The tension between the rule of law and efficiency Thomas Schultz University of Geneva.

The tension between the rule of law and efficiency

Thomas SchultzUniversity of Geneva

1926

“we believe to have serious reasons to be convinced that the only means to satisfy our

aspiration for justice is the resigned confidence that

there is no other justice than the justice to be found in the

positive law of states”

“we believe to have serious reasons to be convinced that the only means to satisfy our

aspiration for justice is the resigned confidence that

there is no other justice than the justice to be found in the

positive law of states”

political ideology

classical legal positivism

law=

justice=

state

<1>

applicable law =

state law

lois de police

<2>

dispute resolutiona

public function

ideal

a.

due process

due process:European Convention on

Human Rights

due process:no strict page limit

due process:no strict page limit

comfortable timeframe

b.

factual accuracy

‘‘a decision based on wrong facts is by definition unfair’’

full fact-finding

rule of law efficiency

500 euro dispute

500 euro dispute:consumer protection law?

500 euro dispute:consumer protection law?

consumer?

500 euro dispute:consumer protection law?

consumer?targeting?

500 euro dispute:consumer protection law?

consumer?targeting?

consumer protection provisions

500 euro dispute:consumer protection law?

consumer?targeting?

consumer protection provisions

rule of law efficiency

rule of law efficiency

rule of law

rule of law

rule of law=

rule of law=

predictability

rule of law=

predictability

1.

governance by general norms

2.

public ascertainability

3.

prospectivity

4.

perspicuity

5.

congruencebetween

formulationand

implementation

dispute systems design:

dispute systems design:

accessible and clear rules

dispute systems design:

accessible and clear rulespublication of awards

dispute systems design:

accessible and clear rulespublication of awardsreasoning of awards

dispute systems design:

accessible and clear rulespublication of awardsreasoning of awards

stare decisis (de facto)

dispute systems design:

accessible and clear rulespublication of awardsreasoning of awards

stare decisis (de facto)=

predictability

dispute systems design:

accessible and clear rulespublication of awardsreasoning of awards

stare decisis (de facto)=

rule of law

congruencebetween

formulationand

implementation

negotiation and mediation

adjudication

adjudication

cognitively reliable

negotiation and mediation≠

rule of law

dispute systems design:

accessible and clear rulespublication of awardsreasoning of awards

stare decisis (de facto)=

rule of law