Suchergebnisse

Highlights on the doctrine of Acquired Rights and the jurisprudence of international administrative tribunals -- Institutional Setting of Administrative Tribunals: The case of the Inter-American Development Bank Administrative Tribunal (IDBAT), with references to its peers -- Legal standing and the role of staff associations before (international) Administrative Tribunals -- Harassment Investigations in International Organizations: Rights of Claimants under the Jurisprudence of the International Labour Organization Administrative Tribunal -- The United Nations jurisprudence on pre-disciplinary cases involving sexual exploitation and abuse -- Divergent Standards of Proof Currently Applied by International Administrative Tribunals in Serious Misconduct Cases: An Evolving Snapshot -- Reasonable doubt about 'beyond reasonable doubt' in international administrative law.

A significant portion of the work of the U.S. Courts of Appeals is reviewing decisions and rules of administrative agencies. These cases often require generalist judges to deal with highly technical and complex matters for which their backgrounds have not necessarily prepared them. Their difficulty in dealing with the cases is compounded not only by various requirements of the litigation process that frustrate complete judicial access to the facts of the case, but also by practices of the agencies and their attorneys. This article reviews various proposals to remedy these problems. It concludes that the advantages of an independent review by generalist judges outweigh any advantages of specialized courts or panels. It proposes, however, various procedural innovations that would hold the parties to a more responsible role in the process and promote more informed communication between the parties and the court.

The emergence of a more visible and powerful judiciary in Mexico in the last 20 years fits a pattern seen in new democracies all over the world. Democratization and judicialization in post-authoritarian regimes seem to converge, at times acting as mutually reinforcing processes. As part of the strengthening of the courts, the role of judicial review of administrative action has expanded considerably and it has given them a bigger role determining the boundaries of the relationship between citizens and the administration. This thesis looks at one instance of judicialization of administrative law using judicial review of expropriation in Mexico as a case study. Mexico has had some form of constitutional review since the nineteenth century, but its role has been largely ignored because Mexico's system of government for the most part of the twentieth century can be described as a dominant party system in which a single party governed for almost 70 years. The Mexican political system was somewhere in between a full authoritarian regime and a democracy. In this context, formal judicial independence was severely limited and it was assumed that the courts never challenged the executive branch and were completely subordinate. This research examines how the Supreme Court in Mexico decided cases in which owners challenged expropriation orders between 1917 and 2008 and it concludes that judicial review of administrative action in Mexico was stronger than what is generally presupposed and that this judicialization of administrative law is increasingly having some negative consequences.

The present era has seen an unprecedented fragmentation of the public sphere, a breakup of public imperium into separate pieces, not only left in the hands of supranational or subnational authorities, but also entrusted to private actors. With the abandonment of previously undisputed notions of strict legal verticality and the undivided general interest, the separation of powers doctrine as applied in most European systems of administrative law is in need of serious rethinking. Current debates on the judicial control of governmental discretion are still hampered by a discursive language and a legal grammar that tend to draw sharp lines between law and policy, awarding each of the three branches of government its own well-defined domain. Contrary to widespread belief, the trias politica as an ideology of disjointed powers and separate spheres cannot be traced back to Montesquieu's theory of law, but only from its philosophical rebuttal and inaccurate reception in subsequent times. Ironically, a proper analysis of Montesquieu's theory may indicate a viable way forward for a system of review of government actions that attunes to its modern social and institutional context.

The arguments that may be raised in support of a claim of abuse of discretion must go to the legality, not just the wisdom or advisability, of administrative action. Though the judge is responsible for seeing to it that the government acts in conformity with law, he may not put himself in its place or interfere in its functioning. His job is not to determine whether in a given case a certain administrative official ought to have acted and, if so, in one particular way. He has neither the means nor the materials for judgments of this sort, nor does he have responsibility for administrative action. Should he undertake to control its wisdom or advisability, he would risk impairing the normal flow of government. These are nearly the words an American court might use in declining to rule on the merits of administrative action. To be more exact, the language has the ring of a dissenting opinion in which a judge accuses his brethren of venturing beyond the domain of the law into that of policy, where they have no business being. The words actually come from three members of the Conseil d'Etat, France's closest analogy to a supreme administrative court, attempting to describe one aspect of that institution's important, yet delicate, role in French public life.