Academic journal article Asia Pacific Law Review

The Duties of Fairness and Impartiality in Non-Judicial Justice

Academic journal article Asia Pacific Law Review

The Duties of Fairness and Impartiality in Non-Judicial Justice

Article excerpt

I. Introduction

The study of values underlying the justice system is an important one in every national legal system as it is essential to guaranteeing democracy and liberty. The maintenance of a fair, impartial, and independent justice system is also an essential feature for proper and effective international trade and global investments. Multi-national corporations will be attracted to invest and engage in international trade in jurisdictions where they have confidence in the impartiality and independence of the tribunals that will adjudicate disputes that arise in those jurisdictions. This is particularly important in our contemporary age of globalisation.

Generally, we will suggest that while there are differences between typical judicial justice procedures and the alternative dispute resolution procedures that may require a different application of principles, the core concept remains unchanged. The principles of judicial independence, impartiality, and the value of fairness apply to both. A new approach must be introduced to ensure fairness in online justice, following the model of impartiality and decisional independence that is now accepted for administrative adjudicators.

This article will begin by discussing the concept of the judiciary and identify other approaches to the principles of fairness and impartiality. Then, this article will emphasise five key values: (i) procedural fairness; (ii) efficiency; (iii) accessibility; (iv) public confidence in the courts; and (v) judicial independence. Each of these values allows the courts to fulfill their main function, which is the resolution of disputes. These fundamental values are inter-related. A proper legal system is one that advances each of these values. The increasing role which the judiciary plays in many jurisdictions further emphasises the significance of clarifying the conceptual framework and theoretical rationales of the values of the justice system and reinforces the need to define the role of the judiciary vis-a-vis the other branches of government.

Second, after discussing fairness and impartiality in the judiciary, this article will discuss fairness and impartiality in the non-judicial setting. Recently, there has been significant expansion in the field of non-judicial justice. The aim of this paper is to discuss the applicability of the judicial values to alternative dispute resolution procedures, namely the weight of impartiality and fairness in this field. We will focus on three main aspects in this field. First, we will consider these values as applied to international arbitration. Next, we will focus on the applicability of these values in the procedures conducted by state auditors and internal auditors and by commissions of inquiry. And finally, the innovative field of online justice will be considered.

II. The Expansion of the Recourse to Alternative Dispute Resolution performed by Officers Who are Not Part of the Judicial Branch

One can observe a number of categories of alternative dispute resolution (ADR). Some are court related and some are not. The categories of ADR are civil, administrative non-judicial procedures, criminal non-judicial procedures, and online. Further, civil ADR includes arbitration and mediation. Administrative non-judicial procedures include public complaints procedures, ombudsmann, student complaints commissioners, tribunals, state auditors, internal auditors, and procedures before Commissions of Inquiry. This category also includes administrative agencies that review procedure dealing with a long list of matters such as public housing, tax reviews, welfare placement, health issues and the like. The criminal non-judicial procedures include procedure to handle complaints from crime victims as well as restorative justice procedures. The online dispute resolution (ODR) includes public ODR by public agencies and corporate ODR, which generally consists of disputed charges to consumers accounts and other decisions adversely affecting consumers. …

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