Academic journal article Australian International Law Journal

Due Process of Law beyond the State

Academic journal article Australian International Law Journal

Due Process of Law beyond the State

Article excerpt

Giacinto delta Cananea, Due Process of Law Beyond the State (Oxford University Press, 2016) ISBN 978-0-19-878838-6,206 pages.

The author - a professor of administrative law and European Union administrative law from the University of Rome--writes in his foreword that he found that the work of administrative and constitutional lawyers on the one hand and international lawyers on the other "leave a gap that is sometimes hard to bridge. This book is an attempt to bridge that gap."

The introductory Chapter 1 presents a transnational perspective on administrative justice. "Administrative" is broadly defined as the exercise of power and is not limited to rule making or adjudication (p 1). The author contends that the requirements of procedural due process are increasingly invoked in transnational situations between individuals, corporations and public entities (p 3).

The book consists of three parts. Part One considers the requirements of administrative due process. Part Two presents the rationales for due process requirements. Procedural requirements have a variety of rationales, and in the transnational arena there are a set of rationales which are distinct from those in the national one. Part Three presents a theory of administrative due process beyond the State, of which there are several rival theories.

Chapter 2 of Part One considers the requirement to carry out a procedure. Decisions of public authorities are typically preceded by a series of activities and acts or a sequence of steps that is called procedure (p 22). The codification of administrative procedure is an increasingly evident legal phenomenon, and only a minority of States presently lack administrative procedure codes (p 23). Chapter 3 considers the maxim audi alteram partem or the right of parties potentially affected by a decision to have a reasonable opportunity to be heard. When faced with due process problems that have no compelling historical analogies, courts and arbitral tribunals typically tend to look to other legal systems (p 59). Chapter 4 addresses the giving reasons requirement. Each chapter in Part One follows a formula - a description of the historical origins of the particular administrative rule under consideration, an explanation of the underlying rationale, an attempt to identify a minimum standard using national examples, and finally teasing out the extent to which a transnational minimum standard might exist from judgments and decisions of international courts and tribunals.

In Part Two, Chapter 5 discusses a variety of rationales for due process. The author contends that, having regard to bilateral and multilateral conventions as well as arbitral and judicial decisions, the rationale for due process requirements in the transnational content is different from the national one. However, the failure to identify the main values protected by due process in the transnational arena will lead to an inadequate conception of these rationales as well as impair their effective functioning. The author distinguishes between the rationales for the procedural requirements that law imposes on public authorities within the State as being either non-instrumental or instrumental (p 90). While the former focuses on dignity and participation (Chapter 6), the latter concentrates on good administration and cooperation between public authorities in fields such as standard-setting (Chapter 7).

Chapter 8 in Part Three offers a conceptual analysis of administrative due process which is distinct from the principle of legality, the prohibition of arbitrariness and the denial of justice. Examples include the International Court of Justice judgment in ELSI (1989), the World Trade Organisation's Shrimp dispute (1998) and the European Court of Justice ruling in Kadi (2008). In the field of foreign direct investment, private parties such as corporations now routinely invoke 'due process of law' conditions commonly included in bilateral investment treaties as a shield against expropriatory action by governments. …

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