JUNE 2016

    Shimon Shetreet

The administration of justice, an essential safeguard of the rule of law, also underpins an effective economy. It must be robust and efficient in order to provide a trusted forum for trade disputes, be they domestic or international. At a time of unprecedented global trade and international intercourse, it is important that states should strive to maintain minimum international standards in the administration of justice. This article considers the essentials of a fair and just system of dispute resolution — crucially the need for an independent, impartial and efficient judiciary. This article revisits the fundamental values of the justice system that the author identified many years ago in the light of recent trends, both local and international.

justice system; independence of the judiciary; access to justice; law’s delays; dispute resolution, economy and trade
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A fair and efficient system of administering justice is indispensable for an effective framework for domestic and international trade and other economic activity — a justice system which provides an impartial forum for settlement of disputes, offering easy access and speedy resolution of conflicts. In order to be credible and effective, the justice system must be separate from the legislative and administrative processes of the state. This separation of the system of justice requires that the judiciary should enjoy institutional independence and that judges be protected against undue influence or pressure by way of threats or inducements. Thus, the importance of maintaining a culture of judicial independence is readily apparent.

Now more than ever, the administration of justice is subject to constant and strict scrutiny from varied sources such as public media, civil society and international organisations. Of particular influence are publications by those international organisations which have been aggregating performance data over the years, providing a valuable source of information to compare how domestic systems have improved or regressed and to compare the performance of states which are in competition for enhanced opportunities for international trade.

Globalisation has not brought in its train a true harmonisation of domestic laws and legal processes, with the result that global trade and commerce operate in a context of widely different legal systems. Where international investors or traders are governed by the laws of a host country, it is imperative for them to be confident that systems are in place to safeguard and promote global trade through an impartial and effective system of dispute resolution, with effective provision for recognition and enforcement of foreign judgments. Fairness, a reflection of the notion of “natural justice”, is an integral part of any justice system. Judicial proceedings must be impartial and judicial decisions must be founded on credible evidence.2 A court must recognise a foreign judgment only if it is convinced that it is the result of a fair and impartial judicial process. The recognition of credible foreign judgments helps maintain a level of trust between different countries conducive to international trade relations.