Essays On Fairness In The Courtroom

Essays On Fairness In The Courtroom-66
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Part Two focuses more narrowly on particular principles associated with or forming the body of procedural fairness. Serena Forlati concerning the right to a fair trial in international non-criminal tribunals. Forlati first explores the role that consent plays in international non-criminal adjudication, specifically with respect to the fair trial model, which includes access to courts and enforcement of judgments. Sophie Rigney focuses on fairness in international criminal tribunals. Rigney argues that fairness is critical to trials in international criminal tribunals and offers three potential reasons for fairness: it offers tribunals a tool for interpreting and supplementing the applicable procedural rules or laws; it assists trial chambers to reach conclusions by enabling them to ensure “that evidence is rigorously tested and of high quality” (p. Rigney then contrasts the centrality of fairness with the uncertainty of what constitutes fairness, arguing that different approaches to fairness—namely, whether fairness is owed primarily to the accused or rather to all of the participants in a case—have yielded an incoherent approach to fairness across international criminal tribunals, leaving the questions of “what international criminal law is trying to achieve, and how it will do so …” unanswered (p. In the following chapter, Laura Marschner focuses on the impact that victim participation in disputes before international criminal tribunals has on procedural fairness in criminal cases. Marschner notes the growing emphasis placed on victims’ rights in such proceedings and argues that victim participation need not be a “‘zero-sum game’ where the expansion of rights of victims automatically diminishes those of the accused and, ultimately, procedural fairness” (p. She proposes that the rights of victims may be balanced with those of the accused (p.

First, Raymundo Tullio Treves argues that, in civil cases, inequality of resources may impact equality of arms, which requires “(i) that each party be given a reasonable opportunity of presenting its case; and (ii) that one party may not be at a substantial disadvantage vis-à-vis the other” (p. He then posits that inequality of resources may be remedied through the provision of financial assistance funds provided by tribunals and arbitral institutions or the use of third party financing. Masha Fedorova examines how the principle of equality of arms has been applied in international criminal tribunals. James Devaney turns to a different aspect of procedural fairness, examining the role that evidence plays in achieving procedural fairness. Devaney explores the International Court of Justice's use of “experts phantoms” (experts informally consulted by the Court), strongly discouraging it in favor of experts appointed by the Court pursuant to the Court's statute.

Where financial assistance is not available, he posits that courts and tribunals have “a duty … She begins by examining the meaning and application of the concept of equality of arms in a human rights law context, with reference to the European Court of Human Rights. He also advocates against the use of experts as counsel and in favor of additional direction from the Court concerning examination and cross-examination of experts and fact witnesses. Chiara Giorgetti analyzes the techniques of cross-fertilization, focusing on how they are applied to procedural matters in international courts and tribunals. Giorgetti explains “cross-fertilization” as a method by which “international courts routinely reference customary international law, general principles of law and rules developed in other international judicial and arbitral practice” (p. She then examines how international courts and tribunals use this method to support decisions in favor of applying existing standards and, separately, to support decisions to depart from existing standards. Giorgetti argues that not only is cross-fertilization common among international courts and tribunals, but also that their use of it signifies “the initial formation …

Filippo Fontanelli and Paolo Busco author the first chapter of Part One, which they begin by examining the concept of procedural fairness, highlighting that both procedural and substantive fairness are necessary to the perceived legitimacy of a legal regime: “[T]hat justice is ultimately done is not sufficient for the legal order to achieve social legitimacy …

authority and efficiency,” they argue, “justice must also be seen to be done” (p. They then discuss the relationship of procedural fairness and the community in which it is being applied.


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