option, an ISA supporting measure or a pre-ISA requirement. Given that administrative review has legal and practical limits, and that China’s national law on dispute settlement and foreign investment governance keeps changing, the attractiveness and significance of administrative review for ISDS are diminishing. In China’s recent IIA-making, there appears an emerging trend of abandoning administrative review. In the long run, it remains to be seen how China will balance local remedies and ISA in IIA-making and foreign investment governance in the future.

Rule of law and the scope of interpretation of legislative provisions in the process of judicial and administrative review. Remarks against the background of the phenomenon of „lawmaking” of administrative courts

The rule of law, as stipulated in article 7 of the Constitution of the Republic of Poland, is one of the fundamental principles shaping the functioning of public administration in the Republic of Poland. Legality of the functioning of public administration is also accepted as the basic criterion of judicial and administrative review of the actions taken by the administration. However, judgments of administrative courts often go outside the boundaries of findings that could be made based on linguistic interpretation of legislative provisions, by referring to the rules of the legal system, including in cases where no doubts exist with regards to the interpretation of provisions. The aim of this paper is to offer insight into the basis and nature of doubts encountered with regards to the admissibility of the use of non-linguistic interpretation by administrative courts where the use of such interpretation does not appear to be required.

Issues related to notaries public’s offices in selected Galician law journals

The article deals with the issue of the informative value of Galician law journals in research on the history of notaries public in the years 1871–1914. The text presents the analysis of such titles as „Kwartalnik Stowarzyszenia Kandydatów Notarialnych w Krakowie”, „Prawnik”, „Przegląd Sądowy i Administracyjny”, „Urzędnik w Połączeniu z Prawnikiem” [“Quarterly of the Association of Notary Candidates in Krakow”, “Lawyer”, “Judicial and Administrative Review”, “The clerk combined with the lawyer”]. A large part of their content was devoted to texts on the notary public’s services. The continuity, cyclicality and quality of published materials are noteworthy, as they provide opportunities for research on the professional group of notaries, especially with the use of an ego-documentary perspective.