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Miluše Hrnčiříková


The growth in the amount of international arbitrations, the value of the disputes and expenses invested into the arbitral proceedings have escalated the pressure to succeed in dispute. The arbitrators face to guerrilla tactics or threats of annulment of arbitral awards based on the violation of a right to a due process. Soft law regulating the arbitral procedure endowers the effectives of the arbitration, however, in the recent years the critical voices can be heart which warn against overregulation and its judicialization. On the following pages the impact of the soft rules prescribing the arbitral proceeding on the effectiveness of the international commercial arbitration is examined. Firstly the author deals with the right to a fair trial and the discretionary power of arbitrators in the framework of the notion of soft law and then the binding character of this soft law is determined. The aim of this article is to answer the question whether the regulation of the arbitral proceedings by soft law is still welcomed or if it represents a threat for the discretionary powers of the arbitrator and arbitration as such.

Open access

Brian Christopher Jones and Austin Sarat

wider citizenry? There is certainly nothing wrong with justices aiming their opinions at a wide audience. After all, using non-technical or “plain language” is something that other judges have championed; Sonia Sotomayor has incorporated plain language tactics, and has noted that the technical language of the law may obscure the relevance of a decision. See , e . g ., Steven Schwinn, Opinion Analysis: Plain Language Rules the Day (and Keeps a Claim Alive) in Prisoner-Rights Suit , SCOTUSblog (June 6, 2016), http://www .

Open access

Bruce G. Peabody

that even an extreme violation of law would not diminish voters’ intimate ties to, and faith in, the candidate. Interestingly, in those instances where the President has pushed most aggressively against individual judges, independence norms, and regular judicial procedures, these personalization tactics have been especially prominent. Thus, President Trump (in)famously questioned the capacity of Federal District Court judge Gonzalo Curiel to hear a case involving Trump University fairly, on the grounds that the judge was compromised by his purported “Mexican

Open access

James E. Pfander

constitutionalism and avoiding inconvenient historical truths, Justice Scalia performed the inevitable judge’s task of fashioning new law out of old. By choosing to deny or obscure his tactics in the standing cases, Justice Scalia could continue to deploy originalist methodology as a sledgehammer in assailing the judge-made law with which he disagreed. II Standing Law Before Justice Scalia’s Arrival Our brief evaluation of the law of standing when Justice Scalia took the oath of office in 1986 Justice Scalia joined the Court in 1986, after having spent four years on United

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Ross J. Corbett

the Court’s pre- Watkins use of formalism to bring about the just result. II Contempt of Congress Under Vinson The House Un-American Activities Committee grew out of the anti-fascist Dies Committee, and quickly turned to focus on the tactics of the Communist Party. M ORTON J. H ORWITZ , T HE W ARREN C OURT AND THE P URSUIT OF J USTICE 54–55 (1998); W ALTER G OODMAN , T HE C OMMITTEE : T HE E XTRAORDINARY C AREER OF THE H OUSE C OMMITTEE ON U N -A MERICAN A CTIVITIES 24–58 (1968). Its counterpart in the Senate, the Subcommittee on Internal

Open access

Maria Panezi

for least-developed countries. During smaller scale negotiations smaller countries can refine their negotiating tactics. An interesting example is the case of Zambia and Mauritius as participants in the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC). The participation of the two countries in both Regional Trade Agreements has assisted them in preparations for negotiations in the WTO context by providing training, raising awareness, and overall giving a more familiar forum with countries facing similar

Open access

Robert G. Natelson

the convention, and advised delegates on tactics, e.g ., 3 1972 Convention, supra note 1, at (remarks by Delegate Martin announcing the tactical advice to him by a reporter). Advocates, by reason of the convention and several years of preparation, already were organized, but the scattered distribution of Montana’s population rendered it difficult for opponents to marshal their forces within the available time. Associated Press, Delegates Set June 6 for Constitution Vote , Great Falls Tribune, Feb. 6, 1972, at 1. Numerous civic associations supported the “pro

Open access

James A. Gardner


This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it ‘permanently provisional.’