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New Courts in the Asia-Pacific Region | |
| Presented by Centre for Asia-Pacific Initiatives, University of Victoria |
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Objectives of the Workshop: The objectives of this workshop are: • to enable contributors to a book on new courts in the Asia-Pacific region to present their work-in-progress in a collegial atmosphere; • to allow contributors to the book to receive feedback from colleagues involved in the same project; • to discuss the establishment of new courts in the Asia-Pacific region; • to discuss the performance of new courts in the Asia-Pacific region, as well as the difficulties encountered; • to discuss reasons for judicialization in the Asia-Pacific region; • to discuss the implications of judicialization in the Asia-Pacific region in relation to other states Significance and Timeliness of Research Issues: During the last 15 to 20 years there have been numerous instances of the creation of new courts in the Asia-Pacific region. In most cases these new courts have been encouraged and supported by international (bilateral and multilateral) development agencies, which have spent a large amount of money setting them up and building their judicial, technical and infrastructural capacity. This trend commenced with the opening of the economies of China (1973) and Vietnam (1986) and has clearly intensified since the economic crisis of 1997/8 and the urge to join the WTO of various nations in the region. The consequent emphasis on good governance and commercial dispute resolution has culminated in even greater development of ‘new courts’. At the same time, some states in the region have for various reasons set up new courts of their own volition. In some instances the strategy has been to reform totally an existing court rather than set up a new one. The broad justification for this general trend towards judicialization has been that ‘rule of law reforms’ or ‘rule of law implementation’ is necessary for the development of the market economy, democratization, good governance or the enforcement of human rights. Thus both economic development and good governance are thought to depend on judicialization. These ‘new courts’ are mainly specialist courts, which have a specific jurisdiction, whether that is over cases involving intellectual property disputes, bankruptcy petitions, commercial contracts, public law adjudication, personal law issues, labour or industrial disputes, new modes of justice administration such as jury systems, and even fisheries. In fact the variety of these new courts is seemingly unlimited. It is an open question, however, whether the setting up of a new court enables effective dispute resolution. First, judicialization may not always be the best way of solving the problem. Secondly, while judicialization may be a viable option, it does not follow that a new or specialist court is the best solution. Thirdly, whether judicialization produces effective dispute resolution for disputants remains insufficiently explored. Fourthly, whatever advantages there may be in setting up a new court, these may be offset by the disadvantages accruing from deterioration or downgrading of the reputation of pre-existing or ‘traditional’ courts, and jurisdictional confusion between these and special courts. We now have sufficient experience of these new courts to be able to assess their performance and the resulting gains and losses institutionally and from the perspective of court users. This workshop will take a comparative look at legal reforms in the Asia-Pacific region involving the creation of new, specialist courts (including new chambers or divisions, and far-reaching reforms of ‘old’ or ‘traditional’ or ‘civil’ courts) over the last 20 years. Contribution to Advanced Understanding of Research Issue: The following groups of questions will be addressed by contributors so as to provide answers based on careful comparison. Apart from a few country-studies, no previous attempt has been made to draw general conclusions on the range of court innovations, and comparative success in terms of institution building including from the litigants’ perspective and implications for law and development. 1. Why has the ‘new-court’ model been adopted in so many instances as opposed to other variants? Whose idea was it, and what precedents were in contemplation? Why do international development agencies in particular seem to favor this type of solution? Why do nation-states often seem to do the same? 2. What difficulties have these new courts encountered? (Lack of institutional capacity, jurisdictional difficulties, hostility?) What difficulties has the legal system as a whole encountered in consequence of the creation of new courts? (erosion of authority of old courts, distortions in access to justice, jurisdictional confusion?) 3. How have the new courts performed? Have some new courts performed particularly well or badly and why? How do we erect appropriate criteria to judge their performance? Are use rates relevant? What informs or challenges their legitimacy? 4. What are the implications of the answers to these questions regarding the trend towards judicialization in general and new courts in particular? Should western governments and international agencies, and should Asia-Pacific states themselves, continue or modify the trend toward new courts? 5. Are ‘developmentalist’ agendas silencing ‘other’ modes of dispute resolution? If we look beyond courts to other dispute resolution practices are our studies of courts informed / challenged? For example, if the study assumes the priorities of ‘other’ social/economic institutions to the resolution of disputes, would the emphasis on courts be under scrutiny? |
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