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Due Process of Law Beyond the State.

Giacinto delta Cananea, Due Process of Law Beyond the State (Oxford University Press, 2016) ISBN 978-0-19-878838-6,206 pages.

The author - a professor of administrative law and European Union administrative law from the University of Rome--writes in his foreword that he found that the work of administrative and constitutional lawyers on the one hand and international lawyers on the other "leave a gap that is sometimes hard to bridge. This book is an attempt to bridge that gap."

The introductory Chapter 1 presents a transnational perspective on administrative justice. "Administrative" is broadly defined as the exercise of power and is not limited to rule making or adjudication (p 1). The author contends that the requirements of procedural due process are increasingly invoked in transnational situations between individuals, corporations and public entities (p 3).

The book consists of three parts. Part One considers the requirements of administrative due process. Part Two presents the rationales for due process requirements. Procedural requirements have a variety of rationales, and in the transnational arena there are a set of rationales which are distinct from those in the national one. Part Three presents a theory of administrative due process beyond the State, of which there are several rival theories.

Chapter 2 of Part One considers the requirement to carry out a procedure. Decisions of public authorities are typically preceded by a series of activities and acts or a sequence of steps that is called procedure (p 22). The codification of administrative procedure is an increasingly evident legal phenomenon, and only a minority of States presently lack administrative procedure codes (p 23). Chapter 3 considers the maxim audi alteram partem or the right of parties potentially affected by a decision to have a reasonable opportunity to be heard. When faced with due process problems that have no compelling historical analogies, courts and arbitral tribunals typically tend to look to other legal systems (p 59). Chapter 4 addresses the giving reasons requirement. Each chapter in Part One follows a formula - a description of the historical origins of the particular administrative rule under consideration, an explanation of the underlying rationale, an attempt to identify a minimum standard using national examples, and finally teasing out the extent to which a transnational minimum standard might exist from judgments and decisions of international courts and tribunals.

In Part Two, Chapter 5 discusses a variety of rationales for due process. The author contends that, having regard to bilateral and multilateral conventions as well as arbitral and judicial decisions, the rationale for due process requirements in the transnational content is different from the national one. However, the failure to identify the main values protected by due process in the transnational arena will lead to an inadequate conception of these rationales as well as impair their effective functioning. The author distinguishes between the rationales for the procedural requirements that law imposes on public authorities within the State as being either non-instrumental or instrumental (p 90). While the former focuses on dignity and participation (Chapter 6), the latter concentrates on good administration and cooperation between public authorities in fields such as standard-setting (Chapter 7).

Chapter 8 in Part Three offers a conceptual analysis of administrative due process which is distinct from the principle of legality, the prohibition of arbitrariness and the denial of justice. Examples include the International Court of Justice judgment in ELSI (1989), the World Trade Organisation's Shrimp dispute (1998) and the European Court of Justice ruling in Kadi (2008). In the field of foreign direct investment, private parties such as corporations now routinely invoke 'due process of law' conditions commonly included in bilateral investment treaties as a shield against expropriatory action by governments. The most significant chapter in the text is perhaps chapter 9, which considers administrative due process as a general principle of public law. Following a discussion of general principles of law recognised by civilised nations as a source of international law (pp 157-63), the author concludes that administrative due process is a variable standard in which essential procedural requirements are differentiated from non-essential ones. As suggested by the "exemplar" decision of an ICSID tribunal in Klocbner (1983), due process can offer a complementary and corrective role. But the function of the concept is more than simply gap-filling. Due process has an important foundational role in the sense that it contributes to shaping the foundations of a legal order as such (pp 173-8, 197).

Chapter 10 offers a synthesis of the argument. Due process of law first emerged in the United Kingdom as a moral requisite that judicial authorities must respect, then as a constitutional principle in the United States' Bill of Rights and finally in Europe and Latin America as a judge-made, unwritten principle of administrative law during the late nineteenth/early twentieth centuries. The author asserts that administrative due process is now a general principle of global law which applies in both normative and empirical terms. It has become a principle that public administrators must abide by in the transnational arena (p 178). The author considers and rejects the cultural and moral objections he raises to this proposition. The principle of administrative due process is common to most if not all national legal systems as well as several regional and global regulatory regimes. The first discernible trend is an emergent constitutional principle in Europe, the Americas, Commonwealth countries and East Asian nations to entrench procedural fairness. A second feature of State practice is the increasing codification of administrative procedure, whether it be for adjudicative purposes or for administrative rule-making (p 190). This particular development has been accompanied by the formation of regional custom and greater cross-fertilisation. Although due process was not akin to a "global fifth amendment", it is at its most influential when deployed as an interpretative principle. Administrators, judges and arbitrators now take account of due process requirements when adjudicating disputes across all policy areas, especially if there are no specific provisions dealing with procedural issues. Individuals and businesses should therefore expect that similar if not the same requirements of administrative procedure are coherently and consistently respected. Administrative due process of law is fundamental to government in the sense that it provides standards of conduct for public authorities. The concept is also increasingly observed by international institutions including the Appellate Body of the World Trade Organisation.

This book is a product of relatively recent interest in the study of 'global administrative law', a label which is not mentioned until p 95. As suggested by the book's title, the author unsurprisingly focuses on issues of procedure rather than substantive questions about the way in which particular discretions are exercised. The text draws on national judicial decisions such as the United Kingdom, United States, India and France but is also replete with illustrations from the World Trade Organisation, European Union and international commercial arbitrations, even if several cases are now somewhat antiquated. The unique aspect of this text is its strong predisposition towards examples drawn from international trade and investment law. As well as considering the interpretation of procedural requirements laid down by regional human rights charters, the author also assesses due process requirements subsisting within international trade agreements such as the Agreement on Trade-Related Aspects of Intellectual Property Rights. Perhaps administrative or constitutional lawyers are yet to fully engage with their international legal colleagues, but this book is a short and readily-digestible contribution to an increasingly important field.

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Author:Tully, Stephen
Publication:Australian International Law Journal
Article Type:Book review
Date:Jan 1, 2017
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