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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