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Lack of judicial independence: impact on transnational and international litigation

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Omar Garcia-Bolivar
Omar Garcia-Bolivar

Presentation on impact of lack of judicial independence in transnational and international litigation. ABA, Miami, October 2012. Lack of judicial independence impacts not only internally to the citizens who suffer that, but can also hinder enforcement of judgments in foreign jurisdictions as well as create a cause of action in human right and foreign investment claims, inter alia.

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Omar E. Garcia-Bolivar Lack of judicialLack of judicial independence:independence: impact in transnationalimpact in transnational and international litigation.and international litigation. How to determine that?How to determine that? ABA/IABA Meeting. Miami.ABA/IABA Meeting. Miami. October 19October 19thth , 2012, 2012
Omar E. Garcia-Bolivar Lack of judicial independence: What.Lack of judicial independence: What. Judiciary is not reliable.Judiciary is not reliable. Judges are prone to influence and are perceivedJudges are prone to influence and are perceived to decide cases based on factors different thanto decide cases based on factors different than the law and the facts.the law and the facts. Influence can be political or economic. MassInfluence can be political or economic. Mass media/public opinion?media/public opinion?
Omar E. Garcia-Bolivar The standard: enforcementThe standard: enforcement Analysis is not of a specific case but of theAnalysis is not of a specific case but of the whole judiciary.whole judiciary. Enforcement of foreign judgment:Enforcement of foreign judgment: UFMJRA:UFMJRA: system of impartial tribunalssystem of impartial tribunals.. Hilton:Hilton: systemsystem likely to secure an impartiallikely to secure an impartial administration of justiceadministration of justice andnothing to showandnothing to show prejudice in the court or in the systems of laws..prejudice in the court or in the systems of laws.. OsorioOsorio: in: in practicepractice
Omar E. Garcia-Bolivar The standard: FNCThe standard: FNC Adequacy: systemic analysis or not.Adequacy: systemic analysis or not. SchwarzingerSchwarzinger: case: case would not be decided onwould not be decided on meritsmerits in alternate forum, hence notin alternate forum, hence not appropriate.appropriate. Banco LatinoBanco Latino: adequate forum need: adequate forum need not be anot be a perfect oneperfect one. Only corruption in particular case. Only corruption in particular case will warrant finding of alternate as inadequate.will warrant finding of alternate as inadequate.
Omar E. Garcia-Bolivar The standard: InternationalThe standard: International Investment LawInvestment Law CAFTA: FET includesCAFTA: FET includes obligation to not denyobligation to not deny justicejustice in accordance with principles of duein accordance with principles of due process of lawprocess of law U.S. BIT-Ecuador: obligationU.S. BIT-Ecuador: obligation to provideto provide effective meanseffective means of asserting claims andof asserting claims and enforcing rights.enforcing rights.
Omar E. Garcia-Bolivar Lack of judicial independence: WhyLack of judicial independence: Why Enforcement of foreign judgments.Enforcement of foreign judgments. Forum non conveniens: adequacy.Forum non conveniens: adequacy. Insurance policy claims.Insurance policy claims. Denial of justice under international investmentDenial of justice under international investment law.law. Human rights violationHuman rights violation.. Futility argument.Futility argument.
Omar E. Garcia-Bolivar Lack of judicial independence: HowLack of judicial independence: How Delicate matter. Unbiased:Delicate matter. Unbiased: OBJECTIVEOBJECTIVE.. System in reality: contrast of law and facts.System in reality: contrast of law and facts. Factors:Factors: Appointment of judges.Appointment of judges. Decision making.Decision making. Discipline.Discipline. Removal of judgesRemoval of judges LAW FACTS
Omar E. Garcia-Bolivar Lack of judicial independence: HowLack of judicial independence: How Validation:Validation: 360 degree approach.360 degree approach. Secondary sources:Secondary sources: No indicators on judicial independence.No indicators on judicial independence. State Department reports.State Department reports. World Bank.World Bank. United Nations.United Nations. European Union.European Union. NGOs.NGOs.
Omar E. Garcia-Bolivar Lack of judicial independence: endLack of judicial independence: end Lack of judicial independence matters in a globalLack of judicial independence matters in a global world.world. It is measurable.It is measurable. Challenges ahead: objective way to do it.Challenges ahead: objective way to do it. It can be of use to policy makers in reformIt can be of use to policy makers in reform agenda.agenda. ThanksThanks,,
Omar E. Garcia-Bolivar Lack of judicial independence: endLack of judicial independence: end Lack of judicial independence matters in a globalLack of judicial independence matters in a global world.world. It is measurable.It is measurable. Challenges ahead: objective way to do it.Challenges ahead: objective way to do it. It can be of use to policy makers in reformIt can be of use to policy makers in reform agenda.agenda. ThanksThanks,,

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Lack of judicial independence: impact on transnational and international litigation

  • 1. Omar E. Garcia-Bolivar Lack of judicialLack of judicial independence:independence: impact in transnationalimpact in transnational and international litigation.and international litigation. How to determine that?How to determine that? ABA/IABA Meeting. Miami.ABA/IABA Meeting. Miami. October 19October 19thth , 2012, 2012
  • 2. Omar E. Garcia-Bolivar Lack of judicial independence: What.Lack of judicial independence: What. Judiciary is not reliable.Judiciary is not reliable. Judges are prone to influence and are perceivedJudges are prone to influence and are perceived to decide cases based on factors different thanto decide cases based on factors different than the law and the facts.the law and the facts. Influence can be political or economic. MassInfluence can be political or economic. Mass media/public opinion?media/public opinion?
  • 3. Omar E. Garcia-Bolivar The standard: enforcementThe standard: enforcement Analysis is not of a specific case but of theAnalysis is not of a specific case but of the whole judiciary.whole judiciary. Enforcement of foreign judgment:Enforcement of foreign judgment: UFMJRA:UFMJRA: system of impartial tribunalssystem of impartial tribunals.. Hilton:Hilton: systemsystem likely to secure an impartiallikely to secure an impartial administration of justiceadministration of justice andnothing to showandnothing to show prejudice in the court or in the systems of laws..prejudice in the court or in the systems of laws.. OsorioOsorio: in: in practicepractice
  • 4. Omar E. Garcia-Bolivar The standard: FNCThe standard: FNC Adequacy: systemic analysis or not.Adequacy: systemic analysis or not. SchwarzingerSchwarzinger: case: case would not be decided onwould not be decided on meritsmerits in alternate forum, hence notin alternate forum, hence not appropriate.appropriate. Banco LatinoBanco Latino: adequate forum need: adequate forum need not be anot be a perfect oneperfect one. Only corruption in particular case. Only corruption in particular case will warrant finding of alternate as inadequate.will warrant finding of alternate as inadequate.
  • 5. Omar E. Garcia-Bolivar The standard: InternationalThe standard: International Investment LawInvestment Law CAFTA: FET includesCAFTA: FET includes obligation to not denyobligation to not deny justicejustice in accordance with principles of duein accordance with principles of due process of lawprocess of law U.S. BIT-Ecuador: obligationU.S. BIT-Ecuador: obligation to provideto provide effective meanseffective means of asserting claims andof asserting claims and enforcing rights.enforcing rights.
  • 6. Omar E. Garcia-Bolivar Lack of judicial independence: WhyLack of judicial independence: Why Enforcement of foreign judgments.Enforcement of foreign judgments. Forum non conveniens: adequacy.Forum non conveniens: adequacy. Insurance policy claims.Insurance policy claims. Denial of justice under international investmentDenial of justice under international investment law.law. Human rights violationHuman rights violation.. Futility argument.Futility argument.
  • 7. Omar E. Garcia-Bolivar Lack of judicial independence: HowLack of judicial independence: How Delicate matter. Unbiased:Delicate matter. Unbiased: OBJECTIVEOBJECTIVE.. System in reality: contrast of law and facts.System in reality: contrast of law and facts. Factors:Factors: Appointment of judges.Appointment of judges. Decision making.Decision making. Discipline.Discipline. Removal of judgesRemoval of judges LAW FACTS
  • 8. Omar E. Garcia-Bolivar Lack of judicial independence: HowLack of judicial independence: How Validation:Validation: 360 degree approach.360 degree approach. Secondary sources:Secondary sources: No indicators on judicial independence.No indicators on judicial independence. State Department reports.State Department reports. World Bank.World Bank. United Nations.United Nations. European Union.European Union. NGOs.NGOs.
  • 9. Omar E. Garcia-Bolivar Lack of judicial independence: endLack of judicial independence: end Lack of judicial independence matters in a globalLack of judicial independence matters in a global world.world. It is measurable.It is measurable. Challenges ahead: objective way to do it.Challenges ahead: objective way to do it. It can be of use to policy makers in reformIt can be of use to policy makers in reform agenda.agenda. ThanksThanks,,
  • 10. Omar E. Garcia-Bolivar Lack of judicial independence: endLack of judicial independence: end Lack of judicial independence matters in a globalLack of judicial independence matters in a global world.world. It is measurable.It is measurable. Challenges ahead: objective way to do it.Challenges ahead: objective way to do it. It can be of use to policy makers in reformIt can be of use to policy makers in reform agenda.agenda. ThanksThanks,,