Special referee

Abstract: THE ICC Rules for the pre-arbitral referee were issued in 1990.1 According to the ICC, its intention was to provide the business community with a procedure allowing the parties to apply to a ‘referee’ for urgent provisional measures. The Foreword to the Rules insists that: > The Pre-arbitral Referee procedure provides the business world with a new procedure through which rapid action may be taken when certain difficulties arise in the course of a contractual relationship. These Rules are designed to meet a specific need: that of having recourse at very short notice to a third person – the ‘Referee’ – who is empowered to order provisional measures needed as a matter of urgency. These Rules require the inclusion of a special provision in the contract, in addition to the usual arbitration agreement. Such special provisions were included in certain contracts, but it took more than 10 years for them to be applied in two different cases. One subsequently became public as a result of ensuing annulment proceedings before the Paris Court of Appeal. This attracted the immediate attention of the arbitration community and the international arbitration institute organized a well-attended conference in Paris on 31 May 2002, where the counsel for the parties in these proceedings, the individuals appointed by the ICC as referees (Prof. Bernard Hanotiau2 and Prof. Pierre Tercier), and certain practitioners with insider knowledge of the institution were invited to discuss their respective experience.3 The authors of this article were counsel to the claimants in the first two cases, and in the subsequent annulment proceedings, as well as in the fourth case. Now that the Paris Court of Appeal has handed down its decision (attached as Appendix 2), holding that the decisions of referees are not arbitral awards, it is probably useful to draw …

Abstract: Since the Simmenthal case of the ECJ, the national judge has been coined the ‘ordinary judge of EU law’, meaning that this judge has the primary responsibility for ensuring the effectiveness of EU law through different techniques. While there has been a large amount of research on the role of domestic courts in relation to international law, the question of whether the domestic judge could also be characterized as the ‘ordinary judge of international law’ in the sense the phrase is used regarding EU law has never been raised. This article identifies the contents of the phrase in the context of EU law in order to test it against international law. It undertakes this by transposing the different types of invocability – direct effect, invocability of consistent interpretation, invocability of damages, and invocability of exclusion – which set the national judge as a primary judge of EU law, to international law before domestic judges. While the analysis relies mainly on French case law relating to international law, comparisons are drawn, where relevant, between the case law of this jurisdiction and that of other jurisdictions in order to establish a general trend. This permits the conclusion that, while the French courts remain reluctant to ensure the effectiveness of international law through the adoption of the different techniques of invocability, other domestic judges behave as ordinary judges of international law in a way that is very similar to the way the national judges treat EU law.

Abstract: Juvenile court reliance on referee hearing officers is another practice that requires revision to comport with the juvenile justice legalization trend. The use of referees is widespread, but not universal. Where used, referees may hear an overwhelming percentage of the juvenile court workload. Referee status and, in turn, juvenile court status suffer from statutory curbs on the authority of this official. Parties dis satisfied with referee advisory decisions may request a new hearing before the juvenile court judge; with exceptions, referee authority is limited to entering findings and recommendations which require confirmation by a judge to become a final order. Recent appellate court decisions threaten these procedures. Double jeopardy problems ac company the state's appeal of a referee's dismissal of charges brought against a youth; due process constraints suggest that a defendant is entitled to a final decision by the official who has heard the testimony in the first place. Analysis indicates that, de...