Procedural Fairness in International Courts and Tribunals.

Author:Simonoff, Jessica
Position:Book review
 
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Procedural Fairness in International Courts and Tribunals. Edited by Arman Sarvarian, Filippo Fontanelli, Rudy Baker and Vassilis Tzevelekos. London: British Institute of International and Comparative Law. Pp. 420. [pounds sterling]50.

Procedural Fairness in International Courts and Tribunals, edited by Dr. Arman Sarvarian, Lecturer in law at the University of Surrey School of Law, Dr. Filippo Fontanelli, Senior Lecturer in international economic law at the University of Edinburgh Law School, Dr. Rudy Baker, Lecturer in law and political science at the University of Surrey, and Dr. Vassilis Tzevelekos, Senior Lecturer in law at the University of Liverpool Law School, provides a timely compilation of thoughtful essays concerning the impact of procedure on the actual and perceived fairness experienced by the parties to disputes in international fora. Given the proliferation of international courts and tribunals and the growing demand for their services in a wide variety of international disputes, questions of procedural fairness are increasingly significant and gaining prominence in international practice. The international legal community has a vested interest in exploring these questions for multiple reasons: not only is procedural fairness a potential basis for argument in any given case, but it is also a critical underpinning of the continued survival and growth of the international dispute resolution system.

This collection of essays on procedural fairness offers views of value to practitioners and academics alike because it touches on a variety of topics in different types of fora and contexts, including both criminal and civil proceedings in international and regional courts as well as private commercial arbitration and investor-state arbitration. Consequently, Procedural Fairness in International Courts and Tribunals serves the twin purposes of providing practical suggestions to lawyers, judges, and arbitrators who may be considering issues of procedural fairness in their specific cases while also opening a dialog on the subject for broader discussion.

Procedural Fairness in International Courts and Tribunals is divided into four sections composed of multiple essays. The first section provides a framework for understanding the historical approach to procedural fairness in different legal traditions. After preparing the reader with that background framework, the second section sets forth what the core standards of procedural fairness are today and examines those standards in criminal and civil contexts. The third section examines the current procedural fairness challenges facing international courts and tribunals, such as the International Court of Justice (ICJ), the International Criminal Court (ICC), the Court of Justice of the European Union, and tribunals hearing investor-state proceedings. Finally, the fourth section concludes the book with an essay by two of the editors, Arman Sarvarian and Rudy Baker, who offer their thoughts on issues in procedural fairness that they anticipate arising in the future and on other issues not explored in this volume. The remainder of this review will address each of these four sections in greater depth.

Part One lays the foundations for the remainder of this book by defining procedural fairness, or alternatively, identifying its key features. 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. 20). They then discuss the relationship of procedural fairness and the community in which it is being applied. Expanding that discussion to the international community, they then address various distinctions between procedural fairness in the international legal system, on the one hand, and domestic legal systems, on the other. Ultimately, they close this chapter with the view that, while many procedural instruments of international law share certain similarities, "one universal model is perhaps unlikely" (p. 38).

Judge Sir Kenneth Keith offers a unique perspective on the practical aspects of fairness in international civil tribunals. Starting from the baseline that both the public and the decision maker require a fair process, Sir Kenneth reviews how procedural issues relating to fairness have been addressed historically through an analysis of the minutes of the Permanent Court of International...

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