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This chapter examines the criminal procedures applied (or to be applied) by internationalized courts in Kosovo, East Timor, Cambodia, and Sierra Leone, including developments for the period up to August 2003. Following a brief presentation of the procedural law that is applicable to each of the internationalized courts, different criteria for the assessment of procedural regimes are discussed. Particular procedural features of the different regimes are compared with international standards for fair and expeditious proceedings in accordance with the International Covenant for Civil and Political Rights, and some other international instruments. Possible preparatory steps are proposed to overcome some identified shortcomings in the criminal procedures of internationalized courts, such as the ones established in Kosovo and East Timor.

This chapter advances four main arguments. Firstly, in stark contrast to the situation in international law, where international law is by definition part of the applicable law of an international court, general international law in principle is neutral as to the question whether international law is part of the applicable law. Next, national law plays a complementary role by allowing international law to become part of the applicable law beyond what international law itself requires. Thirdly, while a variety of ways and techniques may be used to achieve this, from the perspective of the international rule of law the method of automatic incorporation offers the best guarantees for a powerful role for national courts. Finally, international law in principle allows states autonomy in the application of procedural law, but subjects such application to the principle of effectiveness.

At every stage of the proceedings, the procedural law determines the Prosecutor's scope of action and is therefore of utmost importance for his competence and powers. To assess the Prosecutor's role properly it is necessary to provide an overview of the procedural regimes of the various tribunals. This chapter thus serves as an introduction to the following chapters, where the main procedural aspects and problems are discussed in more detail. It shows that each tribunal has developed its own, more or less unique, procedural code and that, accordingly, the mission and competences of the Prosecutors differ from tribunal to tribunal.

This chapter discusses the administration of criminal justice in Germany under military government. The report claims that German criminal law conflicts in many respects not only with the theories and practices for which German criminal law had previously stood, but also with the theories which, in Anglo-American countries, are traditionally linked to the functions of criminal law. This conflict alone does not suffice to impose upon military government a duty to revise or revoke criminal legislation. The chapter considers changes in the German criminal justice system which are necessary not only for the security of the occupying army and the orderly development of German political and social life, but also for the execution of the policies and purposes of the United Nations. It also makes a number of recommendations with respect to military government's approach to criminal law, substantive law, procedural law, problems of jurisdiction, amnesty problems, prosecution of Nazi offenders against German citizens, and problems of administration.

This chapter explains why our relationship with technology will move from use to interaction. It also explains why the approach we have relied upon to control misuse then becomes unsuitable. It offers an alternative approach for controlling misuse, and demonstrates how it addresses the problem. Law has not realized there must be two types of rules: rules about technology and rules about human behavior (which may or may not involve technology). Law tends to conflate the two. This is the result of expediency and history, and must be revised. The chapter explains that this approach also influenced the procedural rules that govern what law enforcement can, and cannot, do in investigative criminal activity. Finally, it explains that the approach it advocates applies with equal validity outside the criminal context — to civil rules, such as tort rules, that are also about human behavior.

This chapter discusses the legal nature of the claims process. Topics covered include the type of process; exclusivity of process; how substantive law, if any, is applied and whether procedural law at the place where the claims process is located applies; whether decisions made in the claims process are final and binding; whether decisions rendered in the claims process require approval of another body before becoming effective; whether there are any aspects of claims as to which decision-makers are mandated to follow and apply decisions by another body; and how decisions in the claims process are enforced. An Editors' Commentary and separate Annotations show how each of these Mass Claims Processes has handled the matter.

This chapter focuses not only on European civil procedural law, but it also explores its relations with public international law. This explains rests on the following observations. On the one hand, European procedural law has largely shifted away from the traditional concepts of international law relating to cross-border litigation (especially in the field of judicial assistance). However, there are still some areas in civil litigation where the traditional concepts of public international law are fully applied. On the other hand, European civil procedural law attracts ‘political litigation’ which was traditionally barred by concepts like State and diplomatic immunity, public policy, and the political question doctrine. As these concepts have been — at least partly — modified in the European Judicial Area, litigants are engaging in ‘borderline cases’ seeking redress in situations traditionally precluded by public international law. Against this background, the chapter explores whether European procedural law offers new prospects for the private enforcement of human rights.

This chapter focuses on only one aspect of procedural law: that relating to citations, the process by which parties were summoned to appear before a court. It examines three specific parts of the law of citations. First is the question of its necessity. Did one have always to issue a formal citation before adjudication? Second is the question of time. How long an interval had to come between service of the citation and the required appearance in court? Third is the question of the citation's contents. How much information had to be placed in it to establish its validity? The task is to investigate how the ius commune came into being. The three topics chosen are important and are illustrative.

This chapter discusses how there is some significance in expanding the rule of law to include a procedural dimension, particularly given contemporary national, global, and political realities. Due to suffering a deficit of procedural fairness in various courts of criminal justice, complementing the property-centered rule of law ideology with something that highlights people rather than profit certainly cannot hurt. A little bit of rule of law idealism—whether formal, procedural, or substantive—might help make the case for robust procedural protections, or at least complement rule of law interpretations that focus on profit with one that centers on individual dignity and intelligence. The chapter presents four objections to this proposal, characterized as suggested friendly amendments, and a fifth crucial remark about some of the features of all three paradigms of rule of law scholarship that Professor Jeremy Waldron has identified: formal, procedural, and substantive.

This chapter explains the role of procedural law in arbitration. Aside from the arbitrators, the language, and the substantive law, the principle of party autonomy affords the parties to arbitration the freedom to choose the procedural law. In order to attract more cross-border arbitration business to Scotland, the policy clearly sets the tone that the choice of procedural law can be different from the choice of the substantive law. For instance, parties to arbitration may choose Swiss law to govern disputes arising from the main contract between them but to have procedural matters governed by Scottish arbitration law. In Scotland, the choice of arbitrating in accordance with the Arbitration (Scotland) Act 2010 does not affect the parties' choice of substantive law other than Scots law to determine the substantive issues. This chapter discusses issues relevant to procedural law in arbitration, including the seat of arbitration, default rules, mandatory rules, and the debate over delocalisation theory concerning the seat of arbitration in international commercial arbitration. It also considers jurisdictions where delocalisation theory has received support, such as France, Switzerland and Belgium.

Although the Civil Procedure Rules (CPR) have not notably influenced the development of Dutch civil procedural law during the past decade prior to this book's publication, they have played a role in the discussion about the fundamentals of civil procedure that has taken place in the Netherlands country since 2002, the year in which its Code of Civil Procedure underwent a substantial update. This chapter discusses the influences of CPR on civil procedure and evidence reform in the Netherlands, such as the overriding objective of procedural justice, the duty of the parties to help the court to further that objective, case management by the court to the same end, the idea of ‘cards on the table’, expediency and proportionality, the responsibility of the parties to cooperate and aim at a settlement, and alternative ways of dispute resolution.

This chapter presents the sources and editions of medieval learned law. As well as guidance on the texts, it offers advice on how to approach the study in more general terms. It draws on and updates an earlier introductory booklet which appeared in Dutch and German under the title Utrumque Ius. The discussion covers the text of the Corpus iuris civilis, Roman and Canon law, the Corpus iuris canonici, procedural law, feudal law and a strategy for research.

This chapter examines the interactions between the proposed Common European Sales Law (CESL) and domestic and other European law. It first discusses general issues relating to the application of the CESL. This includes the requirements that must be met for the CESL to apply to a contract; the consequences of any failed choice; the scope of the CESL; the consequences of a choice of CESL outside the situations envisaged by the Commission proposal; specific problems which a choice of CESL can cause before courts outside the European Union; the relationship between CESL provisions and other consumer protection provisions; and overriding mandatory provisions. The chapter then looks at how the CESL interfaces, from a conflict of laws viewpoint, with various areas of law, including the law of obligations; of unfair trade practices; property law; intellectual property law; and procedural law, including jurisdiction and collective proceedings against standard terms.

Strong procedural elements are indispensable for international environmental law’s capacity to serve community interests. Procedural obligations can strengthen the rule concerning the prevention of environmental harm and flesh out its due diligence standard. Procedural obligations can also serve useful purposes when states, or judges, are reluctant to entertain substantive arguments, or find it difficult to establish that environmental harm has been caused. Violations of procedural obligations are more easily established and states can sometimes be prompted to correct harmful conduct or to take more effective preventive measures. Unfortunately, the operation of procedural rules is constrained by the dearth of practice and the continued struggle to define the substance of community obligations and the legal effects of erga omnes norms. Treaty-based approaches have proven better suited to accommodating community concerns, perhaps because they place such strong emphasis on procedural elements and employ increasingly diverse formal lawmaking and informal standard-setting approaches.

This chapter applies insights of a public law theory to the law and practice of international adjudication. It takes up many aspects of current debates. Given the importance of democratic representation, it examines the role of deliberative bodies in the selection of judges. Beyond that, courts can generate their own democratic legitimation if they proceed in a transparent, deliberative, and participatory manner and embed themselves into relevant publics. Finally, the democratic principle provides clues as to how judges should reason. They can calibrate their review in light of the principle of democracy, can refer to the lawmaking of other institutions, and can promote the democratic quality of political processes.

This chapter sets out the theoretical context for the study by exploring the central themes and issues concerning common ethical standards for counsel. It examines the principal arguments employed in favour of and against the professionalization of advocacy. It defines key terms used in the book and contextualizes the main themes within the procedural law of the international judicial system. It connects these themes to the national traditions of advocacy, procedure, and practice of international courts and tribunals and early professionalization efforts explored in the successive chapters in the book. It examines the relevance of ethical standards to the fairness and integrity of international judicial proceedings and to the concept of sovereignty of parties.

This chapter examines international cooperation with respect to cybersecurity and cybercrime and argues that the approaches used by the Group of Eight (G8) and the Council of Europe (CoE) raise significant problems regarding privacy and other key values. Moreover, the efforts of both international bodies amount to policy laundering because they circumvent national democratic discourses in favor of comparatively closed international decision-making processes. The solutions offered by the G8 and the CoE may have implications for the interaction between technology and law, on one hand, and between national discourse and international policy making, on the other hand. The chapter outlines strategies for reinserting deliberative democracy into these processes. After discussing the challenges of jurisdiction and national technology policy, it looks at the logic of conventions and the G8’s work on data preservation and data retention, the CoE’s initiatives related to procedural law, and search and seizure of stored computer data.

In the second half of the nineteenth century, a legislative drive led to the creation of a number of specific laws. The state clearly saw itself as much more than a custodian of Indian notions of law and justice, as it did before 1857. It was now deliberately trying to create a comprehensive framework of substantive and procedural law, while drawing upon western concepts and Indian case law freely for that purpose. And yet, the legislative drive led to an upsurge in litigation. Apparently, the courts and the laws created new problems while solving old ones. For example, there were frequent overlaps between different laws for a certain type of dispute, the one between contract and procedure being especially common. The move from one driver (preserving Indian tradition) to another (a modern universal legal framework) had apparently ended up producing too many laws for the same dispute.