Justice and Development in Latin America and the Caribbean by IDB

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SEMINAR SPONSORED BY THE INTER-AMERICAN DEVELOPMENT BANK San Jose, Costa Rica February 4-6,1993

Washington, D.C., 1993

Justice and Development in Latin America and the Caribbean

Inter-American Development Bank 1300 New York Avenue, N.W. Washington, D.C. 20577 ISBN: 0-940602-72-5

The views and opinions expressed in this publication are those of the authors and do not necessarily reflect the official position of the Inter-American Development Bank.

Introduction Carlos Cordovez

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PART I: OPENING REMARKS TO THE SEMINAR Law, Justice and-Development in Latin America in the Nineties Enrique V. Iglesias Shaping Modern Judicial Systems in Latin America Rafael Angel Calderon Fournier

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PART II: JUDICIAL MANAGEMENT Chapter 1. Judicial Management Ivan Lavados Mantes Juan Enrique Vargas Viancos

Chapter 2. Alternative Methods of Conflict Resolution under Common Law William Douglas

Chapter 3. Bodies that Govern and Administer the Judicial Branch of Government in Latin America Hector Fix-Zamudio

Chapter 4. Justice in Central America in the Nineties Rene Hernandez Valiente

PART III: TRAINING IN THE JUDICIARY Chapter 5. Training and Continuing Education for Judges German Hermosilla Arriagada Chapter 6. The Judicial Career and Training Rafael Addiego Bruno

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TABLE OF CONTENTS

Chapter 7. The Judicial Career and Training Luis Fernando Solano Carrera

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Chapter 8. The Judicial School and the Training of Judges Fernando Hinestrosa

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PART IV: THE JUSTICE SYSTEM IN LIGHT OF DEVELOPMENT Chapter 9. Justice in Times of Globalization: Calls and Prospects for Change Rogelio Perez Perdomo

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Chapter 10. Justice in the Face of a New Trend in Development Hector Alegria

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Chapter 11. Modernization of the Administration of Justice in Colombia Carlos Gustavo Arrieta Padilla

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Chapter 12. Labor Law in Brazil Carlos Eduardo Bosisio

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PART V: JUSTICE AND THE INTERNATIONALIZATION OF LAW Chapter 13. International Dimensions of Justice Hector Gros Espiell

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Chapter 14. Creation of a Supranational System of Justice in Latin America Antonio Boggiano

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Chapter 15. Justice and the Internationalization of the Law Didier Opertti Baddn

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Chapter 16. Justice and the Internationalization of the Law Tomds de la Quadra-Salcedo

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Chapter 17. Justice and the Process of Economic Integration Dr. Francisco Villagrdn Kramer

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PART VI: A COMPARATIVE STUDY OF THE ADMINISTRATION OF JUSTICE Chapter 18. The Administration of Justice in Argentina, Bolivia, Ecuador, Jamaica, Mexico, Panama, Paraguay and Uruguay Universidad Externado of Colombia

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TABLE OF CONTENTS

Chapter 19. Judicial Reform in Developing Countries and the Role of the World Bank Ibrahim F.I. Shihata

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Chapter 20. International Cooperation in the Administration of Justice James H. Michel

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Chapter 21. The IDE and the Administration of Justice Nestor-Humberto Martinez Neira

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PART VIII: REPORT AND CLOSING OF THE SEMINAR Seminar Report Ivan Lavados Monies Juan Enrique Vargas Viancos

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Summary and Conclusions Elizabeth Odio Benito

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Closing Remarks Enrique V. Iglesias

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LIST OF PARTICIPANTS

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PART VII: INTERNATIONAL COOPERATION AND THE ADMINISTRATION OF JUSTICE

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This publication reflects the proposals, reports and conclusions of the Seminar on Justice in Latin America and the Caribbean in the Ninetiesâ&#x20AC;&#x201D;Challenges and Opportunities, held in San Jose, Costa Rica, in February 1993, under the auspices of the Inter-American Development Bank. The event was a first step taken by the countries of the region to strengthen, with support from the Bank, their activities in this area. The meeting brought together recognized experts on the subject at a forum made up of the highest authorities in this area: Ministers of Justice, Chief Justices and members of the highest courts, Solicitors General and Attorneys General. The Seminar is part of the Bank's continuing goal of supporting the efforts of countries to consolidate their economies and attain sustained levels of growth leading to full development. Lately, this support has been directed at sectors, with a view to improving their economic and administrative efficiency and strengthening their institutions. The economic model adopted by the region requires proper selection and implementation of policies to encourage a growing volume of private investment that will help trigger improvements in living standards. Consequently, the subject of justice and the law falls within the overall context of government reform and modernization undertaken in conjunction with structural reform in the region in recent years. Such reforms and modernization require adjustments in the legal system, which cannot remain isolated from economic growth and the globalization of trade relations of every kind. The efforts undertaken in the region to open up economies, as well as the adoption of policies to overcome poverty and bring all sectors of society into the production process, have highlighted the fact that the challenge of modern democracies is how to ensure the rule of law based on a modern and stable legal framework and a stronger, independent, modern and responsive legal system. Modernization of the law thus becomes a pressing task. It is necessary not only in order to improve the investment climate but also because it is an essential component of economic and social development in Latin America and the Caribbean. Support for this sector will give rise to actions aimed at removing the obstacles that impede the better fulfillment of law and justice so as to ensure that economic and social development go hand in hand with an adequate regulatory and institutional framework.

INTRODUCTION

The purpose of our Seminar was to stimulate regional dialogue among the various authorities responsible for the justice sector, gaining direct knowledge of conditions and promoting a broad debate on the subject and on ways of dealing with the challenges posed by a changing society. Lastly, the Seminar was designed to guide any possible efforts by the Bank to improve the administration of justice as a basic component of government in the region. Notwithstanding the obvious difficulties faced by the judiciary in Latin America, countries have been reacting favorably to these issues, and the desire for change is evident from the reforms mentioned earlier. These changes include regulatory and constitutional reforms as well as political and social changes prompted by an implicit social consensus on the urgent need for action. The opening session was devoted to the topic of the law, justice and development. The conclusion, as the record shows, is that law and justice should be viewed not only on a static conceptual plane but as part of a broad notion of development. Subsequently, we focused the discussion on analyzing five crucial topics, starting with administration of the courts in Latin America and the Caribbean. This topic dealt with various aspects of the main problems in the administration of justice, as described in a paper entitled "Judicial Management," prepared by Dr. Ivan Lavados Montes. There was a discussion on the difficulties faced by the sector in the area of court management including administration of human and material resources; planning, designing and evaluating streamlined procedures; and those difficulties that need to be overcome if judicial services are to improve in the region. Next, there was a discussion on the judicial career and training by Dr. German Hermosilla Arriagada. The importance of adequate judicial training as a prerequisite for the proper operation of the judiciary was emphasized. There was agreement in this session on the need to professionalize the judiciary by establishing a judicial career based on a merit system. This was deemed essential to the selection, promotion, stability and compensation of officials. Also emphasized was the need to contribute to the training of those who ultimately manage the judiciary. The conclusion was that reform and modernization of the justice system should not be confined to the legislative arena and that the establishment of judicial training schools was necessary. Also discussed was the issue of justice in times of globalization presented by professor Rogelio Perez Perdomo. The participants agreed on the need for creating conditions to permit Latin America and the Caribbean to become a part of the process of globalization or interaction of economies and societies by upgrading their legal systems. This involves adjusting the regulatory framework and setting up a prompt, objective and efficient judicial system. Emphasis was also placed on the importance of expanding the role of nonjudicial mechanisms, so as to generate alternative ways or means of settling disputes. In the fourth session, Hector Gros Espiell made a presentation on justice and the internationalization of the law, in which he discussed ways to deal with the issues of law and justice in the new international economic order. He underscored, among other aspects, the need to develop new instruments or correctly use existing ones to reconcile views in the area of arbitration or legal integration; the establishment of regional courts and subregional integration agencies to deal with the impact of international law on nationals of different states; the process of "bringing laws closer together," as

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described by Dr. Tomas de la Quadra-Salcedo; and finally, the importance of holding meetings of national judges to ratify new international trade law. Finally, there was a discussion of the major contributions made in the area of justice by the World Bank, the U.S. Agency for International Development and the Inter-American Development Bank, all under the topic of international cooperation in the area of administration of justice. All the agencies involved, while fully respecting the independence of judges and the sovereignty of states, agree that cooperation in this area should be coordinated and encourage the authorities in each country to take the initiative. In sum, it would be fair to say that the Seminar opened the door to the possibility of borrower member countries asking the IDE to help in their efforts to improve their legal systems. To that end, the areas below hold follow-up potential for the Bank: • Modernizing the law: There is a need to reform and update basic laws connected with sectors that are critical to economic and social development, including in particular the financial, investment, trade, environmental, employment and social sectors. In addition, there is broad regional consensus as to the scope of the reforms needed in procedural laws that in most cases lead to very slow judicial proceedings. It is therefore necessary to change the procedures in order to faster decide cases and expedite trials, thereby making them less formal and costly. Lastly, in view of the globalization of economies and the internationalization of trade, it is particularly important to address the harmonization of laws with a view to integration. The Bank could support the efforts of member countries to modernize their legal systems by providing technical assistance that will include the contributions of comparative law. • Strengthening court administration: Institutional strengthening programs should consider decentralized operation systems, supported by other disciplines, sciences or techniques capable of contributing to a greater efficiency in the judiciary. One of the key causes of judicial weakness in Latin America is the dual function of judges. They must discharge their judicial duties, on the one hand, and on the other, handle administrative matters that interfere with their primary mission of meting out justice. Here, the Bank could fund projects based on alternative solutions to the administrative problems of courts, as well as technical assistance to train public administrators of the courts (a new field) through, among other means, a regional exchange of information and experience. • Alternative methods of settling disputes: Effective judicial reform must necessarily include new mechanisms to help unclog the courts and, at the same time, to provide an appropriate and effective way to settle certain disputes. Through its projects, the Bank could thus promote alternative means of settling disputes. • Training for the judiciary: Reform and modernization of legal systems must provide for the training of human resources. It is important to stress that basic ruleof-law principles are being lost in society. Hence the need to give priority to dialogue as the norm in human coexistence. Consequently, consideration should be given to programs that include these elements, incorporating into civics programs the study of democratic institutions as well as the history of political ideas. This task should begin in the elementary stages of education and continue throughout the university. Unacceptable practices in the legal profession contribute

INTRODUCTION

to the crisis affecting legal systems and hurt the image of the law and the administration of justice. It would be useful to evaluate the depth of these problems in the region, especially in terms of government regulation and supervision of law schools. Likewise, there is a need to emphasize professional ethics both in the practice of the law and in law schools. Disciplinary panels should be strengthened while supporting self-regulation or formal supervision by bar associations. At the same time, improving the training of judges and professionalizing the judiciary should become a goal of reform so as to help overcome the problems connected with the human factor in the judiciary. There is much the Bank can do in this area by promoting and funding alternatives designed to strengthen careers in the judiciary and establish judicial schools in the region. â&#x20AC;˘ Access to justice: A program to update legal systems must necessarily include measures to offer all segments of society adequate access to justice. This should include, among other activities, the promotion of legal aid systems for low-income sectors of the population; methods to bring government legal services into less developed communities; legal education programs for the people; and effective ways of ensuring the protection of basic collective rights. â&#x20AC;˘ Modernization of judicial infrastructure: Bank projects could provide for investment loans to improve the administration and operation of courts of law; to make available reliable judicial statistics; to establish and maintain legal libraries and data banks, especially on case-law; and to consolidate the efforts now underway in the area of data processing in the judiciary. The above raises, as a first step, basic issues that the bank should consider when developing programs or projects to strengthen and support the legal systems of its borrower member countries. Finally, emphasis must be placed on separating jurisdictional, procedural and administrative activities within the administration of justice., with a view to a specialization of these activities. This will release judges and magistrates from the burdens of administration and processing tasks that may distract them from their jurisdictional mission. In conclusion, the Seminar was an event of extraordinary importance for justice and the law in the region. It reaffirmed that the legal framework must be adapted to the dynamics of economics and that modernization of legal systems should include administrative and judicial, as well as legislative reforms. It is here, then, in the area of comprehensive reform, that the role played by the Bank in response to its borrower member countries will be most fruitful.

Carlos Cordovez Attorney Inter-American Development Bank

OPENING REMARKS TO THE SEMINAR ON JUSTICE IN LATIN AMERICA AND THE CARIBBEAN

PARTI

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Enrique V. Iglesias President of the Inter-American Development Bank

I feel great satisfaction in opening this seminar on such an important subject, which provides great scope for discussion due to its nature and complexity. I wish to thank the Government of Costa Rica, and particularly the President of the Republic for his presence at this opening ceremony, for which we are indebted and by which we are inspired, and the Minister of Justice, Attorney Elizabeth Odio Benito, for the support we have received in organizing the seminar. This is the first time in a long while that the Inter-American Development Bank has organized a program related to the role of law in development. We have not done so in a casual or hasty fashion. On the contrary, more than 30 years of experience, and particularly the recent development of the countries of Latin America and the Caribbean, has made it increasingly clear that development does not take place in an institutional vacuum; rather, it is very closely tied to aspects of the State, its norms, institutions, and the process of government in the broad sense of the term. Within these areas, modernization of the law and of the administration of justice are of critical importance. We do not wish to take simply a glance at the subject. We regard this event as a first step to be followed by others, some of which have already been planned, relating to the role of the state, the public sector, and governance in development. I do not think that these topics would have been raised a decade ago. The fact that they are being widely discussed today explains why the Bank has decided to address them, and also points to the healthy expansion in the concept of development that has taken place as a result of the experience gleaned in the region in recent years. RECENT DEVELOPMENTS IN LATIN AMERICA The crisis of the 1980s severely affected the countries of Latin America. Toward the end of the decade, after achieving reasonable levels of equilibrium and stability— although at a high price—the countries of the region were ready to test strategies

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designed to resume development. One after the other, they began to implement a series of reforms intended to modernize and streamline their systems of production, to open up their economies, and to increase their international competitiveness, without adversely affecting their macroeconomic balance. These reforms were strongly supported by the international financial institutions, but their origin was basically internal: the product of the painful lessons of the "lost decade," the vision of Latin American leaders, and the support given to them by the public. Furthermore, these reforms were consistent with others being carried out throughout the world, from the economies of the European Community, to the attempts of the countries of Eastern Europe to access both democracy and the market, to the experience of the countries of Southeast Asia. The results have not taken long to appear. In 1991 and 1992, the GDP of the region grew at approximately 3 percent a year, in contrast to the decline of nearly 1 percent in 1990. Inflation rates, although still very high in many cases, dropped from an average of 1,200 percent in 1989 to a little over 200 percent in 1992 and are expected to fall even more in the future. Similarly, in 1992 negative transfers of capital abroad, which hovered around $20 billion a year during most of the last decade, changed into a positive flow of resources on the order of $15 billion. This was made possible by the silent transformation in Latin America in recent years. An initial achievement of enormous importance has been the rebuilding of democratic life in most of the countries in the region. This feat is noteworthy of having been achieved without affecting the success of the stabilization process. These accomplishments have been accompanied by strict financial adjustment programs in all countries. A second achievement consists of the growing openness of Latin America, consistent with the presence of an increasingly interdependent global economy and the search for growing international competitiveness in the region. Finally, and perhaps with some delay, countries are initiating a process of institutional restructuring and modernization of the state as a necessary condition for the execution of their new policies. But these reforms are not sufficient in and of themselves to guarantee modern, dynamic, and self-sustained growth or a permanent competitive foothold in a changing international economic scene. They are the equivalent of clearing the land before planting. The last stage requires sowing seeds of growth imbued with creative potential in our countries. It is my belief that the countries of Latin America currently face three great challenges. The first consists of intensifying the process of modernization of productive machinery with a view to achieving higher levels of productivity and competitiveness in world markets through more extensive use of modern technology, increased flexibility and adaptability of economies, and closer ties among economic sectors. Most of the Latin American countries are on their way to attaining this objective, since it is no more than a continuation of the silent transformation that their economies have been undergoing. The second challenge involves a goal that has been deferred to some degree, but one that cannot be postponed any longer: social reform. Although they are burdened by a historical legacy of poverty, Latin American countries have a worthy tradition of struggle for the progress of their societies. Today, traditional ethical motives, inspired by the search for social justice, are accompanied by economic reasons that

make greater social integration an essential requirement for the operation of the economic model that is now being applied. In fact, Latin American countries cannot hope to modernize and increase their productivity or improve their international competitiveness on the basis of exporting raw materials and cheap unskilled labor. The success of current regional development strategies basically depends on integrating marginal sectors into the production process, training the work force, and gaining access to modern technology and productive activities. Therefore, along with programs to provide services to the most disadvantaged groups, steps must be taken to train the labor force and integrate it into the modern sectors of the economy. The third challenge has to do with reform of the state. It is not simply a question of size. The state will not only continue to be necessary but will also be crucial for the development strategies now under way. But experience indicates, and there is consensus on this point, that we should work with a state that is not only smaller but also more intelligent, rational, and innovative; a state that is able to integrate its activities with those of organized civil society, including the market and the private sector, as well as with large parts of society that are currently marginalized; and a state that is more enterprising than bureaucratic. Clearly, reform of the state is inextricably linked to modernization of the law, and both are essential ingredients for strengthening the governance of our countries. THE ROLE OF THE IDE IN THIS PROCESS The Inter-American Development Bank is fully prepared to support these processes. The traditional contribution of the IDB to the development of the region has focused on financing investment projects. The Bank has exerted strong leadership from the beginning in its support of social sectors, higher education, scientific and technological modernization, and the institutional development of its member countries, among other sectors. Following the Seventh Replenishment of Resources, the Bank expanded its sphere of activities. It participated in the restructuring of Latin American economies through sectoral loans to support much-needed reforms designed to promote opening of markets, increasing international competitiveness, restructuring production systems, eliminating distortions in agriculture, liberalizing financial systems, strengthening fiscal and customs systems and, in general, rationalizing the public sector. This new orientation led the Bank to play a more active role than in the past in the efforts of the countries of the region to overcome the crisis of the 1980s, including their attempts to reduce the external debt. This has turned the Bank into the main financial institution channeling capital flows into the region. It should not be forgotten that the IDB, as a regional Latin American agency, has a profound understanding of the economic, social, and institutional organization of its member countries, an effective network of contacts with their authorities and economic and social agents, and a permanent dialogue with them. This has permitted it to evolve in tandem with the needs of the countries of the region. On the threshold of the Eighth Replenishment of Resources, we are prepared, in the first place, to maintain our support for the economic reforms being undertaken by the member countries. Secondâ&#x20AC;&#x201D;although the IDB has always been a pioneer in

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helping to solve the severe social problems that afflict these countries, this is more of an innovation—the Bank is now better prepared than before to assist in social reform that is not limited to alleviating poverty, a mission that must not be abandoned, but also that proposes to integrate the most disadvantaged sectors into the production system. Studies conducted by the Bank to lay the groundwork for this strategy have shown that it must go hand-in-hand with strengthening the institutions of the countries, reforming the state and, of course, modernizing the law. These measures will assure a harmonious legal order that permits expansion of the productive capacity and of the well-being of our nations to grow within a framework of redistribution and social justice. Without efficient, consensual, and participative government, it will not be possible to shoulder the collective commitments required to embark on this task. In addition, integration of the poorest sectors into the economy is a necessary condition for the stability and governance of our countries, characteristics that in turn are key elements in the climate required for investment and development. THE NEED TO MODERNIZE THE STATE Today's development strategies require a profound revision of the State. From the communist and national socialist experiences of the first part of this century, to the European social democratic systems after the war, to the experiences of President Roosevelt's New Deal, to the Great Society of President Johnson, the world has believed in strong government. For a long time it was believed that the state was the only legitimate possessor of power in relation to civil society and the economy. Civic culture today is marked by greater confidence in society and in the market, and by the search for greater cooperation between them and the state. Today the state acts together with a host of institutions designed to work in the public interest, whether directly or in association with the government. The state is beginning to divest itself of responsibilities that are seen as more appropriate for other economic or social agents, while private organizations are being created to work in the public interest. A logical consequence of this greater cooperation between public and private spheres, between the state, civil society, the private sector, and the market, is the search for a state that is more enterprising than bureaucratic. In today's world the state tends to empower citizens, businesses, and social organizations, rather than controlling them or even subsidizing them. It tends to evaluate its own agencies by their results and not by their observance of bureaucratic regulations. It tries to foresee problems before they arise rather than trying to solve them later. It is more concerned with creating resources than with spending them. It decentralizes authority and adopts participatory forms of administration. It promotes competition among its suppliers. It seeks efficiency in its institutions and attempts to provide good public services to its citizens. In its attempt to provide public services, it acts mainly as a catalyst for all sectors—public, private, and voluntary groups—in order to make them capable of solving their own common problems. In keeping with these trends, the countries of the region are initiating reforms to make public administration more agile and more effective; to strengthen its ability to analyze, develop, and apply economic and social policies; to improve fiscal and

budgetary policy, tax systems, and tax administration; to establish more precise regulatory powers that form a counterpart to the processes of privatization and deregulation now under way; and to reexamine systems of social security and their financing. These concerns are not the exclusive domain of the economic agencies of the government, or even of the executive branch; rather, they involve other State powers whose modernization should proceed in tandem with that of the government, such as the legislative and judicial branches. These efforts to modernize, reinforce, and sharpen the focus of state action are viewed in the region as essential requisites for applying current development strategies and speeding up economic growth accompanied by greater social equity. All this assumes the existence of a rule of law, an acceptable degree of legal stability and certainty, a determined effort to adapt the law to new realities, and a modern, independent, and effective system of solving the conflicts of interest that are inherent in society and are sometimes encouraged by the processes of change I have mentioned. THE ROLE OF LAW IN DEVELOPMENT In my opinion, both law and development have suffered from the gap that has traditionally existed between them. This split may have been due as much to the prevalence of an excessively economist-minded view of developmentâ&#x20AC;&#x201D;which minimized the importance of the political, social, and institutional framework in which development occursâ&#x20AC;&#x201D;as to the weight long exerted by an overly formalist vision of law. I believe that experience has led economists to recognize generally that economics, as Lord Keynes said, is an elusive science, and the result has been that development strategies proposed by economists have been changing, ephemeral and, at times, frustrating. I can also see tangible signs that every level of the legal profession is beginning to perceive the enormous economic, technological, and social changes that the world has undergone in recent decades, and that it is taking some steps toward modernization of its content and practice. But much remains to be done in this field. In this respect, this seminar offers us the opportunity to review the most notable challenges faced by the law and the courts in Latin America and the Caribbean in the changing economic and social setting I have described. I recognize that these challenges are highly diverse and very complex. Some are related to the need to make legal rules more receptive to the new conditions of development, the culture of our society, the requirements of the administration of justice, and the civic education of citizens. I therefore do not hesitate to affirm that one of the greatest challenges to the law at this time consists of ensuring that it is able to effectively assimilate reality and today's demands for a harmonious existence and demands in the areas of family relations, labor ties, relations between the State and the citizen, and the world of business. The legal system that governs social behavior should make relations of all kinds easier and more fluid. Therefore, it is necessary now more than ever before to divest Latin American law of the accoutrements of formal culture that often attaches more importance to procedures, authentications, and documents than to the values that the law should protect.

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At the same time, more rapid progress must be made in formulating law to regulate uniformly the varied expressions of contractual decisions. This challenge has become more pointed in recent decades as a result of the great transformations experienced by the world and Latin America. The law does not stand apart from the trends toward globalization and interdependence throughout the world, from the growing openness of Latin America to the outside world, the increasingly active presence of a set of transnational agents in society and the economy, the magnitude and speed that international financial transactions and direct foreign investment have acquired, the processes of privatization and deregulation that are underway, the problems posed by the full integration of women and youth into modern society, and the challenge of granting full citizenship to the vast marginal sectors of the countries of Latin America and incorporating them productively. On the contrary, the law should reflect these transformations and help to manage these new realities. The business community unequivocally asserts the need for uniform legislation to govern daily transactions and facilitate consolidation of an international system of payments through the development of consuetudinary law based on current practice in these transactions, which is becoming the fundamental source of a new "international law of the market." Internationally applicable law should be developed to assist business. It should not be forgotten that business law originated in the Middle Ages and had a markedly ecumenical outlook that needs to be revived. Roman law disappeared in the medieval world, a world in which extremely hierarchical social relations were governed by loyalties and values. Its rediscovery, and the development of law in the Western world were due to the rise of trade, banking, cities, and the State. This occurred as the law was called upon to regulate relations among the different economic and social agents and between them and the authorities. Law gradually became more rigid and trailed behind social change, a phenomenon that began with its codification during the Napoleonic period. The current challenge to the law is to adapt again to changing economic and social realities. This demand made on legislators should serve as the occasion to resolve the inequities that their own domestic legislation has created in the development of certain businesses or industries in the region; legislation which artificially establishes advantages for some sectors over others or over other countries. This could prevent the spread of obligatory systems of arbitration that could harm our competitive capacity. Modernization or reform of the state includes, then, as a fundamental component, the updating of its legal order. The viability, fluidity, and stability of economic transactions, of the investment process, the organization of businesses, the resolution of labor problems, the regulation of many social and family situations that aggravate poverty, and the resolution of conflicts that may arise among the various agents involved in these processes would be seriously jeopardized by the maintenance of outdated institutions and legal rules. Their modernization is an essential ingredient of development. It is worth noting here, that at the end of the 1960s, before it had completed its first decade of work, the IDE began a regional program to study the relationship between law and development and to help to harmonize the two. The fact that the program was not continued despite good initial results is an indication of the separation that has existed between these two spheres.

LAW, JUSTICE AND DEVELOPMENT IN THE NINETIES

Efforts to modernize law are insufficient if they are not undertaken with the firmness and promptness that the public expects. To the extent that society, entrepreneurs, workers, and consumers perceive the administration of justice to be independent and effective, a climate will be created that is conducive to public confidence, stability, transparency, an end to arbitrariness, respect for the rights of all, and the possibility of equal opportunity; all of which constitute an indispensable framework for the development of individual initiative, competitiveness, and growth with equity. In the midst of the current debate about the role, the size, and the proper spheres of action of the state, no one can deny that this is one of its essential functions, one of the main public benefits that it should provide to the community. Nonetheless, even though no one would deny its importance, the administration of justice is one of the social responsibilities that has been largely neglected in recent decades. The requirements, results, and limitations of the actions of the courts are generally the subject of benign neglect by the public and economic and political authorities alike. This is not simply due to the separation between law and development that I have mentioned several times, but also to the strictly professional nature and the absolute independence with which this branch of government acts and ought to act. But just as this independence in the face of the vagaries of public debate is beneficial and even necessary for the performance of judicial activities, failing to look carefully at this very important function and allowing its excessive isolation from popular debate may act as a brake on the evolution of the administration of justice and its adaptation to the needs of contemporary society. The majesty of the law, its precepts and its rulings, demand that law and the institutions that create or apply it be cloaked in the necessary authority and independence. But this cannot be understood as an invitation to turn its back on society. Nowadays there is a strong popular demand for the modernization, adaptation, and streamlining of the law. Ten years ago the only participants in this seminar would probably have been ministers of justice. Today other actors are presentâ&#x20AC;&#x201D;the judges themselves. This is a consequence of the move toward gradual self-government by the judiciary, which now has a greater say in planning its own development. But this situation must be made compatible with its greater involvement in the general concerns of society and the state. The challenges that the current direction of development in the countries of Latin America and the Caribbean pose for the administration of justice are great. The IDE does not have much experience in this field. You are the experts and the specialists in these matters. There is, nevertheless, a set of issues that we have tentatively grouped into four major areas, after analysis within the Bank and dialogue with specialists. We have organized this seminar around them. We have also asked distinguished specialists in these four areas to produce documents that might serve as a framework and starting point for a wide-ranging debate among you. The first set of questions is in no way unique to the authorities that administer justice; rather, it is common to all the areas in which reform is needed: the management of the judicial branch. Apart from judges' commitment to the value of justice, the legal

CHALLENGES TO THE ADMINISTRATION OF JUSTICE

JUSTICE AND DEVELOPMENT

knowledge necessary for their decisions, and the independence with which they act, the outcome of their labor also depends, as in other public or private institutions, on the way in which the judicial branch is organized and managed. These factors depend to a large extent on the way in which judicial power is integrated into the state. In Latin America, the state ought to rank the administration of justice more highly. At the same time, judicial bodies should not feel isolated from the other branches of government. In all democratic systems there exists, more than an equilibrium, an open dialogue among the three branches of power. These three branches are, in any event, all equally subject to the judgment of the people, expressed through their representative bodies. As the judicial branch becomes, in light of this, more transparent and responsible in its operation, it also begins to claim authority to plan its own development, since no one is more aware of its needs than the judiciary itself. In addition, the state tends to offer alternatives for applying rules and solving conflicts that, while compatible with judicial authority, give the public greater access to justice and the law. These mechanisms aid in relieving the congestion of the courts. They include mechanisms for conciliation, administrative intervention by specialized government agencies, and the hearing of matters of lesser importance by other types of authority. The training of judges has its own chapter in this seminar. Many specialists believe that judges' training could be strengthened by offering specialized programs at the postgraduate level. Nonetheless, in my opinion, this alternative should not exclude the possibility of revising the teaching of law to give more attention to the analytical and practical skills that judges need. These efforts should be accompanied by greater concern for the judicial profession, systems of appointing and promoting judges, recruitment of personnel and provision of the support they require, and levels of compensation appropriate to their responsibilities. In all these matters affecting better administration of justice and its human resources, all sectors of society should close ranks around the objective of supporting the process of modernizing the law and the judicial branch. The purpose of this seminar is precisely to assist in the creation of that commitment. The process of development has transformed societies and economiesâ&#x20AC;&#x201D;and their institutionsâ&#x20AC;&#x201D;throughout the world. It has done so, too, in Latin America. These transformations make new demands on the law and the judiciary. The new demands do not arise from the economy and business alone, but also, and very specifically, from social needs such as the need for crime prevention, the protection of family values, and assistance for disadvantaged groups, including minors in unstable situations, youth, women, and others. The third session of this seminar deals with the new demands that this process makes on the courts. The rapid trend toward globalization of national economies and societies creates new challenges for international law and its application. It should not be forgotten that the law has historically been a crucial element in advancing the process of regional economic integration, a process that is very important in Latin America. The fourth section of this forum is concerned with this trend and its demands. These are some of the questions dealt with in the documents prepared to guide the deliberations of this seminar. Given the status and professional competence of the participants, I am certain the debate will be extremely fruitful. Further, I am convinced that in this, as in other areas of national life, the mere stimulation of dialogue among

those responsible for a given area is positive. In this case, the dialogue is enriched by the possibility of learning about various national experiences. I hope that in the future we will be able to incorporate the valuable experiences of other regions into this analysis. As I said at the outset, the Inter-American Development Bank has decided to make this incursion into the field of law and justice. Accordingly, we extend a particularly warm thank-you to all the participants who have come to this meeting in San Jose. I am certain that this exchange of experiences will allow the Bank to draw useful conclusions that will prepare it to act in this sector; that is, if the countries so request and to the extent to which the mandates, structure, and policies of the Bank permit us to respond to such requests. We are confident that this can be the beginning of a more systematic focus and a joint effort by the Bank and the countries to study and contribute to the improvement of relations between development on the one hand and its institutional and legal framework on the other.

LAW, JUSTICE AND DEVELOPMENT IN THE NINETIES

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Rafael Angel Calderon Fournier President of the Republic of Costa Rica

It is with great satisfaction and high hope that I join in the inauguration of this seminar on justice in Latin America and the Caribbean in the 1990s. This issue could not be more current or of a more pressing nature for our peoples today and in the years to come. We will be privileged to hear in this forum from officials of the highest political, professional and ethical caliber. This gathering, under the aegis of the Inter-American Development Bank, demonstrates once again this organization's ability to read the signs of the times and interpret the needs of the nations of Latin America. I should like to extend a very warm welcome to all of you today, and I trust that the discussions will be productive and informative. The world has embarked upon a new era, and this is nowhere more in evidence than in Latin America. The Cold War and the rivalries of ideological blocs are now relegated to the history books. Despite the obstacles and the difficulties, a new era is emerging in every quarter. A new era in which the economy, politics, and culture have taken on an international face, economic zones are being forged, and more advanced, democratic, and just societies are taking firm hold. With the arrival of these winds of change, Latin America is crossing the threshold into a decade of hope and is now firmly on the path toward development. But "development," in its new configuration, means an integrated form of progress in which economic growth will go hand in hand with social equityâ&#x20AC;&#x201D; development, in other words, with a human face. Costa Rica is very pleased indeed that the InterAmerican Development Bank has pointed to our country as an example of social advancement for Latin America and as an appropriate setting in which to launch a pilot social reform plan that could then be extended to our Latin American neighbors. In this movement toward development, the law must serve as both instrument of change and dispenser of justice. Rather than defend the status quo, the law should open the portals to a new century that will witness more humane and just societies. In short, the law should be a channel for development and never a dam holding back its progress.

Shaping Modern Judicial Systems in Latin America

JUSTICE AND DEVELOPMENT

A truly modern, global economy cannot be forged without reforms. Regulations must be eased, state inervention must diminish, the private sector must be bolstered, and economies must be equipped to compete in the world marketplace. This will necessarily entail reforms of the state and, specifically, a revamping of the judicial system. To "reform the state" is not merely to reduce its size; it is to define the state's role in the economy and in the development process generally. The state that we envisage will guide, regulate, and promote development, not suffocate, supplant, or thwart the initiative of civil society. The reform of judicial systems looms large in the task of building modern, fully functioning, just societies. Our nations need to find ways to administer justice effectively and efficiently. Modern economies require modern judicial systems, which can be developed only in concert with, and with the aid of, all the region's governments and the international organizations窶馬otably with the type of technical and financial support made available by the Inter-American Development Bank and the World Bank. This forum is a superb venue for discussion of these issues, to cast light on the different facets of the questions our countries are being called upon to address, and to explore concrete solutions. The Inter-American Development Bank, under the inspired stewardship of that exemplary Latin American, Enrique Iglesias, has a central role to play in pinpointing problems, devising solutions, and opening up new fields for international cooperation in this sphere. Once again, on behalf of the people and government of Costa Rica, I welcome you to this forum. I should like to express our gratitude, in advance, to those who will enrich our knowledge and give us food for thought here on issues of such importance for the building of truly modern nations in Latin America and to offer a special vote of appreciation to the president of the Inter-American Development Bank.

JUDICIAL MANAGEMENT

PART II

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Judicial Management

Ivan Lav ados Montes Executive Director, Centra Interuniversitario de Desarrollo

Juan Enrique Vargas Viancos Director, Corporation de Promotion Universitaria

SOCIAL DEVELOPMENT, PUBLIC POLICY AND THE JUSTICE SECTOR Modernizing the Judiciary as a Prerequisite for Economic and Social Development Law and Development In the past few years, most development schemes have sought growth and equity as concurrent objectives of the development process. Within this context, we have focused on integrated concepts such as quality of life and human development that incorporate economic, social and cultural factors. Despite this fact the justice sector is not generally included as an essential element in this context, and we do not generally consider public accessibility or the level of public satisfaction with the judicial system as relevant to the concept of quality of life and to sought-after development targets. Law per se is considered to the only extent that it establishes the operating framework for the economic system. Lately, this view has begun to change, generating a dual concept of the issue of equity that, no longer regarded solely as a macroconcept, is beginning to be understood as a basic right of each individual. International instruments and national constitutions are affording increasingly greater safeguards for so-called social and economic rights that, while not yet able to establish standard baselines, nevertheless represent important breakthroughs in that they prevent arbitrary discrimination in public access to selected government benefits and services. Within this spectrum of government services, justice services, whose purpose is basically to settle private disputes that need to be resolved by the government for the public good, are of a singular importance. Experience has shown that, even when only economic aspects of development processes are given priority, legal and justice-related problems invariably turn out to be major factors in the achievement of sought-after goals.

Chapter 1

JUSTICE AND DEVELOPMENT

The increasing globalization of country economies with the free movement of individuals, commodities and services that, more and more, is demanding a judicial system that provides efficient, streamlined, low-cost services is a good example of this point. Along these same lines, the special relevance of the judicial system to the quest for sustainable development is evident. Environmental policy and management require expedient, efficient legislation and procedures for the settlement of disputes. These are highly complex problems involving important vested interests that, in time, are destined to demand more attention from judicial services. Justice and Human Rights From the preceding, it follows that the attainment of acceptable levels of economic and social development is impossible without proper recognition and respect for basic human rights. Recognition of these rights cannot be limited solely to the incorporation of long lists of privileges in the text of our respective constitutions and legislation. We need to seek an efficient means of ensuring the effective exercise of these constitutional rights and of affording a real possibility for ensuring their observance both by the public at large and, most importantly, by the government. This is the prime function of the judicial system. In this context, the right demanding the most attention is the right to due process, given that the effective exercise of this right is a prerequisite for the enforcement of all other rights. In short, due process allows disputes between individuals or between a given individual or individuals and government to be settled by a previously established independent body through a process in which the party or parties concerned are guaranteed the right to mount a defense and to secure a judgement within a reasonable time frame. Criminal proceedings must also be bound by the principles of presumption of innocence, legality and unenforceability of retroactive or ex post facto criminal laws. The fulfillment of these requirements in specific court proceedings is possible only if such proceedings are organized in such a way as to guarantee a speedy public trial and an opportunity to be heard. Without an opportunity to be heard (or a "hearing" in the broad sense of this term), in practice, it is not the judge or court that will decide the matter, but other public officials through delegations of authority. Without a public trial, there is no real possibility of presenting a defense. And without the right to a speedy trial, it is impossible to secure verdicts within reasonable time limits. Thus, it follows that effective exercise of individual rights is closely associated with the accessibility of the justice system. This does not mean that all disputes must necessarily be settled by the courts. In fact, there is a growing consensus to the effect that courts should confine themselves strictly to disputes or problems whose nature or scope is such as to defy an out-of-court settlement by the parties concerned. In all other cases, government should provide alternative informal systems for the settlement of disputes that facilitate agreements between opposing parties for the settlement of their differences. These types of settlements, besides being quick and economical, will probably be better understood and enforced.

JUDICIAL MANAGEMENT

The Judiciary and the Federal Government

All democratic governments must have an independent judiciary that embodies the principle of the separation of powers. Let us examine this concept further to better illustrate how the judicial branch of government fits into the country's institutional framework. The principle of the separation of powers, as properly defined, does not refer to totally isolated systems with no relations or linkages with the other branches of government. This principle basically refers to a system of checks and balances in which the different branches of government must limit their respective powers to prevent encroachments and arbitrary acts prejudicial to the rights of the individual. Thus, there are numerous, different types of interfaces between the different branches of government. The separation of powers is necessary to uphold a higher principle in democratic thought, that of popular sovereignty or government by the people. This demands that the will of the people be duly taken into account in all decisions of fundamental importance to society, either directly or via representatives. It also implies that all major government policies must draw their legitimacy from this expression of the public will, with the sole exception being the observance of human rights. The system of checks and balances explains how, in many of our systems, the executive branch is a colegislative body, how the legislature may review executive branch acts, how the courts may declare laws and decrees unconstitutional or illegal, and so on. The principle of popular sovereignty, in turn, explains the participation of bodies elected by the people (the executive branch or legislature) in the appointment of judges and in judicial policymaking. This illustrates why the judiciary requires cooperation from different executive agencies such as police departments, prison systems, centers of medical and technical expertise in carrying out its noble functions and responsibilities, or why this branch of government has links with independent agencies such as controller's offices or the constitutional court. Thus, we need to develop an explicit judicial policy with the primary goal of ensuring that the courts focus their efforts on what are perceived as essential social functions and of facilitating due and proper relations and cooperation with associated agencies and institutions. A coherent judicial policy will facilitate better and more efficient integration of the Judiciary into the functional organization of government. Thus, it is important that the Judiciary have good, trusting relations, not only with the Minister of Justice, but with financial and national planning ministers as well. The Role of the Judiciary in its Own Development Any Judiciary with real power must be capable of formulating its own development schemes. Experience shows that a unit or system incapable of planning its development from within is controlled and regulated from without.

The Justice Sector as Part of the Machinery of Government

JUSTICE AND DEVELOPMENT

To accomplish this, the Judiciary must be able systematically to perform indepth, impartial assessments and empirical studies. The Judiciary itself must critically examine system constraints and opportunities and corresponding strengths and weaknesses as the basis for undertaking necessary reforms. Thus, judicial reform must be based on a continuous process of evaluation and studies of accomplishments and failures. This can help overcome fear of expected changes rooted in judicial selfsufficiency and an independent analytical and decision-making capacity. The main planning tool is the budget system. The stability, level and composition of the judicial budget is of crucial importance in any development plan. The judiciary itself should be actively involved in the judicial budgeting process by maintaining good relations with competent government finance agencies. This in turn requires that it have systematic specialized technical support to facilitate meaningful dialogue with decision-making bodies. In general, the current situation in the region is quite different from the ideal described above. Most budgets tend to express spending in aggregate terms, providing no breakdown whatsoever and, thus, ruling out any possibility of taking advantage of this efficient planning tool. Associated with this is the widely held belief that the judiciary should have budgetary self-sufficiency that, according to its advocates, is essential to a genuinely independent judicial system. Possible approaches include the earmarking of fixed percentages of the federal budget (as in the case of Costa Rica and Paraguay) or independent funding through the collection of certain types of taxes or as a percentage of other funds (as in Argentina). This strategy poses a number of problems. First, it could impose contractual constraints on sector development. Second, it hinders the design of creative projects and initiatives and discourages social support of judicial development programs. The main challenge is to develop well-founded programs and projects that generate public support and the support of competent decision-making authorities. A sector this small should be able to increase system resources significantly through an emphasis on quality and efficiency. These plans should uphold general principles ensuring the due and proper use of government funds. Thus, a focusing of corresponding spending on the neediest areas and groups will be an important measure of successful management. Good economic and budgetary policy is not solely a matter of increasing revenues. It is equally important that the judiciary reduce and prioritize spending in furtherance of important goals. JUDICIAL MANAGEMENT: CONCEPTS AND PROPOSALS Facilitators of Change As discussed in the first part of this paper, the rule of law requires the existence of a Judiciary that competently fulfills its essential role. A sector development strategy capable of overcoming existing constraints must identify and promote the leading facilitators of this process. Problem-solving in this sector has traditionally been perceived as essentially a

technical task to be entrusted to members of the legal profession. This is also true in other areas but, in the justice sector, this belief is more common due to the variety of roles generally taken on by law practitioners within our society and their resulting importance and stature. Thus, for example, besides serving as judges, court clerks and legal practitioners, attorneys are actively involved in other branches of government and in a broad spectrum of domestic and international affairs. Paradoxically, this situation has adversely affected the systematic development of the law. To begin with, the fact that law and justice-related problems affect all segments of society and that, likewise, their solution benefits society as a whole has never been adequately appreciated. Procedural and organizational reforms of the court system tend to be made more in the interests of the legal profession per se than in the interests of the general public. Moreover, and as a corollary of the above, there is a sense of alienation within large segments of society from tasks and problems associated with this sector, as illustrated by the indifference of the media to developments within the judicial sector. Concern for this sector seems to be generated only by police chronicles and by particularly scandalous events. By the same token, concepts and methods associated with other disciplines such as economics, sociology, systems engineering, psychology and management, which are fundamental to an adequate assessment of reality and to the introduction of necessary changes, are being overlooked and are not being taken advantage of. Finally, but perhaps even more importantly, the oppressively formal legal training system produces professionals who tend to resist change. Likewise, rather than focusing on normal system operating mechanisms, legal studies tend to concentrate precisely on exceptions to the rules. As a result, problems are addressed by legal practitioners seeking to cover all possible contingencies, which diverts attention from and may even jeopardize proper treatment of the more common problems brought before the system. Added to their inadequate training are the corporate, professional and economic interests of legal practitioners, all of which are contributing factors in their resistance to needed changes. These contentions demonstrate the need to change our approach to problemsolving in the justice sector. It is essential that these problems be discussed in an impartial manner with the community as a whole, and that the discussion be based on empirical data, with an interdisciplinary approach. It is equally important to know how system clients perceive its limitations and possibilities for change. The few available studies of this issue reveal the ease with which system clients can identify major problems and propose means of solution. Efforts to modernize the justice sector should focus on forming a bona fide public consensus on the administration of justice, which should be embodied in explicit judicial policies. International cooperation organizations can make a meaningful contribution and play an important role in the process of modernizing the justice sector. Our countries have ample experience with the way international cooperation has been predominantly directed at certain development areas: the establishment and strengthening of organizational systems and scientific, technical and operational areas. For a number of reasons, this type of cooperation has always been extremely limited in the justice

JUDICIAL MANAGEMENT

JUSTICE AND DEVELOPMENT

sector, where it has been focused primarily on protecting the most openly threatened rights of the individual. In the past few years, a number of cooperative activities have been undertaken in Latin American countries such as Chile, Colombia and Costa Rica. This cooperation has underscored the transcendent importance of the issue. These projects, pertaining to the judicial infrastructure, the training of judges and court officials, and the management of the judicial system, should be analized in depth in order to understand individual experiences, their corresponding restraints and possibilities. Target Areas and Courses of Action The task of modernizing the justice sector should be approached from the perspective of desired objectives and available tools for the achievement of such objectives. Below are the main courses of action, which, while important, are by no means exhaustive. Organizational Issues The reforms in this area are designed to enhance the efficiency of the judicial system as a whole and the internal efficiency, self-sufficiency and independence of judicial bodies. Any changes on this level will clearly have a major impact on strictly administrative functions. Positive changes will foster increasing decentralization of the internal decision-making process, a sure sign of confidence in individual system components, which, in turn, should promote greater flexibility and responsiveness to user needs. Procedural and Substantive Reforms As we have previously indicated, it is vital that we safeguard the right of due process. In addition to formal requirements, there must also be material elements that ensure the effective exercise of this right. Our substantive laws need to be reconciled with the provisions of international instruments and integration and complementary agreements. Obviously, these changes represent national responsibilities that should be promoted and implemented by the appropriate governmental agencies. Judicial Training and Refresher Training Systems These systems should be designed to develop and enhance the social role of judicial officers, prepare leaders within this sector to promote and support an ongoing process of development, and change and train judges to competently discharge their functions. Accessibility of the Judicial System We need to devise new means of settling disputes that are more creative and efficient than our current procedures, which, in many instances, only serve to pile case after

case on an already overburdened system on the verge of collapse. In addition to alternative systems for the settlement of disputes, we also need to develop new basic legal information and legal aid systems and procedures to improve the effectiveness of standard procedures by, among other things, simplifying and making legal rhetoric more comprehensible. All these issues are of fundamental importance, as progress in these areas would enable the court system to devote more time to matters of genuine social importance and help more people previously marginalized or excluded by judicial systems to settle their disputes satisfactorily. Judicial Administration The need for a major effort to improve administration of the judicial system and corresponding facilities is evident. Given the importance of this matter and the significance of this effort, the following section of the paper is specifically devoted to an examination of the concept of judicial management. In each of the areas and issues discussed above, we find weaknesses and constraints in the following: assessments prepared in an effort to size up problems, determine their causes and establish prognoses; technical capacity needed to develop proposals for the introduction of innovations; expertise needed to implement necessary innovations; and prevailing legal attitudes. In this respect, the most innovative programs that are being carried out in the region should be well known. Decision-making on sector plans and programs should focus on their potential multiplier effects for the promotion of subsequent and more profound changes. The existence of a substantive, practical capacity for the implementation of integrated plans and programs in all areas is unlikely. Judicial Management Background In the justice sector, it is not easy to delineate judicial functions clearly and distinguish them from administrative functions. Judicial acts involve the rendering of a decision in a disputed matter. Obviously, this function is shared by all procedures or formalities that materially facilitate the rendering of a decision, such as the conduct of formal proceedings, the presentation of evidence, the pronouncement of a verdict, etc. On the other hand, administrative acts have to do with the organization and forms established to make these proceedings and decisions possible and with the administration of the resources required to ensure that they work properly. Nonetheless, in many cases, the organization of these types of formalities is essential to the existence of due process, in which case, by establishing judicial procedure, it ceases to be a purely fortuitous system element controlled by lawmakers. In other words, essential tools for the administrative organization of the justice system are in someone else's hands, imposed on it from without. Moreover, many of our laws

JUDICIAL MANAGEMENT

JUSTICE AND DEVELOPMENT

leave no room whatsoever for regulating service demand, in effect requiring that judicial services be available to everyone, at any time and in any form. This is why judicial management is such a complex issue, particularly in Latin American legal systems that pay far more attention to the image of the court than to that of the individual judge. Even so, the organization of the justice system should draw on modern management concepts associated with a perception of justice, not only as the embodiment of sacred values and goals but, more concretely, as a service to be afforded to anyone who resorts to the court system for the prompt, effective solution of a particular problem. An impersonalized view of justice that disregards the very needs for which the system was established is an endless source of injustice. This is why solutions to problems in this area should take into account the opinions of all system actors and clients rather than being based solely on the opinions of judges. More importantly, this same criterion should guide the organization of administrative machinery in areas that have traditionally been left to the discretion of the judicial system itself or, in other words, areas specifically designated by lawmakers as falling within the sphere of competence of the courts or in which the legislature has failed to pass applicable legislation and which are therefore left to system actors to decide. This latter area is, by far, the most important, with the most direct impact on the expediency of judicial proceedings, on the treatment of system clients and on the realization of their expectations. Thus, efforts in this respect should focus on increasing the amount of time spent by judges on judicial functions as the system's most valuable and scarce asset. We need to take immediate steps to release judges from administrative tasks to the greatest extent possible. This is true because our experience shows that most of the judge's day is currently spent on these tasks rather than on the settlement of controversies. Keep in mind that any strategy to improve administrative efficiency within the Judiciary must contemplate innovations in pertinent substantive areas. A strictly administrative solution will only produce a false sense of innovation, postponing the deep-seated changes required by the judicial system. Improving judicial management should not be construed solely as a matter of doing more and doing it better. It also requires innovation and creative solutions. Experience has shown that addressing the problem of delays in judicial proceedings simply by creating more courts does not solve backlog problems. It would clearly be better to endeavor to study disparities in the performance of different courts and capitalize on the experience of the more successful ones. We need to carefully consider the significance and use of modern technology. Technology is only a decision-making tool. It is not a direct solution to existing problems. However, this does not mean we should not make needed administrative changes without previously formulating a comprehensive reform plan, which we may never get the chance to do. Moreover, we need to take advantage of fleeting opportunities that present themselves from time to time for the direct introduction of corresponding innovations. What we are trying to say is that we should not lose sight of our final objectives and that any and all changes made should be functional and consistent with these objectives.

JUDICIAL MANAGEMENT

Successful judicial management is largely dependent on the existence of appropriate functional structures. There is absolutely no reason to merge judicial and administrative bodies. It is important that both have their own channels, while taking into account the functional nature of the administrative bodies. An adequate, efficient and streamlined decision-making administrative structure that embodies the opinions of judges, other system actors and system clients in and that is equipped with the necessary technical support is vital to sector modernization policy. To accomplish this, we need a body within the judicial system that will serve as the focus of all pertinent decision-making powers and that will be capable of implementing duly-designed policy. The creation of such a body is also crucial to the optimal use of sector resources and to relieving judges of administrative tasks. At the same time, this body will prevent key decisions from being imposed on the judiciary from without, which may not be based on complete facts. With this in mind, the Latin American countries have been establishing specialized administrative offices within their Judiciaries with the following basic objectives: • To plan the short-, medium- and long-term management of all facets of court administration and to conduct or arrange for the contracting out of studies and empirical research on the workings of the Judiciary. • To draw up the sector budget, including the collection of relevant data from all system components, the setting of priorities and its presentation to appropriate decision-making authorities. • To administer budget resources and financial management programs, identify elements of financial management suitable for decentralization, regulate spending and establish control procedures. This includes adequate accounting and information systems, rules for the management of proceeds from court recording fees, investments, disbursements and clearly defined rules and policies for the collection, reporting and use of fines generating interest and other income. • To develop centralized and decentralized procurement procedures and logistics requirements as dictated by the needs of efficiency and economy, in order to provide the court system with appropriate administrative and operational support. • To establish personnel management systems for support staff, including personnel lists, job specifications and qualifications for prospective job applicants, systems for the allocation of responsibilities, pay levels, contracting procedures, performance evaluation procedures, promotion and disciplinary procedures, service records and career development decisions. • To develop standards for physical installations and facilities for all court-related needs, including inspections, maintenance, repairs and standards for decentralized construction and implementation insofar as possible. • To establish systems for the production of standard court statistics and monitor the accuracy of corresponding statistical data. • To design computer systems for the entire judicial sector, develop legal information systems through the creation of libraries or data banks, establish links with other

Administrative Bodies

• • • •

JUSTICE AND DEVELOPMENT

government or private data banks and incorporate the use of new technology in dayto-day judicial operations. To develop, disseminate and regularly update administrative and operating manuals and standard forms. To develop standards for decision-making on crucial issues. To provide courts with technical assistance in administrative areas. To coordinate sector modernization efforts and arrange for the financing of specific projects.

Many of these tasks can be decentralized, which would help improve data collection efforts. In general, most units tend to spend all budget appropriations for fear of being given a poor performance rating and being excluded from the following year's budget. In attempts to remedy this situation, the establishment of incentives for better management of budget resources such as the financing of additional top-priority plans, for example, has produced excellent results. The optimization of management efforts should not be confined strictly to overall management problems at the sector-wide level, but should also extend to the management of the internal affairs of each individual court. One of the most promising areas for the introduction of administrative reforms involves addressing duplications of efforts by different courts, which could capitalize on so-called "economies of scale." In general, courts sharing the same physical facilities could also be organized in such a way as to share certain common services, which could lead to substantial reductions in costs and improvements in efficiency. Likewise, the standardization of individual court procedures modeled after the system's most successful courts, and a study of judicial proceedings with a view to speeding up case flow, offer other possibilities for improving individual court performance. INTERNATIONAL COOPERATION AND JUDICIAL MANAGEMENT Part Three seeks to indicate the possibilities international cooperation programs could have in the area of judicial management. The following propositions are based on the authors' experience and obviously do not represent the policies of the IDE. Judicial Management Priorities We would like to briefly discuss a few of the most important specific areas of judicial management in the context of the foregoing background information. Human Resources Within the judicial system there are at least two coexisting personnel statutes, one for

officers with judicial functions and another for administrative personnel whose function is to support judicial officers. The statute for judicial officers establishes procedures for the selection and promotion of judges and the assignment of corresponding functions and responsibilities. These substantive elements are vital to the independence and impartiality of the judicial system and are often governed by constitutional provisions. The situation of administrative officials is completely different. Their personnel statute does not address substantive issues and, as a result, is geared to standards of administrative efficiency. Despite this fact, systems and criteria are commonly lacking. The explanation for this goes beyond a general lack of modern management systems. It also includes the fact that often these officials discharge functions rightfully reserved for judges, which, on occasion, has led to a totally improper commingling of administrative and judicial functions. Thus, it is vital that we establish a personnel management system with a clear distinction between administrative personnel and judicial officers. This is especially important considering that an estimated 85 percent of judicial system funding throughout Latin America is earmarked for personnel. Attaining this goal requires a clear concept of the number of officials required and their specific roles. This information should serve as the basis for the establishment of impartial, competitive and transparent selection and promotion procedures that favor merit over seniority. It also requires a coherent pay policy based on the importance and degree of responsibility associated with the functions assigned to different officials. Lastly, it means improving routine decision-making mechanisms in personnel management areas ranging from more practical matters such as the granting of leave and vacations, to more substantive issues involving accountability and, possibly, the dismissal of a particular official. Financial Resources Budgeting and the control of spending by the judicial sector have gradually become internal functions. Ultimately, it is the proper use of this tool that will determine the ability of the judiciary to attract increasingly greater financing, which requires not only preparing interesting projects but, at the same time, demonstrating an adequate technical capacity to prepare and appraise these projects and mastering the most upto-date financial management tools. The transparency of this process and of the spending process is another area in need of continuous improvement and in which much remains to be accomplished. In the future, as in any other area of government, the judicial budget system should foster increasing decentralization, delegating authority to the various units comprising the judicial system to set their own spending needs and priorities and to invest corresponding funds in the manner best suited to meet their needs. In this respect, decentralization also implies streamlining the administration of funds at the individual court level. Systems characterized by flexibility and decentralization must be backed up by especially efficient control procedures. This in turn makes a refinement of internal auditing systems essential.

JUDICIAL MANAGEMENT

JUSTICE AND DEVELOPMENT

The judicial systems of most Latin American countries are suffering from serious shortages of physical infrastructure. There is no question that investments in facilities and equipment must be stepped up. Proper programming in this area should include methods to improve the use of existing resources, primarily through proper maintenance, remodelling and repairs. We also need a coherent decision-making system with regard to new construction and building use. The planning of judicial system facilities must be properly coordinated with the planning of related facilities such as prisons, registry offices, medical centers, etc. Organization and Procedures This area includes the following main elements: Information, Statistics and Computer Technology. Information systems furnishing legal information, information in other related areas and facts affecting court decisions are vital to the smooth operation of the court system. Specialized libraries and data bases, particularly regularly updated jurisprudence data bases, are equally important, as are links between the Judiciary and its various supporting agencies that may provide quick access to pertinent, accurate information. Court development programs and projects require an informed study of existing conditions, which in turn give rise to the need for the production of timely, reliable statistical data. In general, courts view statistics as a bureaucratic task with absolutely no relation whatsoever to the decision-making process. The production, processing and use of statistical data should be an ongoing process and not a mere formality observed solely on occasion. A comprehensive statistical information system should include indicators of all major system-evaluation factors such as case flow, the number of pending cases, the length of trials (broken down into their different stages and by type of case and type of court), as well as financial management and general administrative management indicators. The production of genuinely useful statistical data requires due consideration of the opinions of all potential users in determining what information to collect. This includes the opinions of those who make judicial policy and evaluate job performance and of academic institutions interested in pursuing research in this area. Independent random monitoring systems should be established to ensure that all information is reliable and is not being manipulated in any way. The use of computer systems in day-to-day court operations will unquestionably facilitate the production and processing of relevant data and its use for court management purposes. Computers can be used for all types of operations, with software ranging from basic word processing programs and programs for the generation of standard texts to highly complex case tracking programs that can provide users with up-to-date information on the status of a particular case, pending proceedings and a step-by-step breakdown for the automatic generation of daily work schedules for interested users. We could also develop even more sophisticated specialized programs capable of

Physical Resources

generating a final judgement in routine cases based on information fed into the system by the user. However, in no event would such programs dispense with the need for judges who, alone, would choose between the various options available in the course of the process of rendering a judgement, with the ability to establish their own parameters for evaluating corresponding arguments and to modify the computergenerated product or dispense with it altogether if it ran counter to their personal convictions. Procedures and Standards. The development and implementation of standard forms and procedural handbooks for the performance of administrative tasks is also of vital importance. Administrative handbooks not only facilitate the establishment of internal systems and responsibilities, but afford an opportunity to actively involve all interested parties in the organization of a particular system. One of the basic tasks of the Judiciary and the court system is to set decisionmaking criteria and parameters. The existence of standards is important, for example, in making decisions with regard to the creation of new courts, which must take into account a host of relevant factors such as population, distance, communications quality, nature and type of suits generated, alternative systems for the settlement of disputes. It is also extremely important to develop models for the establishment of criteria for district courts as distinguished from appellate courts. As far as existing courts are concerned, we need to examine the different types of proceedings demanding their attention and the length of cases while, at the same time, studying the various internal and external factors contributing to disparities in court performance. Recordkeeping. This is one of the most time-consuming tasks of judicial officers, yet a task whose importance to overall system operation is undeniable. Proper management of records of proceedings and other trial data is vital both to the reliability and the proper dissemination of information. Recordkeeping activities could be greatly improved by technological innovations such as computerization and the use of optical scanners or microfilm although, without a doubt, the greatest breakthrough lies in a shift to oral proceedings. However, even with these innovations to reduce paperwork and the duplications of records that can overload the system, the maintenance of secure backup facilities will continue to be of vital importance to the smooth operation of the court system. Cooperation Activities Types of Activities Each of the areas discussed above as an element of the concept of judicial management could benefit from cooperation activities at both the countrywide and regionwide levels, which are essential to sector modernization efforts. Examples of pertinent cooperation activities include the execution of studies and the development of supporting materials that make the promotion of well-founded

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change possible. This change must therefore be based on empirical research and case studies. The data derived from studies could be used as the basis for direct investment activities in both physical infrastructure and in innovations in management systems. Current shortages of facilities and equipment will require substantial investments within a coherent sector planning framework. Thus, external financing through soft loan windows could complement available domestic funding and channel these funds into efforts in pursuit of socially significant goals. Again, the successful introduction of organizational and procedural reforms in the judicial sector requires not only a technical approach but also a consideration of the legal structure and, most importantly, of the knowledge and attitudes of the major players involved in the process of change. Thus, pilot projects are the best means of making purposeful changes in system operations. The advantages of this approach are undeniable. Changes on a small scale pose no risk to the system as a whole in the event of failure and, at the same time, allow us to begin our efforts in those areas most conducive to innovation and facilitate adjustments during the course of the implementation process. In order to achieve desired reforms, it is of the utmost importance to evaluate the effects of pilot projects that have already taken place in the area of judicial management. The proper training of all parties concerned is vital at all stages of this process, not only to teach them how to use new technology or procedures but also in order that, on the most basic level, they can appreciate the need for scheduled changes, as well as their personal role in ensuring their success. Well-designed training programs can also help fine-tune new systems based on suggestions from interested parties. The success of these activities requires special emphasis on the proper preparation of those responsible for the dissemination of new technology, on preparing simple marketing materials and on establishing a comprehensive system that includes each and every individual in need of training, without distinction, in the cases in which distance training has proven especially appropriate. In addition to these tasks in specific areas of judicial management, there are a number of more general activities that should be undertaken and in which international cooperation could be useful. • Opinion polls on the public's perception of the services provided by the justice sector. Conducted in accordance with all corresponding technical specifications, opinion polls could be an excellent vehicle for promoting processes of change and justifying their need and for focusing efforts on areas perceived by the public as most inadequate. We also suggest polling members of the legal profession involved in the workings of the justice system. • Regional exchanges and consulting services. One of the best ways of appraising new projects is by sharing the experiences of other countries with similar cultural and legal traditions and socioeconomic conditions in the midst of ongoing processes of change in the same area. These types of exchanges through business travel and visits from experts or consultants help promote the dissemination of successful models and develop new facilitators of modernization plans. • Support for the establishment, strengthening and decentralization of specialized administrative offices.

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Mechanisms for Implementation Direct Action As we see it, necessary resources for the implementation of a large portion of the activities discussed above should be channeled directly through competent official agencies. The success of these activities is largely dependent on decision-makers controlling the destiny of the justice sector. Likewise, their implementation is subject to the physical accessibility of the agencies and institutions targeted by corresponding changes. The degree of direct government intervention via its administrative machinery will depend on the level of independence enjoyed by the Judiciary in each particular country. The primary responsibility for providing justice services required by the public lies with the government, which, accordingly, should play an active role in the planning and coordination of activities within the justice sector and in the implementation of investment programs. Even in countries with independent court management systems, the executive branch of government is actively involved in the negotiation of loans or grants, which, again, underscores the need for active cooperation with administrative authorities within the judicial sector. Moreover, the executive branch is also responsible for reconciling judicial reforms with reforms in associated executive departments. However, the courts themselves and, more specifically, their specialized administrative offices are primarily responsible for the implementation of modernization plans and the handling of activities in furtherance of these plans. Arrangements with Specialized Organizations In most Latin American countries, there are a number of private, nongovernmental organizations and university departments involved in judicial affairs. It would be both expedient and extremely advantageous to use the capacity and experience of these organizations in implementing certain activities that might benefit from international support. In some cases, these organizations offer visible advantages over direct action. These advantages are the result of their more flexible operating procedures and their resistance to pressure from within the justice system. These types of arrangements also involve new organizations and participants in the necessary process of change. Competitive Bidding The implementation of technical activities could be based on competitive bidding processes in which, having established all elements of the activity in question and all

As previously indicated, the professionalization of administrative management and the decentralization of decision-making in this area are essential tools for streamlining court management.

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corresponding characteristics and restrictions, an open invitation to bid could be issued to interested organizations and experts in that field. This would also help promote an interest in judicial affairs among qualified organizations and experts. The use of competitive bidding in other social development areas has produced excellent results. These implementing mechanisms may be used together or separately, depending on the nature of the activity in question, the volume of resources involved and, obviously, on the need for confidentiality in the implementation of specific activities.

Alternative Methods of Conflict Resolution under Common Law

William Douglas High Commissioner of Barbados

I welcome this invitation to participate in this seminar sponsored by the InterAmerican Development Bank on Latin American Justice in the 1990s: Challenges and Opportunities. I believe that the due administration of justice is a significant factor in economic and social development and that governments, the legal profession and the universities all have a role to play in improving the efficiency and the effectiveness of the justice system in each of our countries. Others better qualified than I will speak of the challenges facing the courts in Latin America and the Caribbean. I shall be content to consider measures that individual countries can adopt to expedite the work' of the courts and to improve the quality of justice available to the public. The measures have as their object, the reduction of the number of cases filed in the formal justice system and providing an expeditious and inexpensive method of dispute resolution for certain classes of cases. I propose to deal with these measures under three separate but related headings: Conciliation, Arbitration, and Specialization. CONCILIATION The object of any conciliation service must be to settle disputes satisfactorily, quickly and with a minimum of expense to the parties. There must be total impartiality, otherwise the service will not attract and maintain the public's confidence. It must be seen to be independent of the government and of the formal justice system. It should be perceived as a nongovernmental organisation providing a public service performed by persons having special skills or training in the resolution of disputes. Those persons need not be lawyers but they must have a grasp of the principles of law effecting the community as well as experiences of how those principles should be applied. Conciliation bodies may originate from a variety of sourcesâ&#x20AC;&#x201D;a citizen's advice bureau, a farmers' cooperative, a church group, a charity, a legal aid clinicâ&#x20AC;&#x201D;but

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whatever its origin, it must operate on the basis that both parties to a dispute freely consent to have the matter referred to conciliation. The rules governing conciliation are usually very flexible. Normally there would be two distinct phases. First each party would make a general statement as to its position; at this stage the issues will become defined. In the second phase, the first conciliator would attempt to steer the parties towards a solution which is in keeping with the facts and is fair to both parties. The conciliator would then give his reasons, record the decision and have it acknowledged by the parties. Certain types of disputes are more amenable to the conciliation process than othersâ&#x20AC;&#x201D;for example, contracts for services when the amounts involved are small, tenancy disputes, labour disputes and family land disputes. The main advantage conferred by an efficient and widely accepted conciliation service would be to remove a large number of cases from the formal justice system, thus freeing the courts for the work they do best, adjudicating on the constitutional and public rights and obligations of citizens. Recent experience in investigating the labour relations system in the Republic of South Africa has brought home to me the value of a highly developed conciliation service. In that country where the Labour Relations Act provides for a hierarchy of industrial courts with intricate and time-consuming procedures, companies and trade unions have agreed to submit their differences to a nongovernmental conciliation body rather than fight their way through the pitfalls of the statutory system. Conciliation is swift, straightforward and satisfactory to the parties. There is no reason to believe that an equally efficient conciliation service would not produce equally good results in other areas of conflict and in other countries. The costs of running a good conciliation service would be modest and could be met by nominal fees payable by the parties, which should be nominal, and support from public interest groups, citizens' associations and charitable institutions. ARBITRATION There is a lot to be said for allowing parties to a dispute to choose their own judge. The practice dates from ancient Greece. Arbitration is seen as a method of avoiding the delays inherent in the formal justice system. It also allows a level of expertise in the subject matter to be brought to bear that is not available in the general court system. It is designed to offer an impartial and relatively simple method of dispute resolution. In many domestic contexts and in international business disputes, arbitration attains these goals, providing a method of dispute resolution that in many respects is superior to the processes of the formal justice system. From the perspective of developing countries and their commercial enterprises, however, the fairness and the benefits of international arbitrations are not beyond question. Many transnational corporations remain unwilling to make direct investments in developing countries if these countries require that disputes should be taken to the local courts. They consider, on the whole wrongly, that reliance on the impartiality of the local courts is too great a risk. So they insist that business disputes be transferred to a neutral venue, either New York, London, Paris or Geneva. This has

meant that international arbitrations have taken place under the auspices of the International Chamber of Commerce or the American Arbitration Association or some similar organisation. Among the ways in which developing countries are disadvantaged are the selection of arbitrators, the forum, and in the costs of retaining and supervising legal representatives. It is not unusual for each party to appoint a national from its own country as arbitrator. But unless the national appointed by the party from the developing country is a person with an international reputation, he will be at serious disadvantage insofar as familiarity with the workings of international arbitration are concerned. If the nominee of the party from the developing country is seen to lack the stature of his colleagues, the interests of the party that appointed him will not be well served. And it is for this reason that parties in developing countries often appoint arbitrators from developed countries. It is also expected that if the contract specifies that the law of the contract is that of a developed country, the chairman of the panel will tend to be someone from that legal system or one closely akin to it. The choice of a forum in a developed country has certain consequences. A lengthy arbitration will impose large costs on the parties. The arbitrators' fees and lawyers' remuneration would normally reflect the level of fees in the forum country and have to be paid in the currency of that country, which could create difficulty for a country with limited access to foreign exchange. It is in the light of the difficulties faced by developing countries in international arbitration that I welcome the work done by the Caribbean Law Institute under the guidance of Professor Griffith of the University of Florida at Tallahassee. Model legislation has been drafted in order to provide a single international arbitration regime for all of the states comprising CARICOM. This draft legislation would apply the UNICITRAL rules to international arbitration and would specify the circumstances in which the local courts could intervene in the arbitration process. This single regime would replace a multiplicity of different laws in the different territories governing international arbitration. It is clear, too, from the work of the Caribbean Law Institute that setting up a single system of international arbitration is not enough. There must be regional centres for supervision and control and for the training of arbitrators. Here, too, governments, the legal profession and the universities can contribute to the establishment of such centres. If international arbitration is to be encouraged to use the services available in the region, the centres must be perceived as excellent. This will inspire and maintain the confidence of businessmen from outside, as well as inside the region, and dispel the distrust that transnational corporations have for the region's legal institutions. One of the criticisms of international arbitration as it is practiced at present is that it tends to ignore the legitimate regulatory interests of the concerned state. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards could mitigate the potential bias inherent in international arbitration. In particular the convention reintroduces broader concerns of justice by empowering local courts to deny enforcement of international arbitral awards that are rendered contrary to "public policy." Meaningful review of arbitration awards by enforcing courts would facilitate international commercial transactions and emphasize the advantages of arbitration.

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In regard to arbitration at the national level, the problems are fewer. Most of us who are or were part of the formal justice system have had to deal with matters that could have been dealt with by an arbitrator. I need only mention building contract cases in which a skilled professional arbitrator could dispose of the case in a single day whereas it would occupy the court for a week or more. Similarly, insurance cases can be more speedily dealt with by arbitration. In establishing arbitration centres and bringing arbitration within the reach of most litigants, the government, legal profession and universities will contribute to providing an effective method of dispute resolution while at the same time relieving the formal justice system of a large backlog of cases, thereby freeing it to devote more time and resources to the work which only the courts can do. SPECIALIZATION The third limb of my suggestions for improving the dispute resolution process is specialization. This is not a new concept. There has always been a degree of specializationâ&#x20AC;&#x201D;a Supreme Court with its separate Chambers, a High Court with its separate divisions. But as laws become more complex and factual situations multiply, there seems to be a need for more far-reaching specialization. When it is desirable in our countries to bring the adjudication of rights into the localities where people live and work, specialized tribunals would be most appropriate. In matters in which custom and local practice are at issue, such as in disputes over land and water rights, local adjudication seems to be more appropriate. Administrative courts have been established in a number of countries to hear appeals of administrative decisions made by a variety of agencies. Family law matters are another area which commands itself to specialized adjudication. There is a special need for promptness in disposing of these cases and the need for applying norms specifically applicable to family matters. The volume of litigation in a given subject area will determine the advisability of establishing a specialized adjudicative body. When a court system of general jurisdiction is strained by the size of its case load, and all reasonable efforts to reduce that load have already been made, the authorities responsible for the judiciary must decide either to add new general courts, to increase the size of the general courts, or to transfer selected categories of cases to specialized courts. The third alternative carries with it the benefit of establishing centres of expertise where the cases transferred can be better and more speedily dealt with than in a general court. One result will be that the specialized courts will develop their own procedure best suited to the type of case with which they deal, thus avoiding much of the delay caused by the procedure followed in the general courts. The end result will be the efficiency and consistency that only a specialized court can bestow. The subject matter with which specialized courts may; be established will vary from country to country. There is no general rule. The decision to establish specialized courts will depend on how each legal system views the needs it has to meet. But perhaps needs identified in other countries might indicate areas of possible action. Apart from administrative courts and family courts already mentioned, land tenure courts and labour courts come to mind, as do tribunals dealing with patent cases, the

environment, immigration cases, tax cases, social security cases, and cases involving broadcasting regulations. Governments would normally consult the legal profession in establishing specialized courts or tribunals to deal with particular subject matters. And the legal profession would probably encourage its members to specialize in certain kinds of cases in order to provide a better service for their clients. And the universities, too, by their training of new practitioners, the retraining of those already in practice, together with their research will keep the jurisprudence of these specialized courts under constant review and ensure that proper judicial standards are maintained.

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Bodies that Govern and Administer the Judicial Branch of Government in Latin America

Hector Fix-Zamudio Researcher Emeritus of the Institute of Legal Research at UN AM President of the Inter-American Court of Human Rights

INTRODUCTION In the post-World War II period, one replete with social, political, economic and cultural change, it became obvious that the legal systems would have to be modified —sometimes even radically—in order to assimilate and channel the changes under way in other realms. Among those changes made to the legal systems was the introduction of institutions to improve the methods by which the judicial organs are governed and administered, given that the traditional institutions were ill-suited to contemporary demands. In effect, there are two major systems by which courts are governed and administered. One is the Anglo-American or common law system, premised upon the independence of the judges and the courts, which entrusts the governance and administration of judges and courts to higher-ranking bodies within the judiciary. The other system is the one most prevalent in Europe, where the most important functions of selecting and appointing personnel and monitoring the courts are in the hands of a department within the executive branch (i.e., the Ministry of Justice). Both systems have had an influence on the Latin American countries. While Latin American states have given their courts considerable latitude to govern themselves and manage their own affairs, they have also established ministries or secretariats of justice that share these functions with the judiciary. The result is occasional mutual interference. In fact, it was executive encroachment upon the authority of the judiciary that led to transitory Article 14 of the Mexican Constitution, enacted on February 5, 1971, expressly to abolish the Secretariat of Justice, which has never been reestablished. Given these problems, it is understandable that the administrative reforms to the judiciary should begin within the European systems, which, following some earlier attempts, were established within the constitutions adopted in the post-World War II period, as demonstrated in the case of France, Italy and Portugal. Later other European

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countries—and more recently some Latin American countries—instituted changes in favor of the so-called mixed systems, which, as said before, couple Anglo-American and European influences. With this emerged the so-called Superior Judiciary Councils, bodies that ultimately curb the traditional powers of the ministries of justice and give the judiciary the basic powers necessary to govern its own affairs. This has come to be known as "self-governance of the judiciary." The Judiciary or Magistrate Councils differ in terms of membership, functions and powers. On the whole, however, they have been entrusted with selecting and nominating judges and magistrates (and even, on occasion, directly appointing them); with overseeing the judicial service, including promotions and transfers; and with certain disciplinary functions vis-a-vis judges and magistrates. While these councils are not without their problems, which they endeavor to correct, generally speaking they have been a good solution to the complicated problem of governing and administering today's courts, whose increasing numbers and areas of specialization only compound the problem. They have also made the judiciary more independent of the executive branch of government by limiting the traditional powers of the ministries of justice to those that concern the necessary relations between the executive and judicial branches. This simple and somewhat cursory study will briefly examine the emergence and consolidation of the governing and administrative bodies known as judiciary councils first in the European systems, as previously mentioned. It will then outline the process by which they gradually found their way into Latin American legal systems, even at the constitutional law level, a process that has gained momentum in recent years. EMERGENCE OF NEW INSTITUTIONS TO GOVERN AND ADMINISTER THE COURTS IN CONTINENTAL EUROPE As noted above, the constitutions enacted in Europe at the end of World War II and thereafter introduced a new body, called the Judiciary Council, as a means to curb the traditional powers of the ministries of justice. The latter were regarded as a tool used by the executive branch to meddle in and control the workings of the courts, thereby undermining the latter's independence. In the classic book by the scholar R.C.K. Ensor1, the author pointed to the overwhelming influence that the ministries of justice had over courts in Europe. Though judges were and are irremovable, their promotions and transfers were decided by those ministries. This left the judges' fate in the hands of the executive branch, which exercised a controlling influence detrimental to the independence of the judges. There was some doubt as to whether there really was a true judicial branch of government, on an equal footing with the executive and legislative branches. We are reminded of that well-known observation by Carlos Luis de Secondat, Baron of

1 Ensor, R.C.K. Jueces y Tribunales en Inglaterra, Francia y Alemania (Judges and Courts in England, France and Germany), Madrid, Spain: Editorial Revista de Derecho Privado; 1935, p. 54 et seq.

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The Judiciary Council in France Though there are precedents in Spanish and Italian law, the body that governs and administers the courts in the modern sense was established under the French Constitution of October 27, 1946. Articles 83 and 84 on Title IX established the Conseil Superieur de la Magistratur [Superior Judiciary Council]. The statutes governing these articles appear in the laws of February 1 and 22, 1947. There were 14 members on the Council, which was chaired by the President of the Republic, with the Minister of Justice as Vice Chairman. Six of the principals and their alternates were elected to six-year terms by a two-thirds majority vote in the National Assembly, but were not to be members of the National Assembly. Another six members were also named; four of them and their alternates had to be judges representing the various ranks in the judiciary. The remaining two members and their alternates were designated by the President of the Republic. They were not members of Parliament or sitting judges; instead, they were to: be civil servants in the judicial branch of government. One of the Council's functions was to present the President of the Republic with a list of candidates for all seats on the bench, except for the members of the Office of the Public Prosecutor. It was also to order disciplinary measures, safeguard the independence of the judges and concern itself with the administration of the courts of law. This Council proved to be an unsatisfactory arrangement, as the representatives from the other branches of government were more powerful than the members of the judiciary, This situation often led to serious breaches of the independence of the judiciary.3 This all changed under the present French Constitution of the Fifth Republic, of October 4, 1958. Under Article 65 of the new Constitution, governed under the Ordinance of December 22,1958 (which contains the Bylaws of the Superior Judiciary Council), the Council is presently composed of the President of the Republic and the Minister of Justice, who serve as its Chairman and Vice Chairman, respectively. Another nine members are appointed by the President to four-year terms: three must be with the Court of Cassation, one of them an Advocate General; three must be judges of other kinds, selected from a slate of at least three candidates per post, prepared by the Court of Cassation; another appointee must be one of the State Advisors, selected from a list of three candidates prepared by that office's General Assembly; and the last two members are to be selected from among prominent persons not affiliated with the judiciary. One of the Council's chief duties is to send to the President of the Republic, nominees for seats on the Court of Cassation and the first president of the appeals

de Secondat, C., Baron de Montesquieu. El espiritu de las leyes [The Spirit of the Law]. Buenos Aires, Argentina: El Ateneo; 1961, p. 206 3 Daga, L.; II Consiglio Superiore della Magistratura. Naples, Italy: Jovene; 1973 p. 39.

Montesquieu2, to the effect that of the three "powers", the judiciary was the weakest and "practically nonexistent."

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courts and to give its opinion concerning the Justice Minister's nominees for other positions in the judiciary. It also serves as a disciplinary tribunal in cases involving judges and magistrates at various levels. However, when it acts as a disciplinary tribunal, the Council's presiding officer is not the President of the Republic, but rather the First President of the Court of Cassation.4 The Judiciary Council in Italy Influenced by the French Constitution of 1946 and by precedents in Italian law, the Republican Constitution that took effect in Italy on January 1, 1948, introduced the Consiglio Superiore della Magistratura [Superior Judiciary Council] in articles 104 and 105. The Council is governed by a number of ordinances, the first being the law of March 24, 1958, and the most recent being those of 1979 and 1981. According to the Constitution and the implementing legislation, there are a total of 33 members on the Superior Judiciary Council. Three are ex officioâ&#x20AC;&#x201D;the President of the Republic, the senior judge and the Public Prosecutor of the Court of Cassation. Two thirds of the remaining members are elected directly by all ordinary judges from among their peers in the various ranks of the judiciary. The remaining third is designated by the Parliament from among law professors and attorneys with at least 15 years of practice. Under the most recent amendments, 20 members are from the judiciary and 10 are appointed by parliament. All judges and magistrates, regardless of rank, participate in the election of the Council's judicial members. Even "bailiffs of the court" participate. The vote is personal, confidential and direct and a proportional system (d'Hondt method) is used. This democratic system for electing representatives of the judges and magistrates ultimately influenced the first phase in the development of Spain's General Council of the Judiciary.5 Salient among the basic powers granted to the Italian Superior Council are those that concern the status of the judges and magistrates inasmuch as it determines who the new members of the bench will be, their assignments, functions, transfers, promotions, and so on and the appointment or removal of honorary judges or experts attached to organs of the judiciary. The decisions the Council adopts in exercising these authorities are made at the request of the Minister of Justice or even ex officio, following a hearing of the report prepared by the competent commission of the Council. The decisions are announced via Presidential decree, cosigned by the Minister of Justice or signed by the Minister alone. It is also the Council's duty to impose disciplinary sanctions against judges and magistrates, through a special commission consisting of nine principal members and six alternates. The principals are the Vice Chairman of the Superior Council, who shall preside unless the President decides to do so personally; two members elected by Parliament; two judges on the Court of Cassation; two court judges and the remainder

4 Dalle, H.; "El autogobierno del Poder Judicial". Documentation juridica; 1985 XII (4546): 185-195 5 See infra paragraphs 25-32

selected without regard to rank. This disciplinary function is exercised at the initiative of the Minister of Justice or the Prosecutor General of the Court of Cassation and the sanctions imposed vary according to the severity of the offense. They include reprimand, loss of seniority, removal and dismissal.6 The Superior Judiciary Council in Portugal Article 223 of the Portuguese Constitution of April 1976 established the Superior Judiciary Council. According to the text of that article, its members were to include representatives elected by the judges. It was to assign, transfer and promote the members of the judiciary and to exercise disciplinary functions. The implementing legislation for this article was two ordinances described as Statutes of the Judicial Magistrates, both of which were passed by the Legislative Assembly. Under the first ordinance, dated December 31, 1976, the Council was to be composed exclusively of judges; the Chief Justice of the Supreme Court and the presidents of the courts of appeal were to serve as members ex officio, while the remaining members were to be elected by the judges on the courts of appeal and lower court judges. Also on the Council were four civil servants elected by and from the judicial branch of government. However, their competence on the Council was restricted to matters that concerned them directly. The second set of statutes appears in Law 85-77, of December 13,1977, Chapter X, Articles 139-186. This second set of statutes legislates, in considerable detail, how the Council is to be organized and function. Under Article 139 of this second ordinance, the Superior Judiciary Council of the Judiciary is the highest-ranking body to administer and discipline the judiciary and its staff. Article 140 provides that the Council shall have ex officio and elected members. The ex officio members include the President of the Republic, the Chief Justice of the Supreme Court, the chief magistrates on the courts of appeal and the ombudsman. Elected members include four persons designated by the National Assembly, two justices of the Supreme Court from among all its members in active service, six ordinary judges, and four civil servants with the judiciary (Article 144). Under Article 143 of that ordinance, the members of the judiciary are elected by secret and universal suffrage using the pattern established by the Council itself and write-in votes are

Biscaretti di Ruffia, P. Diritto costituzionale, XIII Ed. Naples, Italy: Jovene; 1983, pp. 537-542; Pizzorusso, A., "L'Autogoberno" del potere giudiziario en Italia: Documentacionjuridica. XII (45-46), 1985, pp. 167-181; â&#x20AC;&#x201D;"El Consejo Superior de la Magistratura en Italia". Documentacionjuridica; 1984, XII (45-46): 657-683. Pizzorusso, A ., Zagrebelsky, V. and Carbone, V. "Comentario della Costituzione". La Magistratura; 1991-1992, Tomos II and III. Bologna-Roma, Italy: Zanichelli - II Foro Italiano; pp. 657-683. Spatolisano, M. F. "Riformare il Consiglio Superiore della Magistratura. Spunti del dibattito in Corso". Revista trimestrale di diritto publico; 1985, pp. 728-795

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permitted. Under Article 145, the judges and civil servants in the judiciary are selected from lists drawn up by the professional organizations of magistrates and officers of the court, with one principal candidate and one alternate per judicial district. The functions of the Portuguese Superior Council of the Judiciary are quite broad and are spelled out in Article 152 of the law in question. Its chief functions include that of appointing, transferring, promoting, exonerating, weighing the professional merits of the judges and magistrates and, in general, performing similar functions, without prejudice to the provisions concerning elected appointments. It must also weigh the professional credentials of the personnel of the judiciary and exercise disciplinary action. It is also authorized to propose to the Minister of Justice the legislative measures to make the judicial institutions more effective and to order inspections, investigations and surveys of the judicial services. The Superior Judiciary Council in Turkey Following the Italian and French models, the Republic of Turkey introduced the Superior Judiciary Council in articles 143 and 144 of its 1961 Constitution. Under Article 143, the Council consists of 18 principal members and five alternates. Six of the principal members are elected by the Court of Cassation, with all its chambers in session, while another six are elected by secret ballot by the first-level judges from among their peers. The National House and the Senate of the Republic each elect three members by secret ballot and by an absolute majority of their total membership, from among persons who have served as judges on superior courts or who satisfy the requirements to serve on those benches. According to the Constitution, the Court of Cassation, with all its chambers in session, elect two alternates. The first-level judges and the National House and the Senate of the Republic elect the other two. As for the duties of Turkey's Superior Judiciary Council, Article 144 of the Constitution provides that it shall decide all matters pertaining to the qualification of judges. However, any decision that, for whatever reason, strips a judge of the right to practice his or her profession, shall require an absolute majority in the General Assembly. When deemed necessary, the Minister of Justice may ask the Superior Council to take disciplinary action against a judge. The elimination of a court must be submitted to the Council for approval. Control of the judges is the responsibility of higher-ranking judges accredited by the Council for that very purpose. The Supreme Judicial Council in Greece Also patterned after the French and Italian systems, the 1975 Greek Constitution established the Supreme Judicial Council. The Council consists of the president of the highest court and the members of that court, chosen by lot from among the judges who have at least two years of service. Also on the Council are the Prosecutor of the Supreme Court and the General Commissioner of the State before the Comptroller's Council. The Supreme Council is competent to decide promotions, appointments and transfers of members of the judiciary; all of which are made officia1 via presidential decree.

THE JUDICIAL BRANCH IN LATIN AMERICA

The Spanish Council established under the Democratic Constitution of December 1978 is patterned after the Italian and Portuguese models, but it can also be traced back to earlier Spanish law, which created a Judicial Council in the laws of May 17, 1917, and June 21, 1926. This institution had a somewhat checkered history that lasted through Spain's stormy political experience until the onset of the Franco era; it was even reestablished with limited authority under the dictatorship, in Principle 10 of the Law of November 28, 1974, which contained the Fundamental Principles of Justice.7 However, the modern institution enabling the Spanish courts to govern their own affairs was established in subparagraphs 2 and 3 of Article 122 of the Constitution promulgated on December 28, 1978. The French, Italian and Portuguese forerunners notwithstanding, a different name was chosen, the General Council of the Judiciary, in order to elevate the judiciary to the same political plane as the other branches of government. Under subparagraph 2 of Article 122 of the Spanish Constitution, "The General Council of the Judiciary is its organ of self-governance. The organic law shall establish its statute and the conflict of interest rules vis-a-vis its members and their functions, particularly in matters of appointments, promotions, inspection and discipline." Under subparagraph 3 of that article, the Council is to be composed of the Chief Justice of the Supreme Court, who shall preside, and twenty members appointed by the King for five-year terms. Of these, 12 shall be judges and magistrates from all judicial ranks, under the terms set forth in the organic law; 4 shall be proposed by the Congress of Deputies and four by the Senate, in both cases elected by a three-fifths majority from among attorneys and other jurists of recognized competence and with more than 15 years of professional practice. Two sets of regulations have been enacted to govern the Spanish General Council of the Judiciary. The first was the Council's own Organic Law 1/80, promulgated on January 10 of that year. It was provisional in nature, to remain in effect only until issuance of the Organic Law of the Judiciary, which was to make provision for the General Council. The First Regulation The most significant aspect of the Organic Law was the system it stipulated for designating the 12 members. The members were to come from the various categories of judges and magistrates and were to be elected by their peers, by personal, equal, direct and secret ballot. Mail-in votes were allowed. The voting was monitored by a permanent electoral board, headquartered at the Supreme Court, and consisting of three justices of the Supreme Court, six judges on the courts of appeal, and three ordinary judges (articles 8,13 and 17 of the Organic Law). The system set up was one 7

Fairen Guillen, El autoproyecto de Bases de una "Ley Orgdnica de la Justicia", Valencia, University of Valencia, Spain, 1969, pp. 145-147.

SPAIN'S GENERAL COUNCIL OF THE JUDICIARY

JUSTICE AND DEVELOPMENT

in which the members of the judiciary elected the members of the General Council directly, and could be likened to the one instituted for the councils in Italy and in Portugal.8 The functions and powers that the 1980 law conferred upon the General Council of the Judiciary were very broad and fell into two categories. Decision making This involved nominating candidates for the office of Chief Justice of the Supreme Court, who was also Chairman of the Council; designating two members of the Constitutional Court9; selection, assignment, promotion, administration and disciplining of judges and magistrates; appointment of judges, with the king's signature, and of chief justices and magistrates, with the king's signature and the approval of the minister of justice; selection, assignment, promotion, administration and disciplining of court secretaries; a system for selecting and training court auxiliary personnel and those who have some role in the administration of justice; appointment of the secretary general, members of his or her cabinets or services answerable to the secretary general; appointment of the Director General of the Judiciary School (now called the Center for Studies in the Judiciary); preparation and approval of the preliminary proposed budget of the General Council; and finally, such other functions and authorities as the law may confer upon it (Article 2 of the Organic Law). Recommendation and reporting Establishing or altering any judicial district boundaries, notwithstanding the authorities of the Autonomous Communities recognized under Article 152 of the Constitution and, where appropriate, in the respective statutes; establishing and making changes to the roster of judges, magistrates and court secretaries; developing the system for assigning and reassigning them; drafting bills on court procedural matters or that will affect the membership, organization, operation and governance of courts and tribunals or their bylaws; drafting a general prison law or regulations; proposing provisions of any kind that concern judiciary personnel or the organization and maintenance of the judiciary's services; overseeing the right to be heard prior to appointment of the Procurator General and such other powers as the laws may confer upon it (Article 3 of the Organic Law). In addition to the foregoing, the General Council of the Judiciary was to forward an annual report to the Cortes Generates (the legislative branch) and to the executive branch, describing the status of the administration of justice and recounting related activities. It was also authorized to promulgate regulations on the organization and operation of the judiciary and on the staffing, services and other matters within its competence (Articles 4 and 5).10

See supra Chapter II, numbers 2 and 3 Under Article 129, subparagraph 1 of the Constitution, and Article 16, subparagraph 1 of the Organic Law of the Constitutional Court, dated October 3, 1979 10 Fix-Zamudio, H., "La Ley Organica del Consejo del Poder Judicial Espanol del 10 de 9

THE JUDICIAL BRANCH IN LATIN AMERICA

The second set of regulations of the General Council of the Judiciary appears in Book II, Title II, Articles 107-148 of the Organic Law of the Judiciary, July 1, 1985. The most controversial aspect of this new set of regulations, still in effect, is that it abolishes the system whereby Council members representing judges and magistrates were elected directly by their peers; the Cortes now appoint all members of the General Council, not just those from the ranks of attorneys and jurists under the terms of paragraph 3 of Article 122 of the Spanish Constitution.11 This provision became the subject of controversy when it was debated in the Congress of Deputies, since the previous General Council of the Judiciary argued that the direct election of the judiciary's representatives, the system established in the 1980 Organic Law, was constitutional. When its position was overridden, the General Council took the constitutionality issue to Spain's Constitutional Court. The Constitutional Court dismissed the case in its ruling 45/1986, handed down on April 17 of that year. In its ruling 108/1986. of July 29 of that year, the Constitutional Court also dismissed the case brought by 55 deputies who argued that the 1985 Organic Law of the Judiciary was unconstitutional because, inter alia, it abolished the system whereby the judiciary's members on the General Council were elected directly by their peers. Hence, the position of the Cortes prevailed. In the explanation of the reasoning of the 1985 Organic Law, the following was stated: "As for the system to elect the 12 members of the General Council of the Judiciary who, under Article 122.3 of the Spanish Constitution, must be elected v from among judges and magistrates at all levels of the judiciary's hierarchy, the Organic Law draws upon democratic principle and is premised upon the fact that the General Council is the governing body of a State Power, all State powers emanate from the people, and the Cortes Generales represent the sovereign people; the law therefore confers upon the Cortes Generales the power to elect those members of the General Council who are to come from the ranks of the Judiciary. The requirement of a three-fifths majority, like the majority required to elect the other members, guarantees across-the-board and absolute observance of the democratic system and a convergence of diverse interests; thus, the membership of the General Council will not be determined by a concrete and short-term parliamentary majority..."12 Under articles 107 to 110 of the 1985 Organic Law, the powers and functions of the Spanish General Council of the Judiciary are very similar to those conferred upon

enero de 1980". (The Organic Law of Spain's General Council of the Judiciary of January 10, 1980) Gaceta informativa de Legislation y Jurisprudencia. 1981, No. 132, January-April; pp. 261-268 11 See supra Chapter III, paragraph 3. 12 Fairen Guillen, V. Comentarios a la Ley Orgdnica del Poder Judicial del 1 dejulio de 1985. Madrid, Spain; Editorial Revista de Derecho Privado - Editoriales de Derecho Reunidas, 1986; pp.117-217; Prieto Castro and Ferrandiz, L. Derecho de Tribunales. Pamplona, Spain: Editorial Aranzadi, 1986, pp. 392-401.

The Second Regulation

JUSTICE AND DEVELOPMENT

THE FIRST EXPERIMENTS IN THE LATIN AMERICAN SYSTEMS The first attempts made in the Latin American legal systems to establish bodies to govern and administer the courts, patterned to some extent after those established on the Continent, would lay the groundwork for subsequent development. Peru The legal system evolved considerably under Peruvian law during the military government, which promulgated Decree Law 18,060 of December 23,1969, creating what was called the National Council of Justice. The Council's purpose, according to its architects, was to improve the moral underpinnings of the administration of justice and to ensure the independence of the judiciary and the qualifications of its personnel. This system was changed by the Organic Law of the National Council of Justice, contained in Decree Law 18,831, of April 13,1971, which was then supplemented by Decree Law 18,985, of October 12,1971, and the Council's Regulations of November 23, 1971. Under this legislation, the National Council of Justice was composed of 10 delegates: two from the executive branch; two from the legislative branch; two from the judicial branch; one from the National Federation of Bar Associations; one from the Lima Bar Association; and one from each of the law programs at the two oldest national universities. The Council's powers were very broad. Among the most important were that of electing all magistrates in the judicial branch of government; the magistrates in the agrarian and private labor jurisdictions (fueros), with the exception of those justices of the peace who were not lawyers; and the coactive judges, who were to have the same qualifications that the Organic Law of the Judiciary in effect at that time required of lower court judges. It was also the function of the National Council of Justice to evaluate the performance of judges in the judiciary, with the exception of justices of the peace who were not lawyers and to institute, either on its own or at a party's request, disciplinary proceedings against judges in the judicial branch of government, the agrarian and labor jurisdictions (fueros), and coactive judges, with the exception of justices who were not lawyers. At the request of the state powers, the National Council was to examine and propose amendments to the codes and organic laws, working directly through any commissions established for that purpose or that the Council itself might propose. For 13

Ibanez, P. A. and Movilla Alvarez, C. El Poder Judicial. Madrid, Spain: Tecnos 1986, pp. 35-95; Xiol Rios, J. A. "El autogobierno del Poder Judicial. La situation en Espana". Documentation Juridica. 1985, XII (45-46); pp. 133-164

it by the 1980 Law, so that we would refer back to the brief description given above under the subsection titled "The First Regulation."13

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Brazil Brazilian law established the National Council of the Judiciary through Constitutional Amendment No. 7, of 1977, and articles 50-60 of the Organic Law of the National Judiciary, of March 14, 1979, all enacted by Congress under the authoritarian government. The Council had very limited powers and was composed of seven ministers of the Federal Supreme Court, elected from the ranks of the Supreme Court. Its functions were confined to investigating claims against judges and magistrates. Since the courts themselves retained disciplinary powers, the Council could merely sanction lower court judges. Nevertheless, it was empowered to determine, with the concurrence of the Solicitor General of the Nation, whether judges and magistrates were to remain in service or retire. Uruguay Before constitutional order was restored in Uruguay, the civilian-military government amended, via Constitutional Decree number 12 of November 10, 1981 (since repealed), Section XV of the 1966 Constitution (the original text of which has now been restored), which concerns the judiciary. That decree (Article 9) introduced the Superior Judiciary Council, which consisted of the Minister of Justice who presided over the Council, the Chief Justice of the Supreme Court, the President of the Administrative Court, a member of the legislature designated by itself; the Court Prosecutor and the Solicitor General of the Nation; the State's Administrative Prosecutor; and the senior minister on the courts of appeal. The Council's functions were very broad, as it had supervisory, advisory and correctional authority over the magistrates serving on the bench and over the other personnel in the judiciary. It had the authority to appoint the members of the courts of appeal, subject to approval by the legislature, and directly appoint judges of all types and levels. It was to draw up the draft budget for the members of the judiciary, transfer judges and magistrates, enforce disciplinary sanctions against personnel in the judiciary, or remove them in cases of incompetence, omission or wrongdoing. It was also responsible for drafting the Organic Law of the Judiciary. Colombia Before the 1991 Constitution now in force, the situation in Colombia's legal system was in constant flux. The judiciary's governing and administrative instruments 14

Fix-Zamudio, H., "Reglamento del Consejo de la Judicatura de la Republica de Venezuela del 5 de octubre de 1973" in Gaceta Informativa de Legislation y Jurisprudencia, No. 11, Mexico, July-September 1974, pp. 488-489

this purpose it was authorized to request the executive branch to alert the measures necessary to expedite the work of those commissions.14

JUSTICE AND DEVELOPMENT

underwent a long and at times checkered history. The first precedent dates back to Decree 2798 of October 21, 1955, which established the Superior Judiciary Council, which by a law of October 20, 1972, became the Disciplinary Tribunal. The original Superior Judiciary Council, however, was reestablished in Article 149 of the Colombian Constitution of 1886, as amended by a legislative decree of December 28, 1979. Its regulations appeared in Decree 3266 of 1979, issued and promulgated by the President of the Republic in exercise of his constitutional authority under Article 63.b of 1979 Legislative Act 1 (Constitution amendment) mentioned earlier. In a majority ruling of November 3, 1981, the Supreme Court declared the amendment unconstitutional (and hence null and void for general purposes) and in so doing nullified the relevant regulatory legislation. Nevertheless, the membership and functions of Colombia's then Superior Judiciary Council should be discussed because they served as the forerunner of today' s Superior Judiciary Council, established by the Constitution in force since July 7, 1991. Under the now repealed 1979 Colombian law, the Superior Judiciary Council was composed of four magistrates, designated by the Council itself by a majority vote. Each member was to serve an eight-year term and was not eligible for reelection. The Council's duties and responsibilities, as spelled out in Article 7 of that law, can be summarized as follows: • In the first place, it was the Council's function to send to the Supreme Court and to the Council of State, lists of no less than three candidates for every vacancy that occurred in those bodies; to prepare and refer to the Supreme Court lists of those citizens who met the requirements for appointment to a seat on the bench of the superior courts in judicial and customs jurisdictions; to send to the Council of State lists of those who qualified for appointment as judges on the administrative bench; to send to the superior courts lists of those who met the requirements to be appointed judge. These functions must be seen in light of the fact that in Colombia, under both the 1886 Constitution and the 1991 Constitution currently in force, the co-optation system is used for appointments of members to the judiciary. The Council was also called upon to draw up the list of eight alternate judges and to appoint the principal justices on the Council itself, as well as subordinate staff. • The second essential function of the Superior Judiciary Council under Colombia's 1979 Constitution concerned disciplinary action, given that it was called upon to serve as court of last instance in cases involving wrongdoing on the part of the magistrates and employees of the Council that required disciplinary action. The Council was also to hear cases involving wrongdoing on the part of justices of the Supreme Court, members of the Council of State and of the superior courts. It was required to serve as a court of second instance to settle, either on appeal or by referral, cases involving alleged wrongdoing by judges and attorneys in the exercise of their profession, where the superior courts served as the lower court. Finally, the Council could order the removal of justices from the Supreme Court, pursuant to Articles 121,122, and 215 of the 1886 Constitution (which established deadlines for deciding cases involving issues of constitutionality and considered expiration of deadlines as misconduct). • In addition to the above, the Superior Council was responsible for the adminis-

tration of the judiciary service; advising the government on the bylaws of the judiciary service in order to provide what was necessary for its organization and operation; to render its opinion on the merits of requests for a change of venue in disciplinary proceedings where it was to serve as court of second instance; and, finally, to settle any disputes over competence that might arise among the various jurisdictions. Venezuela In Venezuela, the Judiciary Council was introduced in Article 217 of the Constitution of January 23, 1961, now in force. That article states that, "The respective Organic Law shall create the Judiciary Council, whose functions and authorities it shall establish with a view to ensuring the independence, efficacy and decorum of the courts and to guaranteeing for judges the benefits of service in the judiciary. The other branches of public power shall be properly represented on the Judiciary Council." The Organic Law of the Judiciary, of June 30, 1956, was amended by laws enacted on August 26 and September 16, 1969, to establish the guidelines for the Judiciary Council. Article 34 provides that it is to have its seat in the capital of the Republic and be composed of nine appointed members: five by the Political-Administrative Chamber of the Supreme Court of Justice, two by the Congress of the Republic, and two by the executive branch of government. Both of these tribunals shall also have two alternates designated at the same time and by the same manner." The Council itself issued its regulations on October 5, 1973, which were published in the Official Gazette of December 3, 1973. Under articles 122 and 123 of the amended Organic Law, the members of the Council shall have five-year terms and must have the same qualifications required to be a justice on the Supreme Court. The Council is to serve as a tribunal consisting of several members and elects its own Chairman and Vice Chairman each year. The following are among the Council's chief functions and powers: in September, immediately before the start of each constitutional year, the Council is to designate the judges to serve on the superior tribunals and the lower court judges in the ordinary and special jurisdictions, the examining judges, district and departmental judges, parish and municipal judges, save for those serving in the military courts; it is to name and remove public defenders and court inspectors; to audit and monitor the functioning of the ordinary and special courts—save for the military courts—and notwithstanding the provisions of other laws on inspection service; to deal with either on its own or in response to a complaint, offenses allegedly committed by members of the judiciary and public defenders nationwide; to prepare the judiciary's preliminary budget proposal and present it to the executive branch of government.15

Fix-Zamudio, H., "Reglamento del Consejo de la Judicatura de la Republica de Venezuela del 5 de octubre de 1973" in Gaceta Informativa de Legislacion y Jurisprudencia, No. 11, Mexico, July-September 1974, pp. 490-495

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JUSTICE AND DEVELOPMENT

Following the first attempts to introduce into Latin America, institutions to govern and administer the courts, patterned after the model of the Council of the Judiciary in countries on the European Continent (particularly those of France and Italy in the years following World War II), a second phase began when the experience gained in the trial phase was used to consolidate and strengthen the bodies instituted to administer and govern the judiciary. Peru As noted earlier, the body known as the National Council of Justice was introduced in 1969 under Peru's military regime. Its functions and powers were too broad and ambitious, however, and it lasted until the new Constitution of 1979. The Constitution of 1979 actually entered into force the following year when constitutional order was restored and is still in effect.16 While a new Constitutional Assembly has recently began work on what may soon replace the 1979 Constitution, a brief description of the structure and authorities of Peru's National Council of Justice is in order. Governed by Articles 245 to 248 of the 1979 Constitution, the Council has been functioning for more than a decade. Those articles were elaborated upon in the Organic Law of the Councils of the Judiciary, contained in Legislative Decree Number 25, promulgated by the President of the Republic in exercise of the authority delegated to him by the Congress pursuant to Article 188 of the 1979 Constitution and in accordance with Law 23.230, enacted December 1,1980. The legislative decree was issued on January 30,1981, after being reviewed by the Congressional Commission and with the approval of the Council of Ministers. According to these constitutional and legislative provisions, Peru's National Council of the Judiciary is composed of the Attorney General, who presides and who is designated by the Council itself; two members appointed by the Supreme Court; one member appointed by the National Federation of Bar Associations of Peru and one by the Lima Bar Association; and two members elected by the faculties of law in Peru, from among those who have the qualifications required to be a justice on the Court; there is, however, no maximum age requirement. With the exception of the Government Prosecutor, who for this one time was named by the President of the Republic, all members of the Council serve a three-year term and are not eligible for immediate reelection. They are in no way answerable or accountable to the body that appointed them and may not be removed by them (Articles 1 through 10 of the law in question). Also established were the District Judiciary Councils. These are not permanent institutions; rather, they are created each time it becomes necessary to nominate a lower court judge, a prosecutor to a lower court or examining court, or even a justice of the peace whose is a lawyer in the respective judicial district. These councils are 16

See the section on Peru on page 48 of this chapter.

CONSOLIDATION OF THESE INSTITUTIONS IN THE LEGAL SYSTEMS OF PERU, EL SALVADOR AND PANAMA

made up of the most senior prosecutor in the corresponding judicial district; the two judges with the most seniority on the respective superior court; and two council members designated by the jurisdiction's bar association (Articles 36 and 37). As for the functions and powers of the National Council, the Organic Law gives it the authority to present to the President of the Republic the nominees for the justices appointed to the Supreme Court and the judges on the superior courts, as well as the prosecutors with those courts. It is also authorized to present to the President the names of the candidates that the district judiciary councils are nominating for appointment as lower court judges and justices of the peace who are members of the bar in the respective court districts (Article 28, paragraphs a and b of the Organic Law). Said names must be put forward for nomination according to the procedure stipulated in Article 29 of the Organic Law (i.e., by a merit-based competition). Once the National Council has determined the results of that competition, it must prepare slates of suitable candidates for the post in question. The slate is forwarded to the President of the Republic so that the latter might appoint the respective magistrate. However, when the appointment is for justices of the Supreme Court and prosecutors with the Supreme Court, the appointment must be sent to the Senate for ratification. As noted earlier, under Article 246 of the Constitution, the Council also appoints the Attorney General, who serves as the Council's chairman. Unlike what happens with most of these institutions, Peru's National Council of the Judiciary cannot impose disciplinary measures, as it is only authorized to process the complaints filed concerning the conduct of the justices on the Supreme Court. The Supreme Court alone has the authority to decide on the disciplinary action or refers it to the Attorney General if there is a presumption of guilt under the terms of Article 249 of the Constitution. The functions of the district councils are confined to the proposals that they are to submit to the National Council for the appointment of lower court judges, justices of the peace who are members of the bar association of the respective court districts, and the prosecutors of the lower and examining courts. The procedure these district councils follow for these nominations is similar to the one stipulated for the National Council, in that it involves merit-based competition among the applicants for these posts. (Articles 39 and 40 of the Organic Law). El Salvador Article 187 of the Constitution of El Salvador, of December 15, 1983, provides that the National Council of the Judiciary is the organ charged with nominating candidates for magistrates of the courts of second instance and lower court judges. Article 187, which gives the Council very limited authority when compared to its counterparts elsewhere in Latin America, was regulated under the Law of the National Council of the Judiciary, promulgated on October 19, 1989, and published the next day in the Official Gazette. While this entire matter is subject to review under the peace accords that ended the long civil war in El Salvador, the existing legislation warrants some, albeit brief, consideration. Under the law, the National Council of the Judiciary is composed of 10 members: five are justices of the Supreme Court; three are attorneys elected to the Council by

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JUSTICE AND DEVELOPMENT

the Federation of Bar Associations of El Salvador; and two are attorneys elected by the faculties or schools of law of the country's accredited universities. Each member has his or her respective alternate (Article 8 of the law). Turnover among the membership of the Council is gradual; members have three-year terms and are not eligible for immediate reelection (Article 11). The election of the members is final, and members shall vacate their seats on the Council upon expiration of their term or by resigning due to some conflict of interest or disability or because they cease to be members of the entity that elected them or because of serious misconduct in the performance of their functions (Article 7). Under Article 187 of the Constitution, the essential function of El Salvador's National Council of the Judiciary is to propose to the Supreme Court candidates for the seats on the bench in the courts of second instance and lower courts. For each vacancy at least three candidates must be nominated, based on concrete and objective criteria and with a view to selection. If the Supreme Court believes that other candidates are needed, it must so advise the Council so that the latter might submit its second proposal within the space of 15 days. The appointment must be made from among the Council's candidates; however, should the Council fail to nominate candidates within the stipulated time periods, the Supreme Court shall make the appointment and may consider past nominees to that end (Articles 13 to 15 of the respective law). Under the Peace Accords signed in Mexico City on April 27,1991, between the Government of El Salvador and the Frente Farabundo Marti para la Liberation National, the parties agreed to a judicial reform. The reform proposes a modification to the National Council of the Judiciary in such a way as to guarantee the independence of the state's institutions and the political parties. This proposed reform relates not only to judges, but also to the sectors of society not directly connected with the awarding of justice. Article 187 of the 1983 Constitution was modified by Legislative Decree on October 31,1991. This modification was based on the basic directions included in the Peace Accords and read as follows: "The National Council of the Judiciary is an independent institution, charged with proposing candidates for the positions of justices of the Supreme Court, judges for courts of second instance, judges of courts of first instance and justices of the peace. The organization and functioning of the Judicial Training School whose assignment is to improve the professional training of judges and other judicial personnel will be the responsibility of the National Council of the Judiciary. The members of the National Council of the Judiciary will be elected by the Legislative Assembly with a two-thirds majority of the elected deputies. The law will have the last word in this matter." In the Panamanian system, Articles 431 to 439 of Book I of the Judicial Code, published by the Legislative Assembly in 1987, is the only reference in the law to an institution of the kind under discussion here. Under Article 431, the Judicial Council is the judiciary's advisory organ in matters of governance and discipline, with the exception of those powers reserved for the Supreme Court. The Judicial Council is headed by the Chief Justice of the Supreme Court; its other members are the Presidents of the Court Chamber and the Attorney General and Prosecutor for Administrative Affairs (Article 432). Salient among the Judicial Council's functions are those of ensuring the indepen-

dence, efficacy, discipline and decorum of the courts and guaranteeing that the justices, judges, agents of the office of the attorney general and subordinate personnel receive the benefits to which they are entitled by virtue of their service in the judiciary. To this end it is in charge of all matters relating to said service. It also prepares opinions and recommendations regarding bills on the judiciary career; on the problems in selecting, ranking and training employees in the judicial branch of government and the office of the public prosecutor; periodically analyzes the salaries of these employees and their social security; apprises itself of all violations of judicial ethics; makes recommendations to improve the structure of the judiciary and office of the Attorney General and how they function, as well as the classification, ordering and publication of national jurisprudence, etc. (Article 434). THE MOST RECENT LEGISLATION: COSTA RICA, COLOMBIA AND PARAGUAY Building upon the forerunners discussed earlier, in recent years a third and final phase has taken shape. It involves a definitive move within the Latin American systems to establish bodies to govern and administer the courts. The traditional systems divided the functions between European-style ministries of justice and the highest-ranking bodies in the judiciary' s hierarchy (tribunals and supreme or superior courts). The new trend, however, is to entrust these functions to bodies referred to as councils of the judiciary. It is a more modern approach and draws upon the experience of similar instruments established, as said before, in the constitutional systems of postwar Europe. Costa Rica One piece of legislation in this third and final phase is the Costa Rican bill on the Organic Law of the Judicial Branch, which the Chief Executive submitted to Costa Rica's Legislative Assembly on April 13, 1989. Title III, Articles 62 to 97, of this bill propose the establishment of the Superior Judiciary Council and regulation of its structure and functions in great detail. Under Article 62 of the bill, the Council is to be regarded as an organ of the Supreme Court and is to exercise the administrative and disciplinary functions of the judicial branch of government to ensure the efficiency, propriety and decorum of the courts and to guarantee to the judges the benefits of service in the judiciary (Article 62). The Superior Judiciary Council would be composed of five members: three would be members of the judicial branch, and two would be attorneys of recognized competence but not members of the judiciary. Each member could have an alternate. The Chief Justice of the Supreme Court would head the Council; the other two members from the judiciary would be appointed by the Court but not from its own members. The attorney members would be designated by the Supreme Court from a list of ten attorneys submitted by the Board of Directors of the Bar Association and the former chairmen thereof. All members of the Council would serve for an eight-

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JUSTICE AND DEVELOPMENT

year term and would be eligible for reelection to successive terms in office (Articles 63-66 of the bill). Under the bill the Superior Council is given very broad responsibility and authority. The influence of a similar body established in Spain17 is apparent even in its title. We shall try here to summarize the powers of the Council. Salient among the Council's functions and authorities are the following: • In judicial policy, the Council must determine the administrative policy of the judicial branch of government based on the statutory guidelines established by the Supreme Court of Justice; plan, organize, direct and coordinate the administrative functions of the judicial branch of government and propose to the Court the necessary regulations; propose to the Legislative Assembly the creation of judicial offices in the places and for the matters it deems necessary to provide good public service; to secure the premises and materials for the judicial offices and to move them; and to prepare the budget proposal for the judicial branch in accordance with the pertinent regulations. • In nominations and appointment: the Council is required to present to the Supreme Court a list of candidates eligible for the post of magistrate, after conducting a competition based on credentials or an examination, as appropriate. When a vacancy occurs on the Supreme Court, the Court shall request from the Council a list of persons eligible to serve thereon. This list must be forwarded to the Legislative Assembly. The Council also appoints judges to the superior courts, judges and mayors, in accordance with the standards and principles of the Judiciary Service Statute, calls alternate judges to the bench for specified periods. It designates the Attorney General of the Republic, the Deputy Attorney General, the Chief and Deputy Chief of the Public Defenders' Office, the Director and Deputy Director of the Department of Judicial Investigations. In this last case, the Council must give a private hearing to the Attorney General. It also ratifies the appointment of the subordinate staff that each administrative chief selects for his or her respective legal unit, department or office, following the procedure stipulated in the Judicial Service Statute. Finally, the Council appoints law clerks and other aides for the offices in the judiciary. • Regarding the Judicial profession and discipline, the Council settles all questions relating to the temporary or permanent transfer, suspension of licenses and removal of judges and judiciary personnel, based on the applicable provisions. It administers the retirement and pension fund of the judicial branch of government and exercises disciplinary authority over members of the judicial service, in accordance with the law and notwithstanding the powers invested in the Chairman of the Judicial Branch. Colombia As already noted, when the 1886 Colombian Constitution was still in force, various experiments were conducted to establish specific bodies to govern and administer the 17

See the section "Spain's General Council of the Judiciary," p. 45 of this chapter.

judicial branch of government.18 Title VIII- on the Judiciary-, Chapter 7, Articles 254257 of the present Constitution of July 7, 1991, establish the Superior Judiciary Council. By the terms of those articles of the Constitution, the Superior Judiciary Council shall have two chambers: the Administrative Chamber composed of six appointed judges (two by the Supreme Court, one by the Constitutional Court, and three by the Council of State); and the Disciplinary Chamber, composed of six judges elected by the National Congress from slates referred to it by the Administration. All Council magistrates shall have eight-year terms. In addition, sectional councils of the judiciary can be created out of these chambers (Article 254). The Council's functions and authorities can be divided in the following way: • Judicial policy. This includes establishing the territorial boundaries of court districts; creating, eliminating, merging and transferring seats on the bench; establishing the regulations necessary for the court service to function efficiently, the regulations to govern the organization and internal functions assigned to the various posts and regulation of judicial and administrative procedures in respect of matters not regulated by the legislature; proposing bills on the administration of justice and the substantive and procedural codes. (Article 257 of the Constitution). • The judiciary service and nomination of candidates (which the sectional councils may also exercise) involves the administration of the judiciary service; drawing up of lists of candidates for positions in the judicial service and sending them to the agency that must make the appointment, with the exception of those for the military criminal jurisdiction; and keeping a record of the performance of the bar associations and legal offices (Article 256 of the Constitution). • Powers related to disciplinary sanctions and disputes that arise among jurisdictions regarding competency. The Council has the authority to examine the conduct and punish wrongdoing by personnel in the judicial branch of government, by attorneys in the practice of their profession, in the forum that the law stipulates; and to settle disputes as to which jurisdiction has competence. Paraguay In Paraguay's new Constitution of 1992, the Council of the Judicature was introduced in Title III, on the judiciary, Chapter 6, Articles 227 to 229. Two members of the Council are appointed by the Supreme Court, two by the Congress, two by the President of the Republic, one by the Public Prosecutor's Office, one by the law schools in existence for over 20 years, one by the lawyers' professional association, and one by the guild of magistrates of the court. These members must meet the same requirements demanded of magistrates on the courts of appeal and have four-year terms in office. (Articles 227 and 228 of the Constitution). The functions and authorities of this Council of the Judicature are limited to administering the judiciary service; preparing the list of candidates for appointment of judges, prosecutors and court personnel; examining the conduct of those judges, 18

See the section Colombia, p. 49 of this chapter.

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LATIN AMERICAN PERSPECTIVE ON THE INSTRUMENTS FOR THE GOVERNANCE AND ADMINISTRATION OF THE COURTS This section briefly describes how the governing and administrative bodies of the courts have gradually emerged in the Latin American systems in recent decades, patterned along the lines of the European model in which such bodies are called Councils of the Judiciary or Judicature. It is apparent that their purpose is the improvement of the traditional system because it is unable to cope with the complex problems of a modem court system that has become increasingly specialized due to technology and the quantum increase in the number of legal disputes that the courts are called upon to settle. The councils of the judiciary vary greatly in terms of membership and the way they operate. The councils established in Latin America, like their counterparts elsewhere, also differ in terms of composition and the way their members are appointed. However, putting these differences aside, there is a common thread, which is that judges, magistrates and judiciary personnel constitute the majority on these councils. This makes sense given that their fundamental purpose, like that of their European prototypes, is "the judiciary's self-governance." The functions and powers that the law invests in these councils also vary. In some Latin American countries the law directly authorizes the council to appoint some or all of the officers of the court, while in others the law only authorizes it to nominate candidates, whether they be for the higher courts or for other public powers. But here again there are certain common or at least dominant traits, these include the council's role in selecting candidates for judicial posts; its role in the judiciary service (where again, the trend is toward a greater role); preparation of the budget; and its authority with regard to the disciplinary system for judges and their aides. While there are no empirical sociological studies to determine the efficacy of the judicial councils in Latin America, the fact that they have been established progressively would seem to indicate that such bodies are essential for improving the traditional system, a system that relied on the ministries of justice and on the governance functions performed by the higher courts. Hence, these councils will likely make their way into more constitutions and legal systems in our region, and each will be tailored to suit our countries' legal traditions. One aspect that should be emphasized is that decisions on the selection of candidates and the appointment, promotion and transfer of judges and personnel of the judicial branch of government, and the establishment of the judiciary's policy and its disciplinary system, are made not just by the ministers of justice and supreme or superior courts, but also by judges and magistrates at all levels of the judicial hierarchy. Hence, these decisions are not purely vertical, as they once were or as they still are in those systems in which this pluralistic participation does not yet exist. While for the immediate future it hardly seems likely that the members of these councils, at least those who perform court functions, will be elected democratically by the direct vote of the various judges, magistrates and their aides, as is the case under

magistrates and court personnel as background information for the Supreme Court; and monitoring the performance of the court offices (Article 229 of the Constitution).

Italian, Portuguese and—until 1985—Spanish law, the role of the representatives from these ranks introduces a democratic element. This innovation is an improvement over the vertical decision making that was the rule until the councils were introduced. It should also be noted that regardless of whether the councils of the judiciary include members designated by the other two branches of government—the legislative and executive—they do include attorneys appointed by their professional associations, and even university professors in the legal sciences. Membership of this nature makes the judiciary' s administration and governance more pluralistic and transparent. The foregoing notwithstanding, there are very few studies on the councils of the judiciary, especially comparative studies, in Latin American literature. More studies would be very helpful since increased knowledge can improve the existing councils or help to introduce them to the legal systems in which they do not yet exist. Those studies should focus not only on normative issues, but should encompass the social sciences as well, particularly for the kind of empirical, sociological analysis that is so useful where the law and the courts are concerned. CONCLUSIONS The following conclusions can be drawn from these brief observations: • In the post-World War II period, constitutional legal systems on the European continent began to establish bodies intended to govern and administer the courts. They were an improvement upon the traditional instruments, which relied on the functions of the ministries of justice that, being part of the executive branch of government, infringed upon the autonomy of the judicial branch of government. And so, the Councils of the Judiciary or Judicature came into being, basically to make the courts truly self-governing. Noteworthy here are the Superior Councils of the Judiciary of France, Italy and Portugal, which had an influence on the councils established in Turkey and Greece. • This evolution is apparent in the 1978 Spanish Constitution, in which the General Council of the Judiciary was established. Its functions and authorities were quite broad, and it has become a model for the Latin American legal systems. In its first Organic Law of 1980, in keeping with the Italian and Portuguese model, those members of the Council who represented judges and magistrates were elected directly by all members of the judiciary. However, in the 1985 Organic Law of the Judiciary, which included this Council in its regulations, the Cortes (i.e., the parliamentary body) was given the authority to appoint these representatives, in addition to those it appoints under the Constitution. • The Latin American legal systems are gradually introducing these Councils of the Judiciary as an improvement over the traditional systems, which relied on the ministries of justice and the higher courts. Three phases can be discerned among the laws thus far adopted: the experiments in Peru, Brazil, Uruguay, Colombia and Venezuela; a second phase of consolidation in the more recent legislation in Peru, El Salvador and Panama; and a third phase in the consolidation of these councils, evident in the Costa Rican draft legislation and provisions in the 1991 Colombian Constitution and the 1992 Paraguayan Constitution.

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• In keeping with this evolution and the tendency to make the judicial councils part of the Latin American legal systems, these bodies designed to govern and administer the courts have several traits in common: a pluralistic membership, not only because they include members elected by the other two branches of government, but also because the judiciary's members come from all corners of the legal profession—judges, magistrates and officers of the court, attorneys appointed by their respective bar associations and even university professors in the legal sciences. This means that decisions regarding the judiciary's governance and administration are less vertical than decisions under the traditional system, which are wholly within the purview of the ministries of justice and the supreme courts. • These judicial councils have some functions and powers in common as well, even though their forms in Latin American legal systems vary. They participate in the selection and appointment of judges, magistrates and clerks; they have a role in the judicial service (which is increasing); they collaborate on or actually decide what disciplinary measures will be taken against judiciary personnel; and help establish judicial policy. The traditional system by which the courts are governed and administered will have to be improved by introducing bodies similar to these judicial councils. This will in turn necessitate their study. At present there are all too few studies in this area and future studies will have to focus on more than the normative aspects. Hence, those who practice the other social sciences, especially the sociology of the law, must be given a role, as studies of this kind are essential to enhancing these institutions. BIBLIOGRAPHY Fix-Zamudio, H. 1984. Dos leyes latinoamericanas recientes sobre el gobierno de la judicatura. Colombia y Peru. Boletin Mexicano de Derecho Comparado (No. 51, September-December): 943-955 Fix-Zamudio, H. 1986. Los problemas contempordneos del poder judicial. Mexico City: UNAM.

Justice in Central America in the Nineties

Rene Hernandez Valiente Minister of Justice

INTRODUCTION I am honored by the invitation extended to me by the Office of the President of the Inter-American Development Bank to make this presentation on the current status of El Salvador's justice system. The issue of justice is destined to become an increasingly important part of the Bank's agenda since it is an essential factor in guaranteeing legal protection and, hence, of fostering the expansion of private business activity and development in general. I would like to take this opportunity to underscore the unique nature and importance of this event in bringing together top Latin American judicial authorities in a forum for the discussion of important issues and the sharing of views. Gathered here in San Jose are Chief Justices of Supreme Courts, heads of Prosecuting Attorney' s Offices and Public Defender's Offices and Ministers of Justice from throughout Latin America and the Caribbean to take part in this pioneering event whose benefits can be nothing less than spectacular. I would like you all to know how gratifying this event is to me personally. As indicated by the title of this seminar, we have come here to examine jointly the challenges presented by current conditions in our respective countries within the justice sector. This fact, in itself, imposes three requirements. We must be honest, we must be creative and we must show courage. We need to be honest because, as we all know, problems are not solved by covering them up, embellishing them with fancy terms or describing them with euphemisms. This is why I have decided not to confine this presentation to a mere description of the workings of the Salvadoran justice system but, rather, to take what is essentially a critical approach to this issue. We need to be creative to be able to identify available problem-solving opportunities. In many cases, we suffer more from our own lack of imagination than from a lack of resources. Lastly, history demands that we show courage. While many are clamoring for a change in the justice sector, not everybody is willing to relinquish structures that have protected them for centuries and to which we are all accustomed. We have an extremely important opportunity here, and we must show that we are up to the challenge by acting with the fortitude produced only by a combination of intellectual certainty and political will.

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As I have said before, I have decided to reject expressly the temptation of making theoretical speculations. Thus, my intent in this address is to present this distinguished audience with the results of recent studies, thinking and discussions on how Salvadorans perceive their justice system, on how the system works and on current efforts to improve it. As I see it, this presentation would be incomplete if confined exclusively to a discussion of the judicial function per se. For this reason, I intend to address all elements of a rich and complex system, including legal, institutional, educational and technological factors. PERCEPTION OF THE JUSTICE SYSTEM AND HOW IT OPERATES It is safe to say that, in general, Salvadorans frown upon their judicial system. To begin with, they do not understand it. They consider it out of touch with reality and, at the same time, they fear that, should they happen to come into contact with it in some way, the result would be a negative experience. Thus, the possibility of contact with the system is viewed as a constant threat. In other words, Salvadorans do not yet view their justice system as a service. They do not think of it as a social service which they could resort to in the event of an unsatisfied need, interpersonal controversy or act of oppression by the government. Nevertheless, there is one thing that Salvadorans ask for from their judicial system, namely that it protect them against crime and concompliance. However, this public demand, which is totally impossible to fulfill under present circumstances, has been interpreted more often as the requirement of a dangerous and threatening "police state" than as a need for a valid, efficient system for the administration of justice. Moreover, the familiarity of other sectors with judicial institutions is extremely limited, to say the least. We have no comprehensive, multidimensional description of the justice sector. Thus, legal education is another important factor. I feel it is important for us to recognize the visible deterioration suffered by this sector, particularly as a result of the recent conflict. Finally, the Ministry of Justice has recognized the urgent need to reform, modernize and humanize the country's legal system. It has been a year now since we have signed the peace accords, and we realize that we can no longer use the excuse of war to put off modernizing our legal and judicial systems. When I use the term "war," I use it consciously and in two senses. First, in the sense of the politico-military conflict between two armies that kept our civilian population overshadowed by fear and embittered by the impossibility of any hope of physical or spiritual development for twelve long years. In its second sense, it refers to the business or economic conflict arising with the signing of the peace accords and to one of its facets in particular, namely the war against crime and against breaches of civil, labor and administrative obligations. We realize we cannot disassociate ourselves from the causes of either of these wars. We must admit to the commission of serious social miscarriages of justice in our country, which led us into a fratricidal war, further exacerbated by extremist political rhetoric. And we must also realize that, to a large extent, crime is a product of educational and economic disparities.

Though it is extremely difficult to admit to this in present-day El Salvador, the crime wave, if there really is one (which cannot be confirmed without in-depth statistical studies) is a product of social inequities. In my opinion, we must not give in to the simplistic temptation of perceiving crime as an isolated psychological or physical phenomenon for which society holds no responsibility whatsoever. This type of thinking leads to the erroneous conclusion that the only possible response is isolation through incarceration. In fact, this temptation is one of the greatest dangers facing us in this post-war period. Society, including its political leaders in the role of representatives of choice, is resentful of the crime problem. Thus, it could easily be seduced (which, in my opinion, is already happening) by the temptation of launching a repressive "law and order campaign" in which, at best, incarceration is viewed as the only viable punishment and, thus, the only penalty needed and in which preventive detention is widely used as a preliminary form of punishment. The experiences of other countries in stages of development similar to that of El Salvador have shown how this so-called "solution" only leads to more crime. Moreover, it invariably leads to a progressive deterioration in professional ethics within the justice system and to a growing criminal "subculture." Though still at an early stage and nowhere near what we could call a bona fide general consensus, we are nevertheless seeing a strong reaction within our society in the sense of "rethinking" the nature and structure of justice sector institutions, of amending our legislation and of reforming our legal education system. Again, this effort, on which there is still no general consensus, is at an extremely early stage. Moreover, it is still not fully understood by our own people and has still not been accepted by a number of our leaders. Any type of change is bewildering. But this bewilderment and fear must not force us into the misguided path of confining ourselves to superficial changes or mere window dressing, thereby repeating the mistakes of the past. Furthermore, it is important to establish that, in a reconstruction period, we tend to give top priority to economic issues, setting aside and thereby isolating sociojudicial issues. There is a segment of our society that would prefer that we concentrate our efforts on economic development. This could lead to the false belief that judicial policy should not be concerned with strengthening education or that in order to protect ourselves against crime and breaches of civil, labor-related and administrative obligations we need to resort to exclusion. These ideas would cause us to overlook the real causes and thereby repress the effects rather than attack the roots of the problem. We are opposed to simplistic, partial solutions. We might get quicker and more spectacular results by confining our reform or modernization efforts to a single sector. But, more than likely, such a limited solution would fail to heal many social wounds in the areas of observance of constitutional rights, public safety, legal protection and justice in labor and domestic matters. Such a "solution" would only postpone the problem and thereby allow it to fester. Permitting crime, breakdowns in family relations or labor disputes to reach unmanageable proportions could eventually cause us to yield to the temptation of totalitarianism, which means sacrificing democracy for supposed security.

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Consequently, as we see it, we need to shatter the myth in El Salvador that development and legal protection can be achieved only by strengthening so-called "private law" and by imposing stricter penalties. Legal protection thrives only in a justice system that is transparent, effective and humane on all levels. Modernization of Different Legal Subsystems With the signing of the Peace Accords, our country was faced with an urgent need to reform its Code of Civil Procedure. Existing legislation failed to observe adequately the rules of procedural due process. Our purpose in undertaking this reform is to ensure that our system of private law promotes rather than hampers the overall socioeconomic development of the private individual, strengthening both individual and corporate efforts to achieve economic success. Our first step in this direction was to give Salvadoran citizens and foreigners alike a sense of confidence in the legal system. The work accomplished by our Supreme Court in this respect has been especially important. Salvadoran society has expressly rejected a number of obsolete or simply unjust institutions through which certain aspects of domestic relations were governed by civil law. Thus, we devoted ourselves to the amendment of family or domestic relations legislation. This was accomplished by submitting a bill for a new code of law to the legislature that completely overhauled our domestic relations system. Our interpretation of the need for modernization inevitably drew our attention to the agrarian sector, which has extremely high priority within our agenda. We felt that agrarian relations and institutions should not be governed by civil legislation. Our effort in this area could not be confined to the drafting of a single piece of legislation but, rather, required creating a well-organized, coherent, comprehensive code of conduct in this sector. In other words, we felt we needed to develop an Agrarian Code, and that is precisely what we did. In developing this new code, we considered the human element, the concept of "rurality," the purpose of agricultural activity and of its regulation, production facilities and human control of the environment and environmental management. We also proposed establishing an agricultural jurisdiction. Our efforts to streamline federal government led us to examine existing administrative procedures. We all know that development is impossible without a sense of confidence in government. And this sense of confidence is achievable only by properly regulating the actions of civil servants, limiting their discretionary powers and extending legal protection to all facets of the national reform plan. We soon found ourselves up against a serious problem, that of the lack of a criminal policy that safeguards constitutional rights while, at the same time, ensuring effective criminal investigations. We need to be aware of the selective manner in which our criminal justice system operates. It seems as though the label of "criminal" is applied only to misdemeanants or petty offenders while, nowadays in El Salvador, those who violate universal legal rights or commit crimes against society as a whole (environmental crimes, gross fraud, drug trafficking, corruption) are prosecuted with less than due diligence or expeditiousness. We are suffering from the lack of an adequate, comprehensive crime prevention

system. Moreover, the efficiency of current efforts to rehabilitate criminals is well below desired levels. Finally, our reform efforts in the area of labor legislation are just about complete. In the process of this reform, we studied and streamlined the entire legal system in this area and recently submitted a bill for a new labor code to the legislature. Institutional Weaknesses (Design, Organization and Control) We should add to the legal problems described above the problem of inadequate functioning of institutions. This dysfunction, while caused in part by existing legislation, also involves other factors such as economic constraints associated with underdevelopment, budget deficits, inadequate training and the absence of a sense of social responsibility to guide the actions of our public officials and, in some cases, poor leadership and a lack of necessary self-imposed "productivity" or "efficiency" targets within the justice sector to resist the weight of social demands. Our courts lack the potential to satisfy existing social demands for the administration of justice. This problem is linked to a number of different factors: • inadequate technical training of those operating the justice sector; • administrative systems that favor "delegations of powers" (take, for example, the current paradoxical state of affairs in which judges are wasting time on strictly administrative tasks while mere employees are taking over their judicial functions); • the need for an intensive training plan for prosecuting attorneys to complement their professional preparation, elevate their position and provide clear insights into their roles as public prosecutors; • the need for adequate technical training for public defenders; • the existence of large numbers of prisoners waiting to be sentenced (well above a reasonable tolerance limit) in a justice system that, theoretically, upholds the principle of the presumption of innocence; • the inability of the country's prison system to implement correctional programs genuinely concerned with the future of its prisoners, etc. Moreover, perhaps due to the fact that we have been focusing our attention and resources on the war, we have failed to develop any alternatives to punishment by imprisonment. We need to admit to the fact that, generally out of ignorance, both the legal profession and society in general fear the alleged ineffectiveness of such penalties. We have already completed a bill for a new correctional code to address this issue. It is currently pending presidential approval for submission to the legislature. El Salvador still lacks modern criminal investigation methods through which its prosecuting attorneys and judges can ground their decisions in legally obtained evidence, without the need to resort to interrogation. In my country, the general feeling is that, in order to be effective, an interrogation must be "tough." This oftentimes results in interrogations that degenerate into various forms of torture. As far as administrative problems are concerned, our recordkeeping systems are

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inefficient and frustrating. Many of our institutions have manual filing systems, which are highly unreliable and painfully slow. In general, administrative systems (including job-assignment systems, promotion systems based on merit, tracing and tracking systems for files or petitions, financial management and statistical systems) are obsolete, inadequate and, worst of all, allow certain "bureaucrats" to carry on the appearance that the work is being accomplished. (This practice of work "simulation" is, unfortunately, extremely widespread throughout our administrative machinery of government and is the inevitable consequence of dysfunctional, obsolete systems.) Lack of an Independent Judiciary: "Dependence on the Bureaucracy" Another important symbol of the justice system crisis in El Salvador and throughout the region is the lack of one of the basic guarantees of a republican system of government, namely an independent judiciary. There has been a great deal of talk about the concepts of "external" independence, or the independence of the Judiciary vis-a-vis the other branches of government, and "internal" independence, or the independence—with regard to judicial functions—of judges vis-a-vis all other levels of the Judiciary, including the Supreme Court. However, today, there is another source of corruption of this republican principle: that produced by inadequate administrative systems. For example, we all know that, due to chaotic job assignment procedures typical of mismanagement, many functions that should rightfully be reserved strictly for judges are currently delegated to administrative officials or mere employees who, at best, have taken a few courses in law and who, in many cases, have no legal training whatsoever. We know this practice, which is extremely widespread, is at the root of one of the most serious problems affecting our already tarnished justice systems and one of the most dramatic and statistically significant problems threatening the independence of our judges as prescribed by the Constitution: The judge is no longer the judge! The harmful consequences of this situation are visible on a daily basis: attorneys are more interested in talking to "the person in charge of the case" than to the judge per se. And this problem could easily be avoided. It has been demonstrated, for example, that judges spend most of their time on strictly administrative matters, time which could be used to discharge many of the judicial functions currently delegated to other officials. In my opinion, this is one of the most tragic aspects of the justice crisis. We need to ensure that social controversies are settled by constitutional judges. The Problem of Legal Training Legal education in El Salvador continues to be inadequate. We cannot count on a new generation of legal scholars and administrators to "miraculously" change the system on their own. Such an expectation would be unrealistic and misguided in the context of the current academic level.

El Salvador's legal education system is currently in the hands of an overly large number of small universities with very few full-time law professors, supplemented by the use of part-time professors paid by the class-hour. Our educational institutions have no consciousness of the fact that the university is essentially a think tank or that institutions of higher learning should focus their efforts on the quest for solutions to important nationwide problems. Theoretical and empirical legal research in El Salvador, where it exists, is embryonic at best. Our libraries are extremely limited. Graduate study is something completely new and available only on an extremely limited scale (only two private universities currently have graduate programs). There is presently no such thing as doctoral studies in El Salvador. Teaching procedures are essentially based on "jurisconsult" and memorization methods and fail to develop a sense of critical judgement. Law students are permitted to serve as attorneys, even as defense attorneys in criminal cases. There is no need for me to belabor the seriousness of the consequences of an inadequate system of higher education. Let me say only that, unless our countries' universities provide needed "intellectual oxygen," we have no chance whatsoever of producing lasting change. As far as this matter is concerned, I see a strong dialectical relationship between training plans and the design of justice systems. On one hand, putting all our efforts into reforming university curricula without accompanying reforms in the justice system does not meet "real" professional profile requirements. If such were the case, new graduates would be condemned to suffer the consequences of the rift between their newly acquired intellectual background and emerging labor market requirements, and the resulting problems in finding employment in their professions. On the other hand, a unilateral change in the justice system without coherent reforms of university curricula is also bound to fail, in that system operators will unavoidably cling to old practices, thereby undermining the efficiency of the process of change. I hope this demonstrates the need for close links between reforms in the university system and changes in professional requirements. El Salvador is already taking action in this direction through curriculum reforms, text book production, teacher training, publication of a Law Review and significant improvements in its libraries. Public Education and Justice as a Service Thus far, we have referred to training as a means of enhancing the efficiency of justice system actors. However, there is another, equally important facet of this issue, namely the education of the average citizen in the proper "use" of the justice system as a service. The justice system cannot revive its social leadership role (and this is crucial in a democratic system of government) without creating the conditions and opportunities needed for the public to discard its notion of this system as something alien and incomprehensible. The public needs to understand how the system works and how to use it and must be capable of critically judging it as well. For the most part, the justice crisis is not currently perceived by the public at large

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The Justice Crisis and the Cost of Mismanagement In studying the justice system crisis, we tend to overlook one of its most important facets, particularly in poor or impoverished countries like our own. I am referring to the cost of current justice systems. This is an area in which the mismanagement of resources that results from a poorly planned or totally unplanned justice system can easily be determined. The justice sector is currently suffering from extremely costly, ineffective communications systems, costly overlap and duplication of effort and mismanagement of its human resources. This generates an overabundance of officials and workers that reduces rather than increases the system's operating capacity. Reliance on written systems has produced a costly civic and organizational management system that attributes more importance to paperwork than to the human element (whose inefficiency is obvious.) The inefficiency of the criminal justice system in investigating crime is blatantly apparent. The penal system has proven incapable of either preventing or of prosecuting those responsible for the "financial drain" on government. Huge sums of money are spent on preserving obsolete tools that could be better used for the acquisition of appropriate technology. I hope this brief outline, which is only a sample of the long list of problems plaguing our justice system, helps to focus some measure of attention on this issue. Technology Technology is another issue that needs to be addressed in evaluating the true extent of the justice system "crisis." Over the past 50 years, we've seen radical changes in trade relations in quantitative terms, as well as in terms of the complexity of corresponding operating mechanisms, their expediency, their geographic scope, their political importance, etc. However, if we take a moment to observe a present-day court and compare it with a court of some 50 years ago, we probably will not find any major differences. This fact in itself illustrates the extent of the technological gap and the need to breach this gap. A Preliminary Conclusion In discussing the justice system, we have examined the inadequacy of its regulatory function, its institutional weaknesses, its dependence on the bureaucracy, the inadequate training of system actors, the failure by the general public to look upon the justice system as a service, the high costs of its inefficiency and its technological gap. As I have said before, the Salvadoran public reacts to these negative factors

as something that affects it directly, such as the unavailability of a social service. In general, it is not considered something to be resorted to in case of need. Most people's contacts with this world are generally "coactive."

with suspicion and alienation. Salvadorans continue to perceive their justice system as alien, unjust and inefficient. Current laws are perceived as having been "created by others" and have failed to win the trust of the very people they are meant to protect. All these factors, which in themselves are serious enough, are even more serious when we consider the direct relationship between the role of the justice system and the preservation of political stability under a democratic system of government. Thus, if there is one basic characteristic common to all legal subsystems for the administration of justice, namely civil, penal, labor and commercial law, etc., it is their ability to afford solutions for the settlement of controversies or, in other words, their ability to offer a less violent alternative to a private solutionâ&#x20AC;&#x201D;which oftentimes produces further controversy. If justice systems do not actively contribute to reducing social violence in this way, they rapidly lose a large measure of their legitimacy. However, political stability is largely dependent on the degree of successful social pacification. Thus, I see an extremely close relationship here between the political arena, which is particularly delicate in my country, and the judicial arena. THE NUMBERS We have passed out copies of a study entitled "The Salvadoran Justice Sector in Numbers" accompanied by a small pamphlet providing an even more condensed summary. I suggest you take a moment to glance at the pamphlet to help you better understand the figures I am about to present in an effort to illustrate my various points. El Salvador has a population of 5,395,367 inhabitants and the following resources for the administration of justice: Figure 1. Justice Sector Budget Year

U.S. Dollars

Colones

1990 1991 1992 1993

43,770,750 48,476,945 57,802,660 75,056,260

380,805,530 421,749,420 502,883,150 652,989,460

Figure 2. Breakdown of 1993 Budget Resources by Institution Judiciary Prosraiitiigj^rra^sOBifee Public Defender's Office Human Rights Bureau Ministry of Justice Federal Police Crime Investigation Commission

27,722,070 1,869,820 2,043,200 1,221,475 10,373,320 32,815,465 2,405,612

241,182,010 16,267,430 17,775,840 10,626,830 90,247,890 255,960,630 20,928,830

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The Judicial system of El Salvador consists of 423 judges, excluding Supreme Court justices carrying out judicial business "in chambers" and presiding over court sessions. The ratio of judges to inhabitants is one judge per 12,755 inhabitants. There are 305 Justices of the Peace and 118 District Court judges. There are also 32 Appellate court judges and 14 Supreme Court justices. The country is divided into 14 departments, with 22 major cities (populations over 50,000 inhabitants.) There is an average of 30.21 judges per department although, in practice, the distribution of these judicial officers is somewhat lopsided, with a total of 134 judges concentrated in San Salvador, Santa Ana and San Miguel for a combined population of 2,438,900 inhabitants. I believe that the information presented in the aforementioned study, of which you all have copies, provides a good overview of the justice system in my country. THE NATIONAL REFORM PLAN We have already successfully implemented a number of reform efforts in response to the various problems I have just described. Universities Curriculum Reform. In January of last year, the country's three major universities began a major overhaul of the curricula for their respective law schools with the assistance of foreign consultants. Strengthening of Libraries. The shortage of up-to-date reference materials is one of the most serious problems confronted by the student population in El Salvador. Either they are unavailable or their high cost makes them unaffordable. Thus, we felt it essential to strengthen libraries in universities and other judicial institutions used by system actors. In doing so, we carefully selected pertinent materials ranging from basic texts to works presenting the latest developments in the field of legal science, thereby compiling a list of 600 titles forming bona fide basic modern law libraries. These library materials were donated to seven national universities, all of which are preparing special programs to advertise their new acquisitions and to promote routine consultations of these new reference works. Teacher Training. Among the stated objectives of the Judicial Reform Project currently being implemented by the Salvadoran Ministry of Justice with economic assistance from the United States Agency for International Development (USAID) is the training of educators responsible for the preparation of future attorneys and justice system actors. For two years, more than 50 law professors have been sacrificing part of their leisure time to attend refresher training courses. We organized 12 intensive six-week

Personnel Structure and Organization of the Judicial System

seminars on topics such as the legal theory of crime, criminal procedural law, investigative methods and procedural due process, with top experts from Argentina, Chile, Colombia, Costa Rica and Spain conducting course sessions. These training activities are expected to produce a multiplier effect, with their benefits passed on by participating professors to their regular students. Textbook Program. In an effort unprecedented in Central America and the Caribbean, various groups of Salvadoran researches, with occasional assistance from foreign authorities, have drafted a Manual of Criminal Law—Basic Edition—and a Manual of constitutional law. These manuals, which have already come out, bring together the highest level of knowledge in their respective areas in the world, contain comments on Salvadoran legislation and are clearly oriented to their pedagogical and university objectives. The works that are expected out next include a manual of criminal law— special edition—and a Manual of Financial Law. The publications, proposed and supported by the Council of Deans of Law School Faculties of the country, will be sold at cost so that they are accessible to the greatest number of university students. Additionally, the Revista de Ciencias Juridicas has been in publication for the last year. This publication fills a gap by providing an ongoing means of updating and deepening knowledge originating from the pens of national and foreign experts. Reform efforts on the university level also include a Law Clinic Program promoting use of case study methods in the teaching of law, including use of a videotape library as a teaching aid, as well as a Legal Aid Program in support of services provided both by law students and by the public defender's office. Institutions The Current Roles and Reform Plans: National Judicial Council. According to Article 187 of the Salvadoran Constitution, as amended in October of 1991, the National Judicial Council is an independent institution in charge of nominating candidates for appointments as Supreme Court justices, appellate court judges and district judges. It is also responsible for the organization and operation of the Judicial Training School, whose purpose is to improve the professional training of judges and other judicial officers. The "National Judicial Council Act" passed by the legislature in December of 1992 sets up the Council in such a way as to ensure its independence from government bodies and political parties and better ensures its pluralist nature by modifying its composition to include representatives from the country's law schools and the Attorney General's Office, as well as practicing attorneys. Judicial Personnel Statute. The intent of the Law of 1990 establishing a judicial personnel statute, as subsequently amended, is to promote the professionalism and advancement of judicial officers and employees, reduce turnover and safeguard their functional independence. It also governs working relations between judicial officers and employees, hiring, promotion, transfer and advancement procedures, as well as

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Judicial Oversight and the Disciplinary System. The Judicial Inspection Office conducts mandatory annual inspections of the nation's courts in an endeavor to detect and resolve problems and needs. The judicial personnel statute establishes the basic elements of investigations designed to evaluate court performance and guarantee that proceedings are conducted in accordance with applicable rules of procedure. Depending on their findings, these inspections may result in disciplinary action. Disciplinary proceedings are, by nature, subject to review and any judicial officer or employee removed from office or dismissed as the result of a disciplinary action may petition the Supreme Court for reinstatement. Infrastructure. Supreme Court infrastructure has been expanded considerably since early 1991, with new court facilities springing up around the country, along with improvements to existing facilities. Over the past four months the Supreme court has been inaugurating a new building every week across the nation. Compensation and Benefits. As far as compensation is concerned, the importance of safeguarding the ability of judges to discharge their functions impartially and in a manner which is free of any outside influence in all matters within their jurisdiction cannot be overemphasized. Payment provisions of the judicial personnel statute are based on the principle of equality or of equal pay for equal work, according to the nature of each position, its complexity, the degree of responsibility involved and other factors. Internal and External Judicial Independence. The principle of an independent Judiciary includes the dual concepts of external and internal independence. The external independence of the Judiciary is guaranteed by the separation-of-powers characteristic of democratic governments, in which each branch of government is complementary to and independent of the others. The following recent constitutional amendments endeavor to strengthen the external independence of the judicial branch of government: • The extension of the term of judgeships to nine years, with a third of the judges in office to be replaced on a rotating basis every three years; • The possibility for reelection to a second term of office; • The requirement that the removal of a judge from office be subject to the existence of causes previously established by law and to a two-thirds vote by duly elected deputies; Judges are elected to office by the Legislature from a list of nominees presented by the National Judicial Council. Virtually all potential judicial reforms are, to some extent, conditioned by economic factors. Another constitutional amendment has given the Judiciary financial self-sufficiency through the earmarking of a minimum of 6 percent of current government revenues, to be phased in gradually within four years from the date of

the rights and obligations of corresponding personnel and applicable benefits and disciplinary measures. The responsibility for the administration of this law lies with the Supreme Court.

enactment of the constitutional reform act. Thus, its allocation for 1993 is equal to 3.16 percent of the federal budget. In a parallel effort to safeguard the internal independence of the Judiciary and to eliminate all possible sources of judicial corruption, Article 188 of the Constitution was amended to provide that the holding of a judgeship is incompatible with the practice of law or of the profession of notary public and is incompatible with employment as an official or employee in any other branch of government, with the exception of teaching positions and temporary diplomatic assignments. These reforms extend down to the lowest tiers of the judicial system, to the justices of the peace, who have the most direct contact with the general public, by requiring, first, that all justices of the peace be attorneys, unless certain exceptional circumstances are present; second, that justices of the peace meeting the aforesaid requirement have job security and that they be included within the scope of the judicial personnel statute; and lastly, that justices of the peace be included among the judicial officers nominated by the National Judicial Council for appointment to the Supreme Court. Accordingly, these constitutional reforms required a corresponding amendment of the provisions of the judicial personnel statute pertaining to judges. Ministry of Justice According to the Constitution of El Salvador, the Ministry of Justice is composed of a Prosecuting Attorney's Office, a Public Defender's Office and a Bureau of Human Rights. Prosecuting Attorney's Office. As part of the judicial reform effort, the Prosecuting Attorney's Office was endowed with various assets ranging from updated libraries to computer equipment, vehicles, communications, data transmittal systems and office furnishings. The Judicial Reform Project included the donation of a specialized law library with over 600 selected works as part of its support of Salvadoran judicial system institutions. More than 20 seminars of varying lengths have been conducted over the past 24 months, attended by 198 prosecuting attorneys. This intensive training program addressed topics such as legal rhetoric, legal logic, advanced grammar, legal theory of crime, criminology, criminal procedure, procedural issues, etc. These seminars were conducted by Salvadoran professors and top experts from Argentina, Chile, Colombia, Costa Rica, Spain and the United States. El Salvador still has no personnel statute for attorneys and other personnel in its Prosecuting Attorney's Office. Thus, the Ministry of Justice's plans for this year include the drafting of a new bill establishing a personnel statute for this Office that will govern working relations between attorneys and other office personnel, recruitment requirements, promotions, advancements and eventual dismissals. At present, there are no established promotion, advancement or dismissal procedures. All such matters are decided at the discretion of the Chief Prosecuting Attorney. As part of his duties, the Assistant to the Chief Prosecuting Attorney monitors, evaluates and supervises the work of all office personnel and reports his findings to the Chief Prosecuting Attorney. He also informs the Chief Prosecuting Attorney of

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appeals filed against proceedings conducted by office attorneys and investigates irregularities in the conduct of office officials and employees. The work of individual office attorneys is monitored by prosecuting attorney coordinators. In 1990 we organized a Legal Auditing Program for the regular supervision and evaluation of the work of prosecuting attorneys and other members of the legal staff of the Prosecuting Attorney's Office. In January of 1992 we established a Legal Auditing Unit within the Prosecuting Attorney's Office charged with the general supervision and evaluation of the work of prosecuting attorneys and other members of its legal staff. All functions assigned to the Prosecuting Attorney's Office are discharged independently of the other branches of government. The independence of the Prosecuting Attorney's Office in discharging its functions may not be restricted or encroached upon by any other authority. Our amendment of Article 192 of the Salvadoran Constitution is designed to strengthen the independence of the Prosecuting Attorney's Office and improve its chances of getting an agreed-upon candidate, appointed to the position of Chief Prosecuting Attorney. This is accomplished by increasing the required number of votes for appointment to a two-thirds majority. This same majority is also required for the removal of a Chief Prosecuting Attorney, an action which must, furthermore, be well grounded in legal causes. Public Defender's Office. Through the Judicial Reform Project we also endeavored to modernize and upgrade the physical assets of the Public Defender's Office, including the creation of a specialized library. The project also provided training to office staff and to public defenders in particular. Students were given courses in criminal defense and refresher legal training in areas such as legal logic, advanced grammar, legal rhetoric, human rights, criminal procedure, constitutional law, constitutional guarantees and the criminal justice system. These courses, of varying lengths, were attended by all 108 attorneys presently assigned to the Public Defender's Office. As part of the Public Defender's Office program for this year, we are planning to have advanced law students carry-out their internships with this Office, to which end these students are being prepared in a series of seminars conducted by the Judicial Reform Project Research and Training Center. The idea is to enable law students (who have completed most of their required course work at their respective universities) to complement their academic education in certain areas overlooked or inadequately addressed by university law schools and, at the same time, help them develop an adequate, practical case resolution model, which is precisely what they will be doing throughout their period of social service. The goal is to provide them with a specific, rational, viable tool enabling them to use their academic knowledge in a broader and more complex manner than is generally required by the observance of rules or socalled "rites" of procedure. As part of the program, the students will study and discuss the three facets of the criminal justice system, namely criminal policy, criminal law and criminal procedural law. As far as selection procedures for public defenders are concerned, we have taken special care to ensure that they fulfill all academic and intellectual requirements for the proper performance of their duties. All public defenders are required to be law

school graduates. Current statistics show that 80 percent of our public defenders are attorneys and the remaining 20 percent are law school graduates. Among our goals for 1993 is the establishment of a personnel statute for public defenders. The strengthening of the Public Defender's Office required by recent changes in trial-based defense procedures championed by the Ministry of Justice is the first step towards its gradual restructuring. Bureau of Human Rights. Since its inception, the Bureau of Human Rights has gradually taken on a leadership role in public life. The Bureau has been conducting the following projects in an endeavor to discharge effectively its task of defending and promoting human rights: • Monitoring and investigation of human rights violations in order to establish a control system with the capacity to record and interpret general human rights conditions in El Salvador; • Prisoner registration for purposes of establishing a complete, accurate record of the national prisoner population with information on their place of confinement; their biological, psychological and social condition; and on the legal causes of their incarceration in order to strengthen the employment of immediate remedies against unlawful confinement such as the writ of habeas corpus; • Study of the current situation of Salvadoran Indian women to help foster their development and preserve their cultural values; • Training and education in human rights issues in order to create a Human Rights Institute that will endeavor to foster maximum broad-based social participation in a comprehensive approach to the promotion of human rights with economic, social and cultural elements. The Bureau budget for implementation of these specific projects and for performance of its ongoing monitoring and reporting functions continues to be inadequate. To address this problem, we have developed a comprehensive institutional strengthening plan to raise domestic funds and formulate an international cooperation and assistance plan that will enable the Bureau to discharge its functions properly. In a resolution passed by its Consultative Council, consisting of representatives from all sectors of the country, the Bureau set for itself the goal of financial selfsufficiency as a means of ensuring its bona fide independence and freedom of action. LEGISLATION The Supreme Court has presented the legislature with a reform bill for the Code of Civil Procedure designed to streamline rules of procedure and ensure the observance of constitutional principles. We have simplified rules of procedure in civil matters and made the presence of attorneys mandatory in the main proceedings involved in civil actions. Last September, the Minister of Justice also presented to the legislative Assembly a Proposed Domestic Relations Code accompanied by a Law for Juvenile Offenders, which together replace the outdated Code for Minors.

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In order to comply with the Peace Accords, a Proposed Agrarian Code is now being presented to the Assembly. The Code synthesizes previous legislation which had been fragmented and offers new solutions to the sector's problems. As has already been mentioned, a new Criminal Procedure Code is being drafted and a new Criminal Code and Prison Code are being planned. SUGGESTIONS FOR THE INTER-AMERICAN DEVELOPMENT BANK To begin with, today, any effort to modernize or streamline the machinery of government is necessarily grounded in and carried out on different planes involving economic assistance, time, model and political consensus, which makes this issue especially complex. A study of the influence of these four elements and of their different forms of interaction is also relevant to justice system reforms. An in-depth study of these elements can help us draw a number of useful conclusions about possible regional assistance from the Inter-American Development Bank. I would like to discuss a few ideas that, I feel, are important to the success of any sector reform and improvement program. • First of all, economic aid should be a product of agreements in which the assisted country is treated with respect and given a bona fide leadership role in the design of the assistance program. • It is important to remember that implementation of these types of projects has a strong social impact. Thus, program performance evaluation criteria must clearly take this fact into account. While this may seem obvious to you now, the fact is that this has not always been taken into account in international assistance efforts. • The time frame for the achievement of sought-after results should be a mediumor long-term one. The impact of government activities on certain social sectors is largely determined by the human element, public awareness, etc. Thus, as I see it, the goal of strengthening legal protection is attainable only through a dynamic process which is continuously reinforced and consolidated over the course of time. The success of an assistance program in this area is largely dependent on its ability to reject restrictive alternatives in the processes of change. The realities of the justice system reveal a crisis with different interrelated elements. In undertaking a process of change as part of a cooperation program designed to produce changes in a single problem area, no matter how important (such as the regulatory area), other neglected areas will soon quash any attempted improvement in the so-called "dysfunctional" area. This is why, in order to have any chance of success, cooperation programs must be based on multidimensional or multidisciplinary approaches. Thus, as I have said before, technology, education, legislation, and organization are all clearly contributing factors. • Another point whose vital importance requires that I suggest that it be addressed by the Inter-American Development Bank is the need to contemplate ongoing projects. In poor countries like ours, the compelling need for efficiency demands

we lay our "bricks" one on top of another. International cooperation is of fundamental importance to our region. This is why it is essential that we take maximum advantage of the potential fruits of each such effort. Moreover, we cannot overlook the need for a consistent project approach. To accomplish this, we need to devise a means of ensuring that different reform processes are not mutually contradictory since this may jeopardize their legitimacy. In my opinion, the sensible course of action is to draft a basic letter of understanding, within the framework of this very forum for example, which establishes priorities and approaches to efforts in top-priority areas and which can promptly be used as a basis for the detailed design and implementation process. This process will be supported in any event by a team of local and foreign consultants and will have Bank and government supervision. • Before making any decision, we must clearly understand the urgency of this matter. We need to do everything we can to eliminate the possibility of bureaucratic methods and procedures hampering the formulation of an effective course of action that can be implemented rapidly. It is equally important to reduce our current emphasis on extensive sector studies and surveys. The need for change and its goals are clear. The next step is to get down to business. • Under present conditions, in order for a process of change to achieve the optimal level of efficiency we are all hoping for, it must be regional in scope. Without a regional integration effort, we jeopardize the feasibility of country projects. Processes of change are reinforced and nourished by regionwide trends. Regional integration should be viewed as a good consolidation strategy for an effective justice system. This calls for a two-pronged approach. On the one hand, streamlining justice systems means better adaptation to conditions in each country. On the other hand, we also need to work towards strengthening the integration process to help sustain the streamlining process. It is clear to me that, under present conditions, the viability of the legal protection and economic development in regional integration hinges on the existence of an economic system with a specific country development capacity. Economic development is nurtured by relations between different nations. This is self-evident and makes the idea of stepping up regional integration that much more important. There are a number of legislative areas and regulatory systems of the region's countries that should be reconciled. Studies of issues such as the regulation of business and industry, the formation of multinational firms, certain crime-related issues such as the drop in tourism associated with high crime rates—all of which are burning issues in Europe—should be mandatory. Likewise, a valid justice system requires an international consensus for optimal viability. International human rights conventions are a good illustration of this point. To ensure successful integration, we should initially skirt certain controversial issues such as sovereignty. I believe a good strategy in this respect is to forge ahead on points about which there is a clear consensus. Having achieved some form of progress, certain controversies will become increasingly obscure, and the rest will be viewed from within the perspective of an already well-advanced process. This strategy will prevent their jeopardizing the integration "model." • We need to study integration processes in other parts of the world such as Europe

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and North America, isolate transferable elements of these processes and generate our own integration process. This would mean a major effort on our part, but the potential results are encouraging. The first step is to collect and process existing information. I suggest we examine issues such as the real possibility of organizing a Central American court; the free movement of workers, capital and commodities; regional record systems; the need for constitutional reforms at the individual country level, and so on. â&#x20AC;˘ The potential role of an efficient justice system in fostering economic recovery is an issue of fundamental importance. The need for a "predictable and independent" justice system to promote inflows of foreign capital is self-evident. But this is not the only issue. Nowadays, for example, there are a number of tangential government services "revolving" around the justice system that are being inadequately performed and which, in some cases, operate at a loss. These services (communications, domestic mail service, cold storage services) could be offered by private enterprises subject to regular monitoring and control by administrative bodies within the judicial system. Consequently, I would like to present two types of suggestions in regard to processes of change: general suggestions for the region as a whole and specific suggestions for El Salvador in particular, both drawing on the foregoing concepts. Suggestions for the Central American Region Education Central American Legal Publishing House. The organization of this type of enterprise devoted strictly to legal publications is vital to Central America at this juncture. We are producing valuable teaching materials and research findings that could be sold in the Central American market. This would capitalize on current similarities among countries of the region as well as the integration process. Central American Graduate Program in Integration Law. A joint effort by public and private universities throughout Central America to design and implement a graduatelevel law program specializing in integration law is imperative. The Bank could make a direct contribution to this effort by arranging for visiting professors from the United States, Canada, Mexico, Europe and the Southern Cone countries and for exchanges of professors specializing in this field. Central American Legal Library System. This is another element whose organization is imperative. We cannot integrate what we do not know about. Current legal research efforts in our countries are extremely skewed. Empirical research must be shared to promote regionwide progress in this area. Legal Reforms. We propose the immediate establishment of a Commission of Central American National Institutes (comprised of existing institutes rather than new institutes) devoted to the study and collection of data and the recommendation of reforms and improvements in areas such as civil law, civil procedure, commercial law, private

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Institutional Strengthening and the Establishment of New Institutions. We need to strengthen the Central American Court as a focal point for promotion of the integration process. We also need to enhance the Central American Parliament and conferences of chief executive officers from the region. We should also establish a Central American Council of Attorneys General in response to the visible need to strengthen Attorney Generals' Offices in all Central American countries. One way of accomplishing this task is through the exchange of experiences, working methods and officials. We also consider the Central American Council of Ombudsmen to be of crucial importance for the protection of human rights. By vesting it with an effective monitoring system and reporting capacity, it can reduce the frequency of abuses of power by the Executive or by either of the other two branches of Central American governments. Suggestions for El Salvador Throughout this presentation, I have repeatedly stressed the importance of sound approaches that foster integration, not only at the international level, but at the nationwide level as well. Thus, I would like to propose a series of possible subcomponents for a country project for El Salvador. Some of these concepts are best suited to countries like my own that are recovering from a long period of civil warfare. Others are applicable only to the specific cultural, political and economic realities of El Salvador. Still others are useful in all Central American countries to promote integration from within. Strengthening the Public Perception In these types of development projects, we tend to forget that the only effective means through which the legal protection-economic development tandem or the judicial reform-democracy tandem can penetrate any organization, group or society in general is through a public consciousness-raising campaign. This type of campaign must include a strong communication component to promote discussion and help to form public opinion on these issues within different segments of society. In our opinion, it is vital that this component include specific promotional activities extolling the principle of the rule of law and furthering the notion that social and economic development is impossible without legal protection and social harmony. Strengthening Administrative and Statistical Systems through Pilot Projects Effective administrative systems give the public confidence in the sound operation of government institutions. However, this cannot be achieved without streamlining current procedures since, in the course of El Salvador's rather haphazard development

international law, labor law and criminal law. Copies of the studies could be widely disseminated to universities, think tanks, technical departments of Legislatures, professionals and private businesses.

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process, we have often been forced by circumstances to improvise. The solution of this problem is largely a matter of reexamining existing administrative procedures and of properly training officials for the introduction of new, more effective options that respect the interests of the respective beneficiaries. The mechanisms we propose in this respect do not require the extensive costly sector studies widely used in the past and which have proven to have little practical value. As an alternative, we suggest a broad spectrum of pilot projects which, through hands-on experience, will provide penetrating insights into our institutions and facilitate transfers of proven new technology to other offices or agencies. The end result of this approach will be general use of this new "technology" based on smallscale experiments. We favor this approach because it invariably produces concrete results, is far more economical and eliminates the risk of experimentally imposing nontransferable models or unproven concepts on an entire system. National Legal Policy Office There is a saying to the effect that law fills the gaps left by other human-relations systems such as the economic, social and political. This view has been reflected in the policy of leading international assistance organizations, which have traditionally focused on socioeconomic development, generally ignoring legal issues and judicial affairs. Fortunately, these organizations are changing their way of thinking. This extremely gratifying forum is an indication of the change taking place. We have also noticed that the World Bank is attempting to promote judicial reform projects in a couple of Central American countries. The key to ensuring that justice systems are both effective and equitable is simply a good balance between these two elements. There is another type of balance, one which is difficult to achieve and maintain and one with regard to which there is presently a great deal of sensitivity in El Salvador. I am referring to tensions involving national versus international or domestic versus foreign perspectives. On the one hand, project designs must display a healthy dose of nationalism, respecting the cultural, political, social and legal values of each individual country. On the other hand, we cannot dismiss the fact that, nowadays, it would be injurious, if not impossible, for any nation to act as if it were an island. We are moving progressively closer to the reality of a world community. This makes it imperative that we respect the national character of assisted nations and, at the same time, understand and work on the international plane as well. Europe '92, the North American Free Trade Agreement and other similar instruments illustrate how an international perspective is as important as a domestic emphasis. This imposes a need for balance, which is essential in legal matters. El Salvador needs to establish a legal planning office to ensure that its different government systems are mutually complementary and consistent with the Central American system. However, this does not imply a sacrifice of one for the other or a traumatic transition. We will need to display a great deal of wisdom to make this a reality, but while it is a rather ambitious undertaking, it is not an impossible task. The work of the legal planning office should cut across criminal policy, private and

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Training of Officials Constitutional judges are not the only officials in need of continuing in-service training. This type of training is equally essential for government officials who discharge administrative functions such as the maintenance of records for real property or patents and trademarks, as well as for prosecuting attorney's office and public defender's office officials, bank officials and customs officials. The provision of continuing intensive training for educators such as law professors is equally important. Thus, training is a mandatory element of any development project. Technological Innovation We need to take immediate steps to provide El Salvador with all the advantages of computer and modern communications technology, without bypassing necessary technical transition phases. The IDE should incorporate this element in its efforts to promote legal certainty as a prerequisite for economic development. We cannot manage what we do not know, we cannot gain this knowledge without previously organizing available information, and information in our area of work is virtually always reported in large numbers. Inspection and Adjustment Systems Our systems must be made to work as designed and their streamlining must afford us the legal certainty necessary to foster economic development. The responsibility for making this happen is, by necessity, vested in so-called "bureaucrats." Thus, it is not enough to confine ourselves strictly to the technical training of our officials. We need to design and develop a new profile for the custodians of government property and services. These officials should display a completely different attitude in regard to their work and their job performance based on two mutually complementary value systems: one that is highly practical and demands that they carry out their work quickly and with due and proper diligence and another that is drawn from a deep-rooted sense of social responsibility. This will ensure that the power associated with the holding of a public office is not abused. In other words, there is a first level of values that promote expediency in the rendering of services and fostering development, complemented by a second set of values that, through a variety of different means, assure that public officials conduct themselves appropriately. The combination of the two prevent violations or abuses that can produce feelings of distrust towards a particular official or an entire system. We cannot elevate the position of judicial or executive officials without affording appropriate security through an adequate and effective civil service system or judicial personnel statute. These officials need to feel secure in order for them to, in turn, create a sense of security in others. All of this requires proper training, not in moral areas, but in order to endow these officials with a proper knowledge of applicable disciplinary rules, of promotion

international policy, administrative policy and commercial and civil legislation policy areas and should include a study of constitutional law.

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CLOSING REMARKS Again, I would like to express my appreciation to the Office of the President of the Inter-American Development Bank for giving me the opportunity to make this presentation. I would also like to thank all of you in the audience for your patience and attention. I have tried to give you as honest as possible an overview of this topic. Anything less would have generated disinformation. Our conclusions are all drawn from numerical data, because we believe in the need to ground ourselves in reality. We have also proposed a series of solutions that we consider to be both realistic and feasible. The Bank would do well to pay special attention to the response it has received to its announcement of this meeting. The presence in this very room of Chief Justices of Supreme Courts, heads of Prosecuting Attorney's and Public Defender's Offices and Ministers of Justice is the best indication of the great need to strengthen our respective systems in pursuit of the legal protection needed to foster our nations' spiritual and physical development.

procedures and of how to work as a team within an organizational structure. The security sought by the Inter-American Development Bank will never be achieved without changes in our public (and private) officials on both these levels.

TRAINING IN THE JUDICIARY

PART III

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Training and Continuing Education for Judges

German Hermosilla Arriagada President of the Court of Appeals of Santiago, Chile, in San Miguel and President of the National Association of Magistrates of Chile

INTRODUCTION It is repeatedly argued nowadays that ongoing education for the judges, officers and employees of our Judiciary is one of the most effective means of modernizing the judicial system. However, it is easy to verify that this task remains an unfulfilled dream—or at best an unfinished business—in our Latin American countries. The argument is based, in turn, on the allegation that modernizing the Judiciary will enable us to better satisfy the growing demand from various sectors of our citizenry for a more prompt, efficient and accessible system of due process for all. Such training is seen as having a clear objective that imbues it with both shape and content. Beyond the mere accumulation of knowledge or information, or the assimilation of abilities, techniques and skills—no matter how valuable and personally enriching these might be for those who receive them—is the empowerment needed to better administer justice. From this standpoint, the training of judges and court officials is aimed at making better use of their wealth of potential and providing for their continuous renewal and, hence, at revitalizing the way in which they administer justice in the courts. However, it is best to establish clearly from the outset that such modernization cannot be achieved by training judges and court officials alone. It will be necessary to take care at the same time, and in keeping with a rational policy responsive to both stages and priorities, to provide the Judiciary with: • a sufficient number of young professionals, carefully selected for their vocation for the law, their capacity, and their aptness; • the right number and types of courts to meet current service requirements; • workable court procedures and legal instruments that are responsive to due process guarantees, transparency and swiftness. This will entail amending existing procedures and instruments so that these goals are not lost in the shuffle;

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• the technical and physical resources needed for optimal functioning of the courts and support services, such as an attorney general's office, legal assistance firms, judicial or court police, departments or institutions of forensic medicine, planning and administration; and, • sufficient public funding, guaranteed by the constitution, to permit the training and retention of the best professionals in the branch of the judicial service where their vocation lies. The Dictionary of the Royal Spanish Academy defines capacitar [to train] as "to make capable, to equip to do something."1 Yet when we speak of the training [capacitacion] of judges, the term—without losing any of its original meaning—takes on a much broader sense that in my view consists of four different elements, which, while not actually separate, are at once distinctive and interrelated. These are: • the development of aptitudes and abilities, the learning of techniques; the acquisition of skills, the wise allocation and supervision of tasks assigned among employees and officials, and proper and sensible management of material resources entrusted to them; • the strengthening, updating and deepening of the knowledge of the bodies of positive law, doctrine and case law necessary to hear and decide, in an informed manner, the disputes and the lawsuits that come before the individual courts; • the development of the legal insight needed to properly analyze and summarize the arguments and pleadings made by the parties and the tests and evidence presented, and to reconstruct events as they actually occurred, in an effort to find the fairest and most soundly based solution; and • the equipping of the individual with a clearer perception and grasp of the great principles and values that are the cornerstones of the system of justice and that every judge must internalize and embody in his daily conduct and day-to-day rulings— principles such as independence, impartiality, integrity, balance and deliberation, critical acumen and self-critical insight, firmness and flexibility, and creativity.2 Of the four aspects I have identified, the first two are concerned solely with training proper and the other two with instruction—which I see as a process of equipping a person to reason legally using law and value-based elements, especially when breaking down the issue at hand into its component parts—although both aspects, training and instruction, are strictly combined and intertwined. Moreover, in determining the objectives, content, activities and methods of judicial training programs, and in selecting the persons to be placed in charge of such programs, it must be borne in mind that the trainees will be candidates for positions in the legal service or already serving in the Judiciary. Similarly, proper allowance will

'Diccionario de la Lengua Espanola, Madrid, Spain: Real Academia, 1984. G. Hermosilla A., "Organization de la Administracidn de Justicia", Volume II of Proyecto de Capacitacion, Formation, PerfeccionamientoyPolitica Judicial, Santiago, Chile: published by C.P.U., 1991, p. 58. 2

need to be made for their status as lawyers, or at least as law graduates, when designing activities and applying methods consistent with the training of adults who also hold professional degrees. At the same time, in order to structure the objectives and contents of training for the judicial system, it will be necessary to gain an approximate understanding of the main problems and difficulties faced by the administration of justice in a given country, which can be compiled and pinpointed by surveys and interviews conducted by specialists.3 In this respect, I feel that it would be highly desirable to draw on the critical insights of those who make the heaviest use of the system: the bar associations, public defenders' offices, firms offering legal assistance, human rights commissions, ombudsmen, and other similar organizations. In the case of Chile, and particularly during the period 1987-92, numerous courses, seminars, workshops, conferences and round-tables have been held and much important research carried outâ&#x20AC;&#x201D;with the participation of judges from all over the country, lawyers and professors, both Chilean and foreignâ&#x20AC;&#x201D;on the subject of the administration of justice and the science of law in general. Participants have thus had an opportunity to exchange their knowledge and experience, compare different points of view and agree on several conclusions.4 One of the most visible results of these unceasing efforts has been the idea of an independent school of jurisprudence to provide training and professional instruction for judges and court officials, conceived as a flexible and effective means of performing three complementary kinds of tasks: (a) to select candidates for the service; (b) to train and instruct these candidates; and (c) to continuously improve the knowledge of the sitting judges, in an attempt to solve some of the problems that have been detected in the work of the courts and to correct deficiencies and undesirable conduct. The aim here was to renew the system by training its principal officers and agents, under the premise that the administration of justice in a country depends essentially on those responsible for it. Without in any way disparaging the validity and experience of the different concepts and models of schools or jurisprudence in other Latin American countries, I feel the Chilean concept, with its three-pronged approach, is designed to encompass the functions that are fundamental to a school of this kind: selection, training and upgrading. This concept is based on the notion that the administration of justice in a country can be improved through the training of its judges and officials, not only to better equip

In Costa Rica, the Supreme Court itself commissioned a nationwide opinion survey on the work of the courts. It produced a higher score than for the other branches of government. La Nation, San Jose, Costa Rica, 10 June 1992. 4 These training activities were organized and sponsored by the National Association of Magistrates, the Institute of Legal Studies, the law faculties of various universities (Universidad de Chile, Universidad Diego Portales, Universidad Catolica, Universidad Central, and others); private institutions such as the University Promotion Corporation, the Center for Studies and Development, and the Center for Public Studies, as well as the Bar Association. "Memorias Anuales" of the Asociacion Nacional de Magistrados del Poder Judicial de Chile de 1988,1989, 1990, 1991 and 1992.

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them for their appointed duties but also to make them the engines that drive the changes that society expects of them, so that the justice they deliver, in addition to being equitable and soundly based, will be responsive in some measure to society's dominant values5 and thus be seen, in the eyes of those who come to trial, as credible, trustworthy and worthy of respect.6 SELECTION OF CANDIDATES Selecting candidates for the Judiciary from among interested applicants is, in my view, the primary task of schools of jurisprudence. To perform this task, they must be able to rely on selection programs carefully prepared by specialists and on committees, named in advance, to evaluate and measure the results of the different tests and examinations that the applicants take. Not all law school models provide for involvement in this field, since this option means a direct say in the system for appointing judges and legal officials, which is treated differently in each country and which is legislated by the constitution7 in some cases. Strictly speaking, attracting and rigorously screening students is tantamount to granting them prospective entry into the Judiciary. This is the case since their selection and subsequent training and instruction would be pointless if those who pass the course were not assured of the exclusiveâ&#x20AC;&#x201D;or at least preferentialâ&#x20AC;&#x201D;right to be appointed to a position within the Judiciary. To improve their effectiveness, the critically important selection programs must also be attuned to the profile of the judge or official they are intended to train and to the school's curriculum. The quality or class of students to be selected for admission to the school cannot be overlooked, especially where they have earned outstanding marks in their university studies or display an adequate knowledge of positive law and doctrine. But, important as this is, it is not enough. I believe that, along with other selection factors, ways must be devised to ascertain insofar as possible, the vocation that applicants feel for service in the Judiciary; their judgment and ability to frame legal arguments; their impartiality and sense of justice; their competence and ethical values; their sense of responsibility and discipline; their character and personality; and, finally, their spirit of service. I appreciate how difficult it is to measure these factors, but, if I look ahead to the

5 For Professor Agustin Squella N., socially dominant value systems are those beliefs, feelings, preferences, and ways of thinking and feeling that are prevalent in a particular community of individuals and tend to be reflected in specific norms of conduct by its members over a prolonged period. Volume II of Proyectode Capacitacion, Formation, Perfeccionamiento y Politica Judicial, Santiago, Chile: published by C.P.U., 1990, p. 63. 6 Professors Luis Fdo. Solano C. and Carmen Blanco M. hold that efforts to ensure that justice is prompt, full and not withheld, speak directly to the issue of judicial training and instruction, adding that such efforts should be initiated by the Judiciary itself. Perspectivas de la Formation Judicial, San Jose, Costa Rica: Taller de Mundo Grafico (1992), p. 3. 7 The Law School of Costa Rica, established in August 1981 as an entity within the Judiciary, has no involvement in the process of selecting candidates for judicial service.

complex and delicate duties that these students will have to assume in the future, I can only conclude that it is well worth trying. Possible measures include oral and written examinations to measure both knowledge and personal qualities; psychological tests; the setting of actual or fictitious cases or judgments for analysis or decision; and interviews by school professors and sociologists. I also believe that continuous attention should be paid to the behavior of students during the period of training and instruction. This supervision should be carried out with an eye to evaluating their performance and seeing how well they measure up to the expectations formed by the examiners on the strength of their admissions tests and how well they adjust their conduct to the target profile of the judge or official in question. All this needs to be weighed and evaluated. The foregoing assumes that the prospect of entering the Judiciary will arouse genuine interest in many professionals, which will make it possible for them to be selected in accordance with the criteria indicated. Such interest, however, is linked to the kind of prestige the Judiciary enjoys in a given country and what incentives it is able to offer. This belief is based on the presumption that the calling for judicial service is not in itself enough to outweigh the varied demands the job makes, the exclusive dedication and social sacrifices it calls for, and the responsibilities it entails. Hernan Correa de la Cerda, President of the Chilean Institute for Judicial Studies, argues that "if your goal is to succeed in inviting selected young lawyers to join the justice administration system, you must uncover and demonstrate the ethical values that abound in this career path but also show that society and the government recognize these values and set very high store by them. In order to accomplish this task, it is essential to allocate the necessary funding to ensure that the system functions properly."8 The number of places available in the school each year is obviously determinable by the foreseeable number of judges and officials required by the judicial service in the following year. Moreover, granted that it is not the task of this study center to teach positive or case law, applicants must be required to be lawyers or, at least, to have graduated in law from an existing university. They must also be young professionals, since this will facilitate adequate training and instruction. As far as other formal requirements, disqualifications or incompatibilities are concerned, these must be clearly satisfied as required by the organic laws governing the courts in the different countries. The invitation to fill such vacancies must be publicly and fully disseminated throughout the country with sufficient notice to allow all who meet the requirements and wish to apply to do so. It is also desirable to make public the invitation with as much detail as possible so that everyone is properly informed and competing on the same terms. A matter of the utmost interest, which must be addressed beforehand, involves the rights conferred by selection; the first and most obvious entitlement being, the opportunity to receive training and instruction in the school of jurisprudence in accordance with its current curriculum and on the terms laid down in the pertinent regulations. This calls for no further comment. 8

H. Correa de la Cerda. Proposals for Judicial Reform, Santiago, Chile: Center for Public Studies, 1991, p. 277.

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But, what about applicants who satisfactorily complete the course of instruction? In my view, as I said, they must enjoy preferential rights to appointment to one of the lower-ranking positions in the Judiciary in the manner prescribed by law. This mode of entry into the Judiciary poses no conflict with a civil service career, but rather complements and enhances it by recruiting into the lower grades carefully selected professionals who have been trained and prepared in accordance with the needs of the service. However, I do not think this should be the only means of entering the Judiciary for several reasons. For example, applicants approved for specific posts may not be interested in filling them, so they may remain vacant for a long time; more positions may be created than originally budgeted; and unforeseen events may occur that make it advisable to turn to other professionals. For all such cases, there must be a parallel, and equally rigorous, competitive review and selection system in place in accordance with requirements prescribed by law. As mentioned above, the selection of students for the school is closely tied to the system of appointing the judges and officials and to the requirements that they must meet in order to be appointed. We know that every country has its own system and that each system is different. In Chile, two of the three branches of government—the Judiciary and the Executive—have a hand in such appointments. The Judiciary declares an open competition and proposes a list of three to five candidates for a position. This task is performed by the Supreme Court and appellate courts. The Executive then appoints one of these candidates by means of a Presidential Decree.9 However, competitions of this sort, which are also used in other countries—even when conducted in public and made subject to specific rules that guarantee credibility and ensure equal conditions for all—may not prove to be the most effective instrument for choosing the best candidates. Ordinarily such competitions do not include examinations, interviews, or any assessment of qualities and aptitude for holding posts within the Judiciary. They simply lead to the selection of those candidates whose curricula vitae show the best qualifications or the most complete background, which is not always the same as choosing the best candidates for the required posts, nor can it guarantee that they have a genuine vocation for the judicial service. Bearing this in mind, and taking into account the curricula of the training centers, we can use Spain as an example. She has chosen to devise selection procedures that are both more rigorous and more consistent with the objectives sought. In this way we can seek to arrive at an objective assessment of the aptitudes and qualifications of candidates.10'11 9

Article 75 of the Chilean Constitution and Title X, paragraph 4, of the Organic Code establishing the Court System contain all of the rules governing the requirements that candidates must meet, together with the procedures for declaring open competitions, for assembling the five or three-candidate slates, and for making the actual appointments. They also prescribe how judges and court officials are to be promoted and rated, thus constituting a sort of career path for the judicial service. 10 Chapter V of the Regulations of Spain's Center for Judicial Studies contains the requirements which candidates must meet to enroll at the Center. These include a number of selective elimination tests. 11 Chile's National Congress is currently considering a bill whose provisions were

In my view, the system whereby students enter the school first and thenâ&#x20AC;&#x201D;on passing the courseâ&#x20AC;&#x201D;the Judiciary has obvious advantages over a comparative review of academic records or backgrounds, or other forms of appointment that involve one or two branches of government and the occasional collaboration of other agencies. These advantages stem essentially from the fact that in this system, the candidates are first painstakingly selected and undergo training and instruction for the duties they are to perform, with the aid of technical criteria and following an objective and transparent procedure. The system attempts to do justice to the merits of the candidates, but also respects the best interests of the service by bearing in mind the requirements and qualities that the country needs in its judges and officials. At the same time, it avoids the pressures and influence often brought to bear on those responsible for administering the competitions or making the appointments. The system also grants a high level of independence to judges and court officials by removing the need for lobbying and briefings with the authorities who must choose successful candidates or make the appointments. It thus bases the appointments squarely on the outcome of the admission tests and the behavior and performance observed in the course of training and instruction, that is, on the individual merits and personal efforts of the appointees. TRAINING AND INSTRUCTION An institutionalized system of basic training and further instruction for professionals interested in joining the Judiciary calls for a separate center or school, or at least a postgraduate program at one of the universities. The establishment of such an institution either public or private is essential. Without such an institution to fulfill this role, newcomers will be constrained to rely on the knowledge they acquired at university and must learn to be judges on the job. This will force them to imitate the methods used by other magistrates and to rely on the practical know-how of their staffs, while allowing themselves on occasion to fall into the established routine by adopting the existing practices and style of the court. One can well imagine the fear and hesitation with which one of these posts would be approached by young and inexperienced professionals, worried about committing

conceived and drafted by judges and law professors. This proposed legislation seeks to eliminate the current system of appointing officials to the lower levels of the judiciary, replacing it with one in which candidates would be chosen by examinations and other means of testing. The bill in question was prepared by a commission composed of judges and professors from the Corporation de Promotion Universitaria. In this way, instead of setting the system in motion each time a new position is created or a vacancy occurs in the lowest two categories, an open competition would be held annually for those interested in pursuing a career in the judicial branch, subject to their concluding a six- to 12-month period of training and instruction in the school of jurisprudence. Students who pass these courses would then be appointed to permanent positions in the Judiciary according to rules laid down in regulations issued for this purpose (Articles 6 and 13 of the draft Act on the School of Jurisprudence of Chile).

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errors and omissions that might damage the administration of justice and harm litigants.12 There can be no doubt that such inexperience will be begin to take away from the promptness and effectiveness of judicial services, at least so long as new magistrates are in the apprenticeship stage. I feel that this method of appointment and assumption of duties, in which selection plays such a minor role and in which there is no advance preparation, relies too heavily on the theoretical knowledge dispensed by universities, leaving it to the initiative and interest of new appointees to prepare and train themselves, without even the benefit of a tutor or mentor. If we look at the customary systems used for teaching law in our universities, we will find that with minor differences they all employ the traditional method in which a professor imparts his knowledge and experience to a group of students, in lecture form and occasionally resorting to examples, while the students adopt a passive role. There are no methods, techniques or strategies that require their active or dominant participation. Under this methodology, students are basically called upon to be capable of reproducing, with emphasis on memorization, the principal rules of positive law.13 Owing more than anything else to the excellence of certain professors, and the interest of the students themselves, several of the latter manage to acquire a more or less thorough grounding in the theory and doctrine of some branches of law, along with an incipient ability to reason juridically. However, this alone does not equip or train them to perform or direct the various proceedings and formalities that take place in court daily. Since the university curriculum does not include such topics, graduates generally lack the basic administration and management skills needed to handle and make optimal use of the human and physical resources of the court system. Nor will they know how to approach the most delicate part of their dutiesâ&#x20AC;&#x201D;also not covered by the curriculumâ&#x20AC;&#x201D;which is to assume full charge of their appointed jurisdiction: to hear the suits and disputes brought before their court and to settle them through judicial reasoning expressed in a well-founded and compelling judgment. This situation arises because the main purpose of university curricula is to turn out lawyers, not judges, even though the assumption is that a lawyer is equipped to perform any function or activity for which such a legal qualification is required. Despite this, there are those who hold that judicial instruction should be dispensed by the universities by expanding the course content on the administration of justice and by teaching students how to perform judicial and even jurisdictional 12

In Chile, in order to be named to a judgeship in a municipality, which is the lowest rank among judges, the only requirements are that candidates be 25 years old, hold a law degree, and have practiced law for at least two years. Article 252 of the Organic Code establishing the Court System.

13 Professor Andres Ciineo M. argues that Chilean universities start from the premise that teaching law basically means teaching legislation, especially in its codified form, neglecting other sources of law such as judicial and administrative case law, judicial, notarial and administrative practice, and court rules and usage. He adds that to know law is to be able to reproduce the content of the main codified bodies of legislation. Suitability of law teaching at universities for the training of judges, Santiago, Chile: study published by C.P.U, 1990.

tasks. Those who hold this view see such instruction being delivered through a postgraduate course or an optional course in the existing curriculum structure. Under such an arrangement, the role of the school of jurisprudence, if there were one, would be exclusively to enhance the skills of judges and officials in active service.14 Other authors believe that the entire curriculum should be drawn up in the law faculties, as they consider it unsuitable for the training of lawyers, regardless of their professional role, including that of judges. Its unsuitability, they argue, stems not only from the lack of specific knowledge but from the lack of objectives underlying the curriculum—mostly cognitive in nature—combined with the dearth of objectives aimed at instilling judgment. As a result, lawyers educated in this way are unfamiliar with the skills and insights that are vital to decision-making. This situation is particularly serious in the case of judges. They also note that this education has few if any objectives, so that lawyers trained in this way are deprived of the essential skills they need in order to apply their knowledge and past decisions to specific situations.15 I consider these to be valid options that would in any case help to better equip lawyers and judges, not only in cognitive terms but also in areas inherent in their training, such as the ability to argue points of law, to interpret the law, to analyze and summarize legal problems, and to make informed and well-founded decisions. They would also assist in the practical training of students to handle substantive tasks. However, although there is no denying that lawyers must be taught to perform all kinds of functions and activities inherent in their profession, I feel that those of a judicial and, above all, jurisdictional nature are so special and so complex as to merit separate treatment by a specialized entity, in which, to avoid the ivory-tower syndrome, the lecturing and tutoring should be done by magistrates with experience and a background in teaching. There is unquestionably an area of teaching, instruction and training common to judges and lawyers alike. But once that stage is passed, judges need to be trained and instructed at a school of jurisprudence or specialized center in accordance with a different curriculum that also has different objectives, course content, activities and methods. I shall return to this subject when I discuss the school of jurisprudence as an institution.16 Furthermore, it must be pointed out that the notion that the judge's only function is to "apply" the law, in accordance with its literal wording, has been so thoroughly instilled by Latin American law faculties and so often and widely repeated by magistrates that it was accepted as dogma until recently.17

This view is stated by Professor Antonio Bascunan in a paper presented at a Seminar on the School of Jurisprudence organized by the C.P.U. in September 1992, in Santiago, Chile. 15 Position of Professor Andres Ciineo, M., op. cit. 16 See the section on the school of jurisprudence later in this chapter. 17 Professor Agustm Squella maintains that the idea that law-making rests with the Legislature (ordinary laws) and the Executive Branch (executive decrees, decrees) is deeply ingrained in Chile's legal culture, whereas the application of the law is a function of the Judiciary. Because of this thinking, he adds, there is within Chile's legal culture the explicit conviction that "judges do not make law, but merely apply invariably preexisting law to

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I believe that this view must also be revised, because limiting a judge's role to merely applying the law means curtailing all his creativity and depriving him of a prerogative inherent in his jurisdictional function: that of interpreting abstract legal rules to settle concrete cases.18 We know from experience that the provisions of laws are commonly open to different interpretations, each one of which leads to a different application and a different outcome. Faced with these options, a judge must have the discretion to choose the one that allows him to hand down the fairest solution, in keeping with general principles of law and equity. The interpretive side of the judge's labors cannot be reduced to a purely intellectual exercise subject to predetermined rules divorced from values and ethics. On the contrary, it must be noted that, despite protestations of exaggerated positivism, judges have on occasion devised novel solutions not to be found in the specific provisions of the lawâ&#x20AC;&#x201D;but that square nicely with general principles of law and equityâ&#x20AC;&#x201D;that have enabled them to satisfy their concern to do justice. A careful reading of the case law will readily confirm this point. For all of the reasons cited, I have concluded that it is essential to devise a uniform system of instruction and training structured around a center or school of jurisprudence for lawyers, or at least for law graduates wishing to enter the Judiciary. This center should be organized as an autonomous entity, independent of the universities and of any other public or private organization. Its general and specific objectives, course content, programs, activities and teaching methods should be geared to training and preparing the judges and court officials with what a country needs in order to have the best possible administration of justice that is timely, efficient, accessible to all, and responsive both to the legal culture of its society and to its dominant values. This system will need to provide preparation and training for such candidates in keeping with general guidelines and criteria embodied in a justice policy. Under this arrangement, it will not be the function of the school to establish the guidelines that will determine the future disposition of the administration of justice, nor the ideal profile of the magistrates whom it will help to train. Given the overriding importance of this task, I feel that it should rest with the government authorities or a representative body designated by them. The function of the school itself will be to serve as an effective and flexible vehicle for dispensing the training and instruction described, which it will be able to do in accordance with the criteria mentioned. It seems clear to me, moreover, that the school should have the exclusive prerogative to choose the methodology it considers best, to design the necessary

juridically relevant cases that society mandates them to hear and rule upon." However, he goes on to describe a practice at variance with the foregoing postulate, whereby the Supreme Court has in fact forged a body of law based on equity through its rulings on appeals. In his view, this practice springs from an implicit legal culture. Chile's Legal Culture, Santiago, Chile: published by C.P.U., 1988, p. 42. 18 Professor Jorge Correa Sutil contends that a judge's task can no longer be construed as merely applying the literal wording of the general law to particular cases. The customary decisions a judge is called upon to make compel him to devise, and to make, free decisions. The law represents only a frame inside which a judge inevitably has room to maneuver. Cuaderno de Andlisis Jurfdico, Santiago, Chile: (Law Review), No. 2, School of Law, Diego Portales University, p. 33.

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CONTINUING EDUCATION I see continuing education for judges and officials as complementary to the training they received at the school of jurisprudence; accordingly, it is intended for those already on the job and thus, closes the loop that began when they were selected. This role is not viewed as inseparably tied to the school—as is the case with the training and instruction of students—so that it could conceivably be assumed by other public or private organizations. The school will nonetheless retain a subsidiary role on the understanding that it will always remain responsible for curriculum design in keeping with the precise objectives and course content it establishes for interested students, whose adherence to which it will have to oversee and evaluate. Having said that, I hasten to note that schools of jurisprudence have traditionally been regarded—and at times this is their only purpose—as dispensers of courses, seminars and other continuing education activities for judges, officials, employees and others involved in the business of the Judiciary, in the belief that training needs are thereby taken care of.19 This situation may be due to the fact that continuing education is the least controversial function the school can offer, being readily acceptable to other agencies or authorities, even within the Judiciary itself. I fully appreciate this approach, but I take issue with it insofar as it considers the purpose of the school to be wholly accomplished simply by the training referred to, and because it squanders the other possibilities it can offer, to which I have already alluded.20 The verb perfeccionar is defined by the Royal Academy as "to put the finishing touches to a work, raising it to the highest possible degree of goodness or excellence."21 To narrow down this concept somewhat in the sphere of judicial training, I see it as the updating of one's knowledge of existing statutory requirements and the study of modern trends in legal doctrine and jurisprudence. It also involves needed time to reflect on the reasons behind new rulings and the objectives sought by legislators, treaty writers and higher court judges, so as to complement the training of judges and officials in the interest of improved performance of their duties. We know that positive or statutory law is frequently amended to adapt to changes taking place in society in such areas as individual rights, family affairs, and commercial, penal, tax and labor matters, and that it must also adjust to the general issues and needs that arise. Moreover, these legal amendments stem from or are caused by—or are later influenced by—the doctrine and case law of the higher courts. All of this must be studied, analyzed and internalized by the judges. Nonetheless, continuing education also means enhancing one's knowledge of some subjects and deepening one's understanding of others, which, due to their 19

The draft act on the Chilean School of Jurisprudence provides for the three basic tasks I have outlined: selection, training, and instruction, with the addition of continuing education for judges and officials in post. 20 See Chapters II and III above. 21 Diccionario de la Lengua Espanola de la Real Academia, Spain, 1984 ed.

courses and programs to meet the preagreed objectives, and of course to devise mechanisms for evaluating the conduct and performance of the students.

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complexity or specialized nature, cannot be dealt with in detail at university. Examples include criminal law, forensic medicine, banking legislation and computer science. To summarize, continuing education encompasses updating, reinforcement and deepening. Defined in these terms, in-service training is necessarily an ongoing or continuous process of renewal to which no judge or court official should deny himself access during his career. Moreover, I believe this in-service training should be compulsory, with rules on how much time each judge or official should devote to it annually, and at what intervals, or on the subjects which he should study during his career. Of course, these rules should not limit his right to participate in other activities of this kind on a voluntary basis.221 also believe that in those countries that have career paths within the Judiciary,23 in-service training should have a bearing on rating mechanisms and on those for the promotion of judges and officials. There is no doubt that in-service training is an important factor that should be taken into account, along with others, in evaluating the performance of those who participate in it. This will facilitate access to senior positions by those who demonstrate the most interest in taking part in this type of activity and who show they have derived the most benefit from it. The proposals outlined above entail, first, devising a system of leave and assignments that will give all legal personnel the opportunity to undergo in-service training, without its slowing the wheels of justice or impairing the quality of service, and, second, developing a suitable system for evaluating training activities that will somehow provide indicators of the degree of commitment and involvement of participants, and of the extent to which they have benefited. This function of the school of jurisprudence can easily be extended, either directly or through other organizations, to those employed by the office of the court clerk who assist or carry out delegated tasks of an administrative or judicial nature that clearly require detailed technical knowledge and therefore need to be strengthened and enhanced. Similarly, it is possible to offer in-service courses or seminars to other people involved in the administration of justice, such as experts, court police, and community organizations. With respect to in-service training activities, I suggest intensive courses of short duration, seminars and workshops, depending on the content or subject to be covered. To obtain better results, it is helpful for students to receive the materials selected for this purpose far in advance. I feel it would not be repetitive or redundant at this stage to deal with some of the topics already included in the program of studies of the school of jurisprudence, particularly those that can be covered in a seminar or workshop format. The emphasis here would be on exchanging personal experiences and reflecting, as a group, on the best way to carry out certain tasks for which judges and officers of the court are responsible.

Chile's proposed School of Jurisprudence provides for compulsory in-service training. The National College of Magistrates in France mandates four months of ongoing in-service training, at the rate of two weeks a year, during the first eight years of tenure. 23 Chile's draft Judicial Career Path envisages precisely such further instruction and inservice training activities as a factor in annual evaluations.

On the subject of methodology, preference should clearly go to strategies that are compatible with the education of adults who are presumed to be already skilled in legal reasoning. This will enable the professor or tutor to provide only essential information, leaving himself free to moderate and encourage the discussion and consideration of issues, without imposing or suggesting solutions of his own. In-service training could be offered by the law faculties of existing universities, by private institutes, or by other public or private agencies, with the school of jurisprudence, as I mentioned, retaining only a subsidiary role. I would limit the school to this role in order not to distract it from what I see as its primary function: the training and instruction of candidates for positions in the Judiciary. In addition, giving the school exclusive responsibility for this task would mean hiring a larger number of professors and more administrative staff, as well as providing more complex infrastructure, starting with a larger building to accommodate the increase in the number of students and activities. In any case, I reaffirm that it would be up to the school to set the terms and conditions for inviting other organizations to assist in its work, with the timing and topics selected to suit its interests, and on the understanding that if the invitation draws no response, the school will have to assume full responsibility on its own. This in-service training scheme has the advantage of enhancing the powers of the school of jurisprudence, without the disadvantages I mentioned if it were to assume full responsibility for the program. Particularly for countries like Chile, this appears to be a workable way to meet the challenge of offering the costly proposition of inservice training for judges or court officials who are spread throughout the length and breadth of the country.24 To arrange cooperation with universities, options would include the signing of agreements directly with other institutions; the accreditation of in-service training they already offer; and the creation of a fund that could be used to invite open bids in accordance with specified terms and conditions.25 Before any of these approaches is used, it would make sense to take into account, among other things, the reliability and prestige of the prospective institutions, the professional quality of their teaching staffs, the organization of the event and, of course, the activities proposed, the specific subject matter or content of their programs, the teaching methods used and their evaluation procedures. Among these different approaches, my preference would be to establish a fund and to invite public bids because it allows greater competition in a more transparent and objective setting that should also provide better choices. The different methods of in-service training I have described represent a different approach from the satellite learning used for this purpose in other countries, although the two systems can be used in tandem. Satellite learning does not require physical attendance but makes use of the most up-to-date methods and technology to transmit knowledge and experience and to motivate self-improvement at the

Though narrow from coast to mountain â&#x20AC;&#x201D;its natural bordersâ&#x20AC;&#x201D; Chile is four thousand kilometers long. 25 As provided in Articles 15 and 16 of the draft Act on the School of Jurisprudence of Chile.

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student's place of residence. It is effective for training purposes not only because it avoids the need for students to travel from their place of work to the school or study center, but also because it accommodates variations in the speed at which students study and in how much time they can devote to studying. In any case, in order for satellite training to be considered legitimate, students must be evaluated in person by specialized professors or examiners. This step will make it possible to prove that the students have benefited from the material and to underpin the credibility of any certificates awarded. I consider that this training arrangement can only supplement or complement what I have described earlier, since it will always be preferable to dispense training and instruction to students in person. Centralized courses offer the opportunities that arise to exchange knowledge and experience and to compare different positions or points of view, with all the enrichment that this brings to participants.26 It seems clear to me, moreover, that the school should be solely responsible for selecting the methodology it considers appropriate, designing the necessary courses and activities, and, of course, evaluating the performance of the students. SCHOOL OF JURISPRUDENCE Structural and Organizational Aspects The school of jurisprudence may be either public or private, may be attached to the Judiciary or to a university, could report to the Ministry of Justice or some other government body, and, finally, could take the form of an autonomous agency organized as a corporate entity. The exact arrangement will depend on whatever political decision each country teaches. My preference is for the last option, but only if the school falls within the public sector. This is because the essential nature of the school's mandate is to provide training for persons who, as holders of the judicial function, comprise one of the branches of government. I cannot see the school being placed within or directly under the Ministry of Justice or any other government agency. Structuring the school as an autonomous entity will enable it to function independently, without interference or undue outside influence. Nor can I envisage it in the private sector, or even as an institute or academic unit within an existing university, precisely, as I said, because of the essential nature of its function and because operating under the aegis of a university would involve a latent risk of excessive stress being placed on academics, at the expense of the goal of active and substantive student participation. As for its obvious and necessary links to the Judiciary, I feel it would be advisable to devise means of preventing the higher courts from unduly influencing its manage-

26 Professor A. Bascunan has posited a satellite school of jurisprudence to train and instruct judges and officials in post, on the theory that the universities have already equipped them to perform these functions. "A Satellite School of Jurisprudence" in A Proposal for Instruction, Education, In-service Training and Judicial Policy, Santiago, Chile: published by C.P.U., Volume III, 1992, p. 35.

ment and operation, decisions on student selection processes, curricula, and evaluation of student performance. In these areas I recommend that the school be given a high degree of autonomy vis-a-vis the Judiciary so as to permit it to be managed and to function in accordance with sound technical criteria.27 As to its structure and organization, I feel that the school should be placed under a governing board and should have an academic director and a carefully selected teaching staff made up of professors with experience as judges and court officials. It should also be provided with the minimum administrative infrastructure required and with sufficient funding and physical resources for operating purposes, which should be allocated annually under the National Budget Act to ensure its independence and autonomy. In countries like Chile that have no senior body to establish guidelines and criteria for the training and instruction of future judges and court officials,281 believe it highly desirable that the school's governing board include, in addition to representatives of the Judiciary, officials from the Executive Branch (perhaps the Minister of Justice), academics from the law faculties, and representatives of bar associations, public defenders' offices and legal assistance agencies or related organizations representing users of the system.29 The powers and duties of the board of governors, in addition to normal administrative and managerial functions, should include appointing the director, issuing the school regulations, formulating the training plan, devising a system for evaluating student performance, and determining the number of openings to be offered each year and how applicants will be selected. Some of the speakers at a recent seminar in Santiago expressed their apprehension or concern that the school might become excessively institutionalized and bureaucratic and manifest a rigidity due more than anything else to its status as a government body.30 While a public agency can admittedly become mired in bureaucracy and thus become inflexible in its operations, this can be avoided if the school is conceived as an autonomous institution with independent legal status. Moreover, if this potential pitfall is borne in mind, the necessary steps can be taken to ensure that the director is given sufficient powers to exercise flexible supervision of the teaching, administrative and financial aspects of the institution. But above all, a model like that proposed must include the necessary mechanisms for constant renewal in response to the shortfalls and needs of the judicial service. These needs should be investigated periodically by the school in order to revise its

27 Article 1 of the draft Act on the School of Jurisprudence of Chile provides that the latter shall carry out the essential duty of the State to ensure the training of members of the Judiciary. Article 2 adds that the school shall be organized as a corporate entity with its own capital and be subject to supervision by the Administrative Corporation of the Judiciary. 28 The Consejo Superior de la Magistratura proposed by the administration of President Aylwin was rejected by Chile's National Congress. 29 The draft Act on the School of Jurisprudence calls for a nine-member Board of Governors. 30 Seminar on the School of Jurisprudence, Santiago, 28-29 September 1992. Speakers: Manuel Guzman, Antonio Bascunan and Jorge Correa S.

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Objectives, Curriculum, Activities and Methodology The objectives of judicial training have already been discussed in the introduction to this paper. The general objectives can be summarized as: (i) to meet as fully as possible the demands of our citizens for a system of justice more in line with the principles and values considered inherent in the concept of justice, and a system that is speedier, more efficient and accessible to all; and (ii) to make the most of the system's potential and to provide a steady supply of replacements for judges and court officials to ensure continuous revitalization of the justice system. More specific teaching objectives include: • to provide a practical grounding in all of the formalities, proceedings and steps involved in the various legal processes and actions that come before the courts; • to perform such formalities and procedures, properly and effectively, independently or by delegation, through the acquisition and development of skills, methods and techniques; • to assign tasks to court officials and staff, and to instruct, guide and supervise them; • to manage physical resources efficiently; • to strengthen, update and deepen the understanding of positive law, its sources and modern trends in doctrine and case law; • to develop different aspects of juridical reasoning so that judges may critically analyze the arguments and petitions made by litigants, weigh the proofs and evidence produced, and make the appropriate judicial rulings; • to become skilled in recognizing and visualizing the ethical and value-based elements underlying the disputes and matters submitted to the court; • to develop the creative skills required to forge innovative solutions, with proper application of current legislation; and, • to encourage a sort of juridical self-awareness whereby a judge accepts and becomes aware of the importance of his role and the responsibility it entails, thereby fostering an attitude that enables him to maintain the necessary subjective and emotional distance from the cases he hears and decides. Given the wide range of possible topics or subjects to be included in the school's curriculum each year, it seems desirable that they should be put together by its academic director, with the help of the teaching staff, to be submitted for approval by the Board of Governors. The course content should naturally reflect, and endeavor to implement, the general and specific objectives outlined above. I also feel it essential that course content should be reassessed annually by the same persons and organizations that prepared it in order to decide whether or not it has achieved its purpose and whether it should be revised or amended. In terms of activities, I envisage very few courses, basically aimed at strengthening, updating and widening the candidates' knowledge of the law.

immediate objectives, the contents of its programs, planned activities, and the teaching methods it employs.

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On the other hand, I see the need for a wide range of seminars on, for example, management of resources; assignment of tasks, coaching and supervision; and the ethics and principles that should guide a judge's conduct. Similarly, I feel that, because of their participatory nature, a great many workshops should be held, while bearing in mind that they are intended for small groups. This appears to me to be the best means for treating such topics as the juridical reasoning that goes into rulings; the forms and probative value of evidence; rights of third parties and incidental or ancillary issues in judgments; and the imposition of penalties and sanctions, together with their purpose and effectiveness. However, the most important activity is clearly the personal practice that each candidate receives in conducting a myriad of lower court proceedingsâ&#x20AC;&#x201D;civil, criminal, labor, juvenile, etc.â&#x20AC;&#x201D;under the direction of supervisory judges who have been previously prepared at courses and seminars and with the help of guides to legal practice. It is vital that all students in the school become thoroughly familiar with the formalities, procedures and actions that are normally carried out in these courts, and that they learn to handle them personally. Among these formalities are, very briefly, the following: issuing summonses; arranging conciliations; participating in the examination of witnesses, defendants and prisoners; taking part in arraignment proceedings; overseeing confrontation of witnesses, inspection of evidence and replies to interrogatories; learning to draft letters, communications, certificates, liquidation orders and assessments; presiding over foreclosure sales and creditors' meetings; becoming familiar with the form, contents and purpose of the various notices and documents, liens and injunctions; the safe custody, classification and filing of dossiers and documents; receiving and disbursing payments and deposits; keeping accounts, inventories and files; and, finally, learning the form and contents of the various rulings to be handed down in the course of proceedings, including the wording of final judgments. Lastly, I feel the methodology employed by the school should be essentially a practical approach that emphasizes student participation. As I suggested earlier, the professor should be more concerned with orienting and guiding the students than with passing along his knowledge and experience. One interesting method would be to present actual or fictitious cases for analysis with student discussions moderated by the professor. In conducting seminars and workshops, every effort should be made to encourage active, thoughtful and interested participation by all students. It is particularly important that they be given the materials selected and prepared for this purpose far enough in advance. Finally, the school itself should prepare an evaluation system that incorporates suitable means for measuring the students' performance in light of the proposed objectives and the methodology employed. Furthermore, this evaluation, together with the aptitude and skills demonstrated by the students during the training course, should be instrumental in determining their entry into the justice administration system, on the basis of a point system that should be documented in special regulations.31 31

Articles 12 and 13 of the draft Act on the School of Jurisprudence of Chile.

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Under this heading I shall discuss —briefly, in view of the nature of this paper— other possible functions that a school of jurisprudence might undertake, which include research on strictly judicial topics and the science of law. A school of jurisprudence would appear to be the ideal forum for promoting this kind of research by encouraging judges, professors and analysts to become involved in the area of study and research, on a practical level, so that their work and experience could subsequently be compiled as an aid to course design. In particular I feel that the research work could more properly and thoroughly be carried out by an institute or agency attached to the Supreme Court of Justice or a magistrates' association, so as not to burden the school with tasks other than those already mentioned.32 In some instances, schools have been called upon to compile and publish commentaries on doctrine and jurisprudence, and to disseminate any research work they may have undertaken. I feel, however, that it is unwise to commission schools to perform such tasks lest they be diverted from their essential objectives and because there will always be profit-making entities, notably specialized reviews, to produce such publications both quickly and effectively. To close this section, I should like to draw attention to the still nascent efforts under way to bring Latin American schools of jurisprudence closer together at the regional level so that they can share their experience and perhaps standardize academic criteria. Following meetings of their respective Supreme Courts in 1989 and 1990, the countries of Central America have agreed to create a Central American Center for Judicial Studies and Training, to promote technical cooperation and assistance projects in the area of judicial studies and the training of court officials.33 CAREER PATH Given its nature, this chapter discusses judicial career paths only to the extent that they relate to systems for selecting, instruction and in-service training of judges and court officials. Appointments and Promotions The concept of "career path" presupposes a system of appointments and promotions governed by binding rules that apply equally to everyone, clearly establishing the 32 There is in Chile an Institute of Judicial Studies, created as an independent foundation by the National Association of Magistrates, which has carried out a number of activities in this field. 33 Professor Rogelio Perez Perdomo argues in favor of judicial training provided that sound planning goes into its goals and how they are to be achieved, what is to be taught and by whom, who are to assist in the learning process and how they are going to do it, and, finally, the impact it is hoped the program will have on the career path of judges, on the Judiciary, and on society at large. Cuadernos deAndlisis Juridico, No. 8, "Instruction and In-Service Training of Judges," Santiago, Chile: Diego Portales University Law School, 1989.

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conditions and requirements to be met by candidates. Furthermore, such a system needs to be transparent, which implies open competition based on past performance. But it also presupposes a hierarchy in which positions are organized by the nature and importance of their respective functions, so that candidates enter at the lower levels of the hierarchy and work their way up to more senior and demanding positions by virtue of not only seniority but also merit, experience, and more specialized knowledge. This upward progress through the hierarchy implies the idea of competition; an individual wishing to climb must be prepared to render service that is at once more highly skilled and more demanding. The idea of a career path also entails the notion of efficiency and good performance; it must do justice to the merits, skills and qualifications of incumbents but also must be responsive to what is good for the Judiciary itself. I believe I should warn of the danger of "stiffening of the joints" that a career path can introduce into a profession; incumbents who feel relatively secure in their positions and expectations, mainly on the basis of their seniority, may not feel motivated to improve themselves, to strive to perform better, or to seek out innovative or creative ideas with an eye to performing their functions better. To guard against this risk, the career path should include mechanisms that foster fair competition for promotions and that encourage incumbents to seek constant self-improvement and to come up with creative solutions in the interest of more efficient and expeditious service. A career path in the judiciary is, as mentioned, directly linked to the systems of appointment and promotion for judges and court officials. A summary comparison shows that each country has its own system reflecting its own traditions and national traits. In this area it is impossible to offer across-the-board solutions or tout the virtues of any particular model. On the other hand, it is possible to study whether set rules should be applied within these systemsâ&#x20AC;&#x201D;with any necessary adjustmentsâ&#x20AC;&#x201D;so as to ensure that the mechanisms for appointments and promotions are stable, mandatory, and transparent. The idea of holding well-publicized open competitions based on records of performance to date seems to be an acceptable, albeit suboptimal, solution. Moreover, it is essential, in order to preserve the independence of judges, to do everything possible to prevent pressure or influence from being applied by authorities from any branch of government, including the Judiciary, who have been involved in any way in the nomination or appointment of the judges or other court officials. Schools of jurisprudence provide a very good means of entering the profession; they meet all the requirements mentioned earlier. They provide for, as we have seen, rigorous selection and training of candidates for admission to the judiciary and lie beyond the reach of outside influence or interference.34 As such, they can replace competitions based on documentation alone for the admission of candidates to lower-ranking positions in the judiciary, with all the advantages already described.35 34 35

Luis Fernando Solano and Carmen Blanco, op. cit., p. 82. See Chapter II above.

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Any balanced, fair evaluation system must include a mechanism for terminating employees whose performance is unsatisfactory or whose conduct is incompatible with the nature of the service. At the same time, it needs to offer incentives and training opportunities for those who prove most competent or who show special aptitudes and skills, so as to facilitate their promotion and, at the same time, enhance the quality and efficiency of the operation. There should be provision for an objective evaluation not only of the actual performance of officials, based on their acts and omissions, but also of the aptitudes and skills they have displayed. A system like that proposed should encompass a broad spectrum of criteria covering different aspects of the specific function in question, bearing in mind its nature and purpose, as well as any behavior considered desirable. Special importance should be attached to general principles and values, such as good morals, honesty, integrity, responsibility, spirit of service, sense of organization and discipline, personal initiative, and creative input. In my country—and I believe the same thing has happened or is likely to happen in other countries—there has been heated debate as to whether or not judges should be rated. This debate centers around the fact that they are the holders of the jurisdictional function, a function normally enshrined in the constitution, and that a rating system might influence decision making and thereby undermine their impartiality. I am inclined to think that a rating system does indeed pose such a risk for judges, and it is therefore not advisable that it should be implemented and applied to them. This does not mean, however, that such a system could not be used for other officials involved in the administration of justice, particularly regular employees. I would advocate, however, an effective system for monitoring the various courts—which should be the responsibility of members of the higher courts of justice—so that appropriate measures could be taken to rectify any undesirable habits or behavior or to remedy any irregularities in the service, in response to input from the users of the system. In this respect, schools of jurisprudence provide factors that should be taken into consideration in evaluating judges—in the event that there is a need to evaluate them for the purpose of advancements and promotions. One of these is the interest they have displayed in assisting or participating in instructional and in-service training activities and in their performance in such areas or the benefit they have derived from them. Legislation or regulations will be needed to determine how such activities should be taken into account.

Evaluation and Supervision

The Judicial Career and Training

Rafael Addiego Bruno Former President of the Supreme Court of Justice of the Oriental Republic of Uruguay JUDICIAL TRAINING

The nobility and high standing of the judiciary in the world, and especially in countries like mine (Uruguay), where it enjoys full jurisdictional autonomy from the executive and legislative branches and is vested totally in the judicial branch (there is no ministry of justice, which would normally be part of the executive branch), necessarily requires a high standard for the training of judges and demands strict respect for the formal judicial career. In 1987, this profound conviction in the judicial and legal spheres of our country generated the shared idea of establishing a judicial center or school—similar to those in Europe, Japan and some countries in the Americas—to educate and train our future judges and to update the training of those we already have, by which I mean not only the judges, but also the members of the justice system under the Office of the Attorney General. This idea gained the support of the Supreme Court of Justice, the Faculty of Law in the University of the Republic, and the Ministry of Education and Culture. There was thus formed a Tripartite Commission consisting of those three entities, which prepared the first courses to be conducted, appointed the teachers, and worked out the general operational details. In April 1988 the planned courses were officially launched under the aegis of the Tripartite Commission, which consisted of six members, two from each participating entity. The Commission charts the lines of action each year and sets the objectives to be attained and the guidelines to be followed by the Directorate of the CEJU (Centro de Estudios Judiciales, or Center for Judicial Studies). Every judicial training program requires that a suitable, efficient model be designed for the practical conduct of the instruction and training, including support for those slated for positions on the bench. Once the model has been designed, an overall program must be fashioned, taking into account the different needs within the administration of justice, from those of professionals (judges, court clerks and defenders) to support personnel (clerical and administrative). All of the above must

Chapter 6

JUSTICE AND DEVELOPMENT

be accomplished without neglecting the needs of the present society and of the legal instruments to be employed (codes, laws). In Uruguay, at the outset of the training program—aimed at satisfying the needs generated by the approval of a new Procedural Code (for noncriminal matters) that replaced a largely written procedure with hearings—it became clear that the training would have to meet primarily the needs generated by the more than 100 new judgeships and numerous technical support posts resulting from a decision of the Supreme Court of Justice in the budget law of 1988. With the new Code in force (since November 20, 1989), the effectiveness of the training provided by the Judicial School was demonstrated as it turned out judges who, though inexperienced, were resolved to work efficiently. A new and promising era in the training of judges and staff began with the signing of an agreement with the UNDP and AID in 1990. This new era was marked by, among other things, the appointment of a Director and Subdirector of the CEJU, the new curriculum designs necessitated by application of the Procedural Code, and the conduct of workshops (of not more than 20 participants each) to provide refresher training to sitting judges, technical staff and administrative personnel throughout the country under the direction of training teams consisting of judges, teachers and professional. The benefits of the revamped training were seen immediately in the form of improved performance by all judicial personnel, expedited performance of procedures, and, in particular, a higher quality of decisions deriving from the promptness of the proceedings, to the gratification of attorneys and court personnel. Another benefit was improved relations between officials at different levels and greatly harmonized interpretation of new provisions. This in turn reduced the volume of complaints and charges (formerly frequent) and largely resolved the conflicts over functions within the administration of justice. It may be underscored that the training itself was enriched by the introduction of disciplines traditionally not included in professional instruction, but now regarded as essential to the skills and abilities of future judges: psychology, legal sociology, theories of interpretation, written and spoken language, legal evaluation, alternative means to the settlement of legal disputes, etc. This instruction complements the technical subjects fundamental to statutory law that are taught in universities, and basically constitutes a highly useful resource for the specialized work of judges in present-day society, whether they are novices or experienced. In addition to the workshops described above there are now scientific workshops, seminars, conferences, internships, case studies, and even instruction by video cassette and audiocassette for judges and government attorneys in both the capital and the interior, for nonbench technical staff, people seeking technical positions, highlevel administrative posts, etc., for a total of at least 500 participants a year. To summarize, the new oral procedure, the financial support of the UNDP and AID—and of the IDE for other purposes, new forms of instruction, on-site familiarization with judicial schools in the United States (from which the Directorate of the CEJU and two Supreme Courts justices benefitted) and Brazil and the study of new alternatives for the settlement of legal disputes, have been the salient features of these first five years of operation of the Center for Judicial Studies of Uruguay. The results

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have been, on the whole, highly positive and augur well for the work of the CEJU in the future. Special praise is owed to the teaching work done year after year by distinguished professors, former and sitting judges and law professionals. These instructors have given generously of their time and legal expertise to the work of the CEJU and have thereby raised it to a very prominent place among the centers of its kind in the world. THE JUDICIAL CAREER IN URUGUAY The National Constitution vests in the Supreme Court of Justice the sole power to appoint members of the Appeals Bench (with the consent of the Senate), all judges (at whatever level), public defenders, and all employees of the judicial branch [Art. 239(4,5,6 and 7)]. Given this fact, there is no interference by the executive branch in this matter and very little by the legislative. The members of the Supreme Court are themselves appointed by a two-thirds majority vote of a joint session of the two chambers of the General Assembly (Arts. 85(18) and 236 of the Constitution). They hold office for 10 years, but must step down on their seventieth birthday (Arts. 237 and 250). Except for justices of the peace—who hold office for four years and may be removed at any time in order to serve the pubic good—all judges in the country are irremovable so long as their behavior is acceptable, and absolutely independent in the exercise of their duties, though they may be subject to disciplinary sanctions handed down by the Supreme Court (Arts. 243,246,249 of the Const.; Arts. 84,109 and 112115 of Law N°15.750 (the Organic Law of the Judiciary). Admission to the judiciary usually occurs through the lowest level, which is that of justice of the peace in the interior. In order to become a justice of the peace in the interior, one must be a lawyer or special notary and a native citizen in good standing, or naturalized citizen for at least two years. In order to be appointed justice of the peace in the nation's capital, one must be a lawyer (Arts. 247 of the Const, and 82 and 83 ofLawN°15.750). Every member of the judiciary is entitled to promotion, which is governed by the roster of promotions and transfers drawn up by the Supreme Court (Arts. 95 and 96 of Law 15.750). Appointment and promotion of judges requires three assenting votes on the Supreme Court. Four votes are required only if the new post involves a loss of rank or remuneration (Arts. 97 and 99, Law 15.750). In principle, promotions are based on merits, training and seniority and are to the next highest rank. The Supreme Court reviews a judge's performance and behavior in the exercise of his function and in light of the favorable and unfavorable comments entered on his personal record (Art. 97, Law 15.750). Salary is directly tied to training, as the Supreme Court, in appointing a judge, gives the most weight to the candidate's training. If the candidate has satisfactorily completed the CEJU course, he is very likely to be appointed. However, this does not preclude the appointment of lawyer applicants who have an excellent university record but who have not attended the CEJU course.

THE JUDICIAL CAREER

JUSTICE AND DEVELOPMENT

The CEJU subjects applicants to the judiciary to a meticulous and detailed examination before the start of the training course. The examination, which enjoys the backing of psychologists, is designed to evaluate the aptitudes of the candidates, the values by which they are guided, and their legal and moral judgment, in order to determine whether they have a genuine vocation for the judiciary. If the candidate passes this entrance examination, he is admitted to the courses (the content and scope of which were discussed in the topic on training), which normally last for six months and are attended by no more than 30 people with degrees as lawyers or as special notaries (escribano publico). The Center for Judicial Studies not only trains future judges, but also future prosecutors (who are under the authority of the Ministry of Education and Culture but function autonomously) and court clerks. The experience gained by the CEJU in its five years of training has been highly positive. The dozens of judges who have graduated from it and are now employed in the country's judicial branch and government attorney's offices are living testimony to this experience. Since the new Procedural Code has come into effect, the first graduates have now climbed to high-ranking posts in the judiciary by means of successive promotions granted by the Supreme Court. Their competence and vocation have been enhanced —a testament to the virtues of the training system used—and they are experiencing further gains resulting from the technical independence and responsibility with which they function. The advances in legal training (which continue) combined with greater job security—assured by wise constitutional and legal provisions—make Uruguay's judicial future look promising.

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The Judicial Career and Training1

Luis Fernando Solano Carrera Magistrate of the Constitutional Branch of the Supreme Court of Justice and President of the Law School of Costa Rica

The topics of judicial training and judicial careers are often treated separately. In truth, each topic offers a number of possibilities for independent development, at least from a conceptual and operational perspective. I feel that it is a good idea to tie both themes together since the first leads to the second and the second cannot exist without the first. The decision of this seminar's organizers to treat both issues together evinces a clear perception of the problem that arises with these two topics. JUDICIAL TRAINING We know that judicial systems are fed from the product of law schools and that this product cannot satisfy the needs of judicial systems, since, as has been shown, university professional education follows an approach that is, among other things, generalist, individualist, one-dimensional and not suited to social reality. A distinguished Costa Rican professor who was concerned with this situation stated in the opening class of the law school in 1992 that: "Our more than one hundred-year-old academy is gravely cut off from real time, from the heartbeat of everyday life...." The same professor was renowned for other equally serious pronouncements—like the Faculty lives "cloistered within its walls, " "sleeping like JEsop 's hare "— and he championed a more "creative," "dynamic," and "realistic " teaching of the law. As we know, his remarks hold true of many higher education schools at different times. It is not our aim of course to pursue such a delicate subject. Nonetheless, it is precisely for this reason that despite the fact that attitudes are changing in what we might term the factory that turns out judges, prosecutors and defenders—even though

Further information on these two topics can be found in Prospects for Legal Training by L. Solano and C. Blanco, San Jose, Costa Rica: Taller de Mundo Grafico, 1992.

Chapter 7

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that is not the purpose for which it exists—the Judiciary must face up to the fact that its professional work force is not trained for the extremely delicate task of dispensing justice, or helping to ensure that it is dispensed, in a timely and high-quality manner. We said that justice must be timely, since justice delayed is justice denied. This is especially true for one or the other party to the proceedings—usually the weaker one— and whatever we can do to combat this disease that afflicts our justice systems will redound to the benefit of society. Predominantly written, formal proceedings that can drag on almost ad infinitum, in which the judge is virtually a spectator, must be replaced by a concept more in tune with current needs, where the exercise of the profession must cease to be a string of sophistries, inferences and subtleties, with traps at every turn, in which the honors go to the most astute, usually the one most adept at the art of legal wizardry—a system in which the judge is caught in the parties' crossfire, gasping at the display of procedural fireworks. In short, legal proceedings, like so many other elements of life in society, must bear the mantle of transparency and thereby become an instrument for justice rather than simply an instrument for the law whenever the latter does not serve the former. Beyond being the mere application of the law, justice must also be of good quality. However, we now embark on a narrow iter docendi, which consists of defining, at a minimum, who, by whom and for whom, and how this task of the new judge is to be undertaken if he is to step in and help remedy the present situation. We shall endeavor to offer some suggestions based on experience acquired in these matters, while cautioning that allowances must be made for the particular circumstances of each society and system, although the suggestions are in some measure supported by Costa Rica's experience. Judicial Training Is Specialized If we have argued that legal education at universities is at the outset generalist and individualist, then its end-product, the lawyer, cannot fail to possess those characteristics. The result is therefore the same whether he makes his career in the liberal exercise of the profession or enters the public administration as either a judge or a prosecutor, to cite the most common alternatives. Thus, the aim of a legal education should be to transcend that mindset by taking specific account of the needs of the judicial function. In this sense, training, as the unavoidable effort required for the judiciary, must have, as its starting point or a priori foundation, very clearly identified profiles of judicial functions—be they on the bench, in prosecution or in defense—so that the teaching strategy can be designed accordingly. In institutional terms, this implies a conscious effort, but also an effort that is based on prior and systematized knowledge of the actual workings of the judiciary (or the judicial function in general). Judicial training is also specialized in that it is directed not only at each sector of its employees but must also reflect their diversity. This diverse group includes legal professionals, support personnel—who perform tasks of considerable and at times overriding importance, professional personnel in other branches (for example, forensics if they are within the Judiciary), and even employees in the administrative part of the system, because they, as support or auxiliaries to the judiciary, must also be trained

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in order to avoid being out of step or dysfunctional. In all these cases, the special conditions and requirements of each sector and function must be taken into account. Consistent with this approach, moreover, it is essential that training incorporate practical elements as it proceeds. Possible options include analysis of fictitious or actual cases, review of jurisprudence, staged judicial proceedings (simulated arguments would be a good example), and even on-site training in a particular law judicial bureau or office. Within this range of teaching possibilities that emphasize the practical, students will not only be able to consolidate their knowledge of so-called substantive law (which is presumably their forte or on which the university is focusing its efforts), but will have first hand experience and be exposed to the powers conferred by law on a particular kind of judge; or to the particular skills that a function calls for; or to the technique of drafting a judgment (in the case of a judge) or a written petition or appeal (in the case of a prosecutor). Practical training of this sort is, as we stated, the weak point of lawyers upon leaving the faculty and is what must be emphasized in order to overcome this state of affairs. However, this is not to say that training will be guided by practical aspects alone. The practical experience will be supported by theoretical aspects as long as these also allow a specific topic or set of topics to be introduced. Nonetheless, the teaching techniques applied would be those that best enable know-how, attitudes, adroitness and skills to be built into the official's work. Lectures or round-tables cannot therefore by themselves make up the bulk of the training. Such arrangements would at most make sense if backed up by work in a group, in simulations of court proceedings, such as a hearing in a penal case or a conciliation proceeding with examination of witnesses in a civil case, to mention two examples. The ideal arrangement would be a balanced blend of methods that facilitate the objectives of the training. For reasons of natural dynamics, we understand that in the initial stages, lectures and round-tables will be prevalent, but little by little the teaching process itself will call for other exercises precisely to overcome the kind of scheme that is all too often offered in university settings. We believe that during training the student-official's "life experience" will help—or should help—to produce an effective interaction with the instructor, who will be a guide rather than a professor in the traditional mold. In judicial training, efforts must be made to innovate and introduce variety so as to meet the very special needs in this area, endeavoring—as has been noted—to prevent "the system" from packaging or reducing the training to formulas or designs that are, or, as we shall see later, ought to be, outmoded. In other words, the aim of training cannot be to go on doing more of the same; it is obvious that it must instead be a vehicle for moving the administration of justice to a higher plane. Judicial Training Is Continuous Training should be continuous and must involve a fit among the proposed objectives, the academic activities scheduled on specific topics, and the results achieved. For the official, this emphasis on a continuing process thus implies an assurance that his

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training will be given continuity, follow-up and evaluation. Regardless of whether the lectures, round-tables, seminars, simulations, or practice in actually pleading a case fit into this effort, the guiding principle must be to keep the focus on relating and integrating all activities. It is not realistic to plan for each activity to be fully self-contained. Each must have its own justification, but each must also link up with and blend with the next, so as to form a common thread throughout. This approach is a means of making proper use of the sometimes scarce resources available, in an effort to achieve a greater qualitative impact on the professional development of the recipients of the training. Follow-up This sub-component is singled out as a way of keeping the progress of teaching activities on track in terms of clearly and specifically defined objectives and can be achieved by creating a Study Plan—or Work Plan. Training cannot get underway without a diagnosis of the gaps in the officials' knowledge. This not only relates to those who are to participate in the training—as recipients and even as instructors— but also bears on the subjects to be included in the program of activities. Creating a study plan is by no means simple, since it forces prioritization, which means selecting what one will start with and how the program will continue to unfold, bearing in mind, as we said, that the activities must be linked by a guiding thread that will give them consistency and lead to achievement of the proposed objectives. It is impossible—and this must be stated categorically—for all needs to be met in a given time frame. And we are not talking just about short or medium term. Training is a continuous requirement in the judiciary, and, as such, must always be seen as a series of sequential goals to be achieved. This is true because, if the law is dynamic in the sense that it seeks to respond to the needs of society, judges (or any other judicial officials) must keep themselves abreast of the latest thinking of particular judicial institutes, and on recent domestic or foreign jurisprudence on major topics, the so-called classic issues, and even on those we could term emerging topics. It is for this reason that we sometimes speak, redundantly, of "continuing education." Evaluation This "continuing" dimension also imposes a basic prerequisite: evaluation. This evaluation must be integrated into the training process because a continuing activity must be subject to continual review and refinement in the light of justified changes or changes occurring in the general environment. On the one hand, evaluation will be provided with respect to the recipients of the training, since it is not—nor could it be—a question of the officials merely attending the courses, workshops or seminars; they will be required to be heavily involved, hence the need to evaluate them individually to measure the benefit they have derived from the instruction provided. It is obviously not a question of evaluation in the customary sense we have ascribed to it in teaching since there are alternative ways

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to perform such evaluations without having the students take formal examinations. One could design an evaluation system as an integral part of the actual teaching process, unobtrusive yet measurable by the professor, or an evaluation after the event, that is, determining whether, in their future decisions and performance, students incorporate the lessons and recommendations they were taught, or the determining reasons that prompt them to depart from them. There will be student evaluation methods that do not necessarily involve an examination in the conventional sense. However, examinations cannot be circumvented, especially if we consider how much effort the Judiciary puts into maintaining the training and if our goal in doing so is to improve the administration of justice. On the other hand, training programs and their impact on the administration of justice should be evaluated on an ongoing basis because we are dealing, as in all areas of society, with a dynamic process that calls for one strategy one moment and a different one the next. In this kind of evaluation system the opinion of the students themselves should be heard, but also that of other groups who support the training effort, such as, in the case of Costa Rica, the teaching committees. Accordingly, we would like to assert that evaluation should have what we call a participatory dimension, which tends to provide a better reflection of the outcome of the training and avoids desk audits. Elements outside the training entityâ&#x20AC;&#x201D;or more accurately outside the Judiciary properâ&#x20AC;&#x201D;should also figure in the evaluation. This outside influence is necessary to avoid the tendency toward self-preservation, a phenomenon deeply entrenched in our cultures and institutions. In this respect there should be an external evaluation so that persons who are more critical of the system, or if you like less attached to it, can express their opinion as to how well the training is being planned and executed. Finally, the evaluation should include the educational facility as such, that is, its organization, method of operation, and the technical and human resources at its disposal, so that we can ensure ourselves that it is the right vehicle for achieving the overall training goals. Simply put, mere enthusiasm, however important, is not enough to fulfill this important task. There is a need not only for a technical-scientific vision to develop a coherent program that will lead to the desired result, but also for the program to be thoroughly revised from time to time. Training Is Participatory In our view, training cannot be provided using what might be called vertical criteria, because it occurs too in the high judicial authorities (usually the Supreme Court) or the training entity itself (as Board of Directors). Any plan we may wish to implement must start from a diagnosis of the real needs perceived in the system at large. For this reason, nothing makes more sense than to listen to those at whom the training is targeted, who can give considerable thought to the problems they face in their daily practice. Officials are often very explicit about what presents them with difficulties or what they find novel. Using these opinions will help shape criteria for guiding the instruction. We would not exclude high court or appeal court judges from this process, even though it is true that their input will come from their own experience as members

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of the system, and, as such, not as administrators wishing to define the who, what and why of training. And, although this is a somewhat polemical issue, I also believe that training (any program entrusted to a specific entity) should be autonomous. Training Is Autonomous This autonomy means that the entity entrusted with training should be endowed with the necessary technical independence to design, implement, evaluate and follow up all teaching activity, notwithstanding the fact that where the Ministry of Justice has an input in this field, decisions are needed by the senior levels of the judiciary or government in order to get training started. The top levels of the judicial hierarchy will always have oversight powers, since such an entity must come under its aegis, but, for the health of the system, for its survival and for its vigorous development, the training entity must be vested with a measure of independence. While the top judiciary can and should have representatives on the entity's governing body (board of directors or however it may be called) to convey their own expectations and concerns, apart from the weight such expectations and concerns carry by reason of their source, it will be up to the entity itself to decide on the right policies and programs that should be adopted to meet the training objectives. In any event, we cannot imagine that there will be any contradiction or confrontation between the policies of the entity and those of the top judiciary. All the same, the less direct influence the latter has in the training entity, the better for all concerned. The top hierarchy will probably devote itself to its own specific tasksâ&#x20AC;&#x201D;which are important and which cannot be left unattended. Training, as a specialized endeavor, can, as we said, continually refine performance criteria that will over time lead to satisfactory outcomes that will meet the needs of all those involved in the judicial system, when viewed as a coherent whole. TRAINING AND THE LEGAL PROFESSION We turn now to the second topic, intimately linked to the first. We might well say to ourselves: fine, we have training, perhaps even quality training. But what is the point of investing vast resources if those on the receiving end do not have stable appointments, or, more precisely, have appointments subject to the emotional or subjective vagaries of the judicial hierarchy? Let us bear in mind that, when we provide training, to a judge for example, we have him outside his office for the length of the training during which time he or she is drawing his salary. What is more, by virtue of the course in question, he or she will be entitled to a certain salary premium. Moreover, while the judge is in training, a substitute must be appointed to carry out his duties, which also calls for a special salary supplement. If we multiply this example by hundreds or thousands of cases a year and extrapolate the result over several years, large amounts of money are involved. Money, as we know, is growing scarcer, since training is not always among the government's

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top priorities. To all this we need to add the costs of the administrative personnel who support the training function, of physical plant and its associated items, of the study materials handed out during instruction, of the professors hired from within or outside the judiciary to lecture, and so on. If then the cost of the training is high, it is not heretical to acknowledge that the judge we are training today may no longer be one in a year or two. We are not referring to resignation on his part but to removal, of the kind that may periodically be ordered in a given system. I recall that in 1991, on the occasion of a Law Schools Symposium I attended in Buenos Aires, I happened to hear fellow judges from Paraguay speak of the possibility that this very year there would be a complete turnover in the judiciary. I do not know whether it has actually happened or is still about to, but this situation occurs frequently in our subregion. Changes in government in turn bring about changes on Supreme Courts of Justice, which finally result in changes among judges at lower levels. In situations like the foregoing, but also in other less severe cases like that of Costa Rica in which judges are appointed for terms (of four years) at the end of which they may or may not be elected (re-elected) for a further term, we believe that the cost of investing in training may be wasted, to the detriment not of the public treasury but of the administration of justice itself, since it will not have benefited from the training effort. It is therefore important that we link training and the judicial profession. Judicial Profession By judicial profession we mean the whole range of legal instruments, organs and procedures for managing entry into and promotion within the judicial careerâ&#x20AC;&#x201D; preferably the judiciary, but possibly also including the offices of prosecutor and defenderâ&#x20AC;&#x201D;and the structuring of the various positions at their different levels or grades, from the lower to the upper. Now if justice is a public service of crucial importance to society, we are dutybound to provide it with the mechanisms whereby it can be dispensed efficiently and in a timely and high-quality manner. The most direct and important consequence of regulating entry into and promotion within the judicial profession is to grant the judge or other official concerned the stability of tenure (or virtual immovability), while at the same time ensuring that the system acquires and retains the best and most skilled practitioners. Training relates to the judicial profession on two levels and for two distinct purposes. Training as Preparation for Entering the Legal Profession One way to relate training to the profession generally has to do with the way in which one embarks on the law as a career. The training entity is assigned responsibility for designing and delivering the appropriate courses for each competitive examination,

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according to the subject matter involved, so that candidates can attend them and eventually be evaluated. The grade scored by candidates will serve as the main yardstick for the rating that each of them ultimately achieves, and, depending on this rating, they will be placed on a long list by the body that administers judicial careers (commonly a Judicial Career Board). This body will then prepare the short-lists to be submitted to the body that in turn gives new officials their permanent appointments. Under this arrangement, training (a misnomer since no training is provided, but rather a few courses of study are offered leading to an ad hoc test, i.e., the competitive examination) provides direct entry into a judicial career and constitutes its foremost source of approval, since it is essentially on the basis of this training that the decision is taken whether or not the applicant will be admitted to the position in question. Training as an Ongoing Career Component Along with this first way of relating training and career—which, as pointed out, becomes a recurrent activity in that competitive examinations have to be organized to fill vacancies, either in the judiciary proper or in other branches of the justice system—there is a second communication stream arising from the need to provide officials with ongoing training, to refresh their skills on the job—or prevent them from becoming out of date—so that they can discharge their duties appropriately. In that first way, already described, training ensures that only the most competent for the position available will be admitted to it. In the second, training ensures that career officials will be those who attend the courses, seminars, workshops, or other academic activities to which they are invited, whatever their title may be. It also ensures that the only ones who stay on as career professionals, with right of tenure, or who are entitled to rise through the ranks, are those who have participated satisfactorily in the training activities. This implies in career terms that training is a means to an end, in that those who (a) refuse it or (b) participate insufficiently or unsatisfactorily, lose the right to move ahead in the profession or may even be rated negatively in a system that must perforce be implemented and thereby find themselves exposed to a drop in rank. One frequently reads or hears that in the legal profession, training is a right. I see it rather as a duty. Officials who refuse training, or who are rated negatively during a given period, could even be downgraded on the grounds that they have too little training or identify very poorly with the function and institution to which they belong. This is not a view accepted without demur. However, since success in training courses brings recognition in terms of compensation and career "points," the opposite situation, that is, in which officials decline training or accept too little, would prevent them from competing for promotion in rank and could possibly bar them from entering the judiciary, at least if, in the former case, the applicable rules contain provisions to this effect. Situations such as those we have described would lead to low annual ratings, which could result in downgrading or in possible loss of office.

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There should be an entity responsible for administering the profession, stepping in when vacancies occur in the particular function, arranging competitive examinations, administering the tests or examinations and, based on the results and the candidates' certificates, drawing up short-lists for submission to the body that has to decide on appointments. This body, generally called a Judiciary Board or Career Board, should act with sufficient independence for it to meet its objectives of securing a competent cadre of officials. For this purpose, it will need to keep appropriate records of the career professionals and an updated version of its constituent scale of ranks, from the lower positions up to the highest ranking position in the profession. In the event of temporary vacancies or the need to fill a position on an interim basis, the Board should also propose an appointment based on the lists it keeps for such purposes. This should be so because it is a specialized body specifically charged with proposing the selection of the best and most qualified personnel for the judiciary. The Board will generally include representatives of the top judiciary (Magistrates or Court Justices), the specialized administrative sector (Personnel Department), the Law School (Magistrates' School or Study Center), and the judiciary itself. This composition at least assures adequate handling of all problems involved in the selection of qualified personnel. Noncareer Personnel The issue of the judicial profession always raises the question of who should be included. Conventional wisdom argues that there should be an exclusive preserve for the judiciary, but it should not be seen as heresy to think in terms of a career path for Public Prosecutors or Public Defenders, either with separate organizations or within the same system. Nonetheless, one thing is beyond question—at least in systems like Costa Rica's (which could be extended to the whole of Latin America)—that the Magistrates or Court Justices fall outside the career path since their appointments are governed by different parameters, are subject to input from in most cases political bodies (Legislative Assembly, Executive Branch, or President of the Republic), and are for relatively short terms that are not necessarily renewable. Preservice Training Although in our view legal training fulfills a paramount role in the way justice is administered and cannot be neglected without grave risk to society, we are definitely in favor of some education or training before joining the service, even if it involves small steps. There needs to be enough to enable the judiciary to measure, evaluate and select its officials from among only those who pass the previous stage. In other words, we reverse the adage: learning by doing. It is not that this does not hold true to some

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extent for any system, but one ought not to have to appoint an official in order to determine whether or not he will perform well, or whether or not there is any way to "salvage" him. It is preferable for those aspiring to enter the profession to first undergo a training program based on established teaching techniques, and for incumbents to be selected only from among their peers who have also passed the program. It would thus be the judiciary that designs this preadmission phase, in accordance with its needs and the kind of officials required, so that only those who have satisfactorily passed this stage are appointed to posts. The scarcity of resources in our justice administration systems will naturally not allow this program on a grand scale, as is found in developed countries, for example in Europe. Notwithstanding this fact, it should make it possible to introduce gradually new and better trained officials who could, over time, serve to strengthen the same ongoing training programs and thereby provide the infusion of fresh ideas that the judiciary needs. END NOTES In designing a judicial career path, a balance must be struck between those already within the judiciary, intent on pursuing their careers and climbing the ladder, and those outside struggling to enter. Some guarantees ought to be granted to those within the judiciary, for example by attaching weight to seniority in post, but without going to the extreme of making the profession inaccessible even when the formal requirements have been met by outside applicants. Nor, on the other hand, should the system be so wide open as to permit easy access to professionals who lack strong identification with the calling and the institution, which could have adverse consequences for the delicate functions of a judge. It should thus be neither a closed shop that carries the danger of infection from improper practices and that would preclude the gradual modernization of the judiciary, nor a suicidal open door that lets in a flood of professionals who know nothing of the basics of the judiciary and do not identify with it, which would lead to serious conflicts within the judiciary and possibly grave consequences outside it as a result of risky or ill-founded proceedings. I would submit that not only are judges, or judicial officials in general, part of a public service—which already implies that citizens have a special right to be served by them, but that it is a very special service, since—as the Argentine master Professor Bidart Campos never tires of repeating, and has also been echoed by outstanding authors, such as Professor Florentine Cappelletti—access to justice is man's first basic right, underpinning as it does all other fundamental rights. Viewed from this standpoint, legal training should pursue, and stimulate in the official, a critical view of the law and at the same time a pro homine vision. The overriding goal of judicial training, as the keystone of the system, is that admission and promotion should be open only to qualified persons, who should be assured of stability and reasonable conditions in which to perform their duties and who should be exposed to impairment of their employment, or to possible removal, only for just cause. It should guarantee, in short, that judges are subject to their knowledge and conscience in deciding the cases brought before them, while bearing in mind, as

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observed by Paul Li, an expert in the matter, that the quality of justice cannot be better than the quality of the judges. Therefore, there is urgency in initiating and encouraging training as a means of safeguarding and promoting the judicial branch (better judges; more independence; stability or, if desired, freedom from removal). There is also need to exchange regional experience in this area. Some are moving ahead, others are only just setting out, and yet others are only thinking about getting started. There is no need to invent anything; it only needs to be adapted to the particular situation or circumstances of the country concerned. I am sure that at least one country has already experienced any given problem, has tried out a formula that did not work, or stumbled over a particular obstacle, which can benefit the one just beginning or about to begin. This is of course just a wayâ&#x20AC;&#x201D;not to have the same done unto others, but at leastâ&#x20AC;&#x201D;to establish that everything has been attempted or carried out, that there is indeed nothing to be invented. The possibility of regional or subregional training systems must not be forgotten. If countries face similar problems in the administration of justice or have similar training needs, or have aspirations in this area, then it is worth trying systematically to compile a set of experiences and plan activities that will help to achieve the purposes of the countries involved. Reference is made to the region or subregion since it makes for a more attractive model, but any group of countries interested in carrying out a scheme of this kind could decide to do so. There are specific ways in which what I term regionalization can function perfectly: Training of Trainers To be frank, not every professor is able to perform satisfactorily as a judicial trainer. Training is needed to take maximum advantage of whatever experience exists in a given field or subject, in such a way as to meet the specific needs of the judiciary or the offices of public prosecutor or defender. Use of Appropriate Methodological Techniques This point is linked to the previous point because an effort must be made to overcome a very pronounced tendency in the legal profession to rely on conventional techniques of teaching law, like lectures or occasional round-tables, in the belief that this is enough for training purposes. As we have written in the booklet handed out with the Seminar materials, lectures or round-tables cannot be neglected or rejected, but they should be combined with other methods/or teaching the skills, aptitudes and attitudes of the function concerned. For example', although legal argument can be explained with the help of theory, nothing is as compelling as analyzing it with the aid of concrete cases from which the lessons the course is designed to get across can be drawn. Moreover, the use of audiovisual aids for training purposes should be encouraged and promoted. A picture is often worth a thousands words. Transparencies (overlays or filmstrips) are a tremendous help when trying to stress percentages or comparative data on a particular subject (fluctuations in detentions in response to changes in jurisprudence, arrests without convictions, etc.).

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In addition, videotapes would make it possible to review more complex situations and reach particular conclusions more easily and clearly. A case in point: to detect adroitness or skills, as well as errors or behavior ill befitting a judge, the best course would be to tape an actual trial or stage an ad hoc one so that the professor can stop the tape at a given moment, at his own initiative or that of a student, to allow a particular passage to be discussed and conclusions to be drawn for similar situations in the future. Training Not Only for the Professional Sector but for Other Parts of the Judiciary As Well It is important to think not only of the professionals but also of the support personnel, since in the administration of justice both groups work side by side and in practice form a team (a clerk, for example, is a judge's right-hand man and as such should therefore also receive training). We must remember in this connection that at other times training needs to bring different sectors or principals together because of the links between the two. Take the penal sector, for example. The judge often complains about the prosecutor, or vice versa, or about the defense, in which case nothing makes more sense than to get everyone together so that they can collectively air their respective misgivings or complaints under the guidance of an experienced professional moderator. In this sense, penal justice is seen as a whole, and each of the principals mentioned have their role. Decisions are taken among all players, without eliminating the differences that will always exist between them as a function of the role the system assigns to them. At all times, the judge may even need to get together with a medicallegal expert. Inter-Institutional Coordination The foregoing leads to consideration of a further requirementâ&#x20AC;&#x201D;cooperation among different sectors. For example, even though the Attorney General is not part of the Judiciary (under the arrangement in many of our countries), it is essential to arrange joint training. We can also refer to the situation that occurs with penitentiary systems, which usually come under the Executive and not the Judiciary: in these cases there is also a need for interaction, since what happens in one sector has repercussions in the other. For example, if the judges use provisional detention indiscriminately, that is, if it is resorted to at the start of a penal case, the penitentiary system quickly becomes overpopulated, with such natural consequences as overcrowding, lack of food and other inmate needs, possible increases in cohabitation inside the prison. This situation should be discussed by both sectors so that a mutual understanding of their respective roles can be reached. Another example might occur in a constitutional context. There is clearly a need to bring together judicial officials who come into contact most often with the constitutional jurisdiction so that the criteria used in it can be made known and adjustments made to the decisions being handed down at other levels. There is also a need to extend to officials in other branches or institutions of government (for example, migration or customs offices), in order to provide an understanding of the

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criteria that are applied to these matters by the constitutional jurisdiction. In this way it will be possible to avoid the proliferation of habeas corpus pleadings or writs of relief, while at the same time also avoiding possible liability on the part of those officials. Finally, such coordination can go beyond the judicial sector. A good example is contact with forestry or ecological legislation (with the Ministry of Natural Resources, or with national or international associations devoted to environmental protection). In such cases it is very important for the training to involve agencies or individuals that specialize in the field who can help to reverse standards that have become outdated, or who, from the vantage point of professions other than the law (experts in forestry or watershed management) can explain the consequences of specific actions that may appear harmless in the eyes of the legal profession. Investigation and Discussion of Needed Reforms in the Judicial System Training, as experience teaches us, always has an important byproduct that transcends the actual physical activity of training. Over the course of time, the institutional body discovers that there are a number of structural legal and cultural constraints in the system. The common constraints are that the Judiciary is out of step with the times or with the demands of society, (structural Codes of Procedure with completely outdated concepts, legal instruments, proliferation of remedies, time limits, position of the judge, legal) and procedural rituals that have sprung up around the attitude of the judges or litigants, formalities, or excessive absorption with technical detail, which are generally counterproductive in terms of what is expected of justice (cultural). From this perspective it would be up to the judicial organization to take the initiative, based on its own experience, by promoting reforms in any number of areas. We are all aware that the issue of the judicial profession in our countries is becoming more important for a number of reasons. Areas in need of reform include: the speed of proceedings, which is an issue of vital importance for individuals and is guaranteed by a constitutionalist doctrine which provides for access to free and timely justice; the judicial organization itself, beginning with the structure of the Courts, the powers vested in them, and possible realignment in the interests of streamlining their operation; the establishment of planning offices to control many aspects that are currently handled haphazardly or arise from purely cyclical situations; creation of a system of judicial statistics, scientifically managed, that will enable administrators in the justice sector to monitor the operation of the judicial offices closely and to take whatever corrective measures are required; and promotion of mechanisms for administering the courts (administrative management of the judicial offices, personnel management, distribution and internal oversight of the work, computerized applications, human relations, ethics on the job, etc.). The elements listed above are so sorely lacking in our systems because the legal professionals are not trained in these areas. Moreover, no initiatives have been taken so far to remedy this crucial lack, as we cannot afford the luxury in a judicial office of segregating its administration proper, in the hands of a specialized individual, from jurisdictional matters that are in the hands of the judge.

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In short, training will allow us to find ways to improve —even revolutionize— but they will be ways of our own devising. That is the responsibility that the sector has, to be proactive in promoting ideas or initiatives to address this delicate area and ensure that they are not put forward by people who, being on the outside, cannot gauge what impact their proposals will have because, given the specialized nature of the proposals, they are unaware of some of the fundamentals. Naturally, in all of this we are duty-bound to act in the most responsible manner possible, in the belief that justice is an instrument for strengthening democracy and that we should improve it not just for our own benefit but for that of society as a whole.

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The Judicial School and the Training of Judges

Fernando Hinestrosa Rector of the Universidad Externado de Colombia

On the subject of the training of judges, several lines of thought cross my mind. On one occasion Baldomiro Sanin Cano, a noted Colombian writer and literary critic, was asked by a friend much given to the natural life, "Tell me, Sanin, you do know how to breathe, don't you?" He answered ironically, "I've been breathing for more than 70 years now, and have convinced myself that I've learned how to do it." At the other extreme, Bertold Brecht, in his Three-Penny Opera, places poor Fewkombey, a soldier who, having lost a leg in the Boer War and squandered his meager government pension, could think of no better way to earn his living than to beg for alms in the streets of London. This he does right in front of the boss of the beggars' union, who, surprised and indignant, asks him whether he does not know that to beg in a civilized and highly organized world requires a license from his organization, which can be obtained only by passing a course. In short, I cannot stop thinking— and with this I'll cut short these trivial meanderings—how great the need is for training for the occupation of parent, which most fathers and mothers practice without having either learned or been taught. The administration of justice is serious, delicate and dignified but also risky work, demanding and in demand, the subject of much pondering and commentary in world literature—I cite at random Hesiod and Cervantes—and depicted in paintings and sculptures that have become cliches. It is no accident that since ancient times the jury has represented a democratic form of trial in which the respondent or defendant is judged by his peers, and from antiquity down to our modern arbitration, the parties, individuals as well as nations, have delegated this judgment to members of their communities who are prudent, experienced, just and wise, and as such worthy of their trust. With the growth of population, relationships and cases, the administration of justice has become not just more complex, but also more scattered and widely apportioned. But the same has happened to it as has happened to every other aspect of administration, both public and private: the bureaucracy is enormous and overwhelming. Everything suggests that neither government nor society was prepared for this increase in size and complexity, or took seriously the need for the service to be performed with dispatch, care and efficiency.

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From a judge we expect aptitude and comportment, high-quality performance, both in the professional aspects of the law and in its purely administrative organization. In short, character, independence and a strong ethical sense. It is obvious that, contrary to what many who like to prophesize and assert, deontology as a subject cannot fit into the curriculum of a professional program or specialization. On the other hand, the organization of an office, methods of work, the allocation of responsibilities, and team work can no longer be left to sort themselves out. Trial, error and desire—in short, improvisation—are gradually giving way to techniques, some rudimentary and others more complex, which, with the help of instruments, no less elementary and widely used for being complex, that simplify work, expedite the completion of a case, promise more correct results, and, in a word, foster greater efficiency. It is rightly asserted, and confirmed by introspection, that a judge, must possess in addition to a vast store of knowledge—both general and specialized of substantive and procedural law, sagacity, mental agility, expressiveness—especially in writing, quickness in his assessment of facts and the evidence, and a sense of equity. Thus there is no longer any doubt of the need for training in all those areas, or that training should not consist of an accumulation of mishaps and hard knocks. Different countries have schools for judges under different names—centers of judicial studies, judicial schools. Meanwhile there is the career of judge, with requirements and procedures for admission to it, for remaining in it and for promotion. In short, there is oversight of performance and a disciplinary system designed to safeguard the transparency of procedures, the basic rights of the official, and the public interest in proper and efficient service. In addition, there is a unanimous conviction that the three concerns must go hand in hand and be mutually complementary. On the training of judges—and, by extension, of the other people employed in the law (agents of the office of the public prosecutor, auxiliaries, litigants, and notaries)—there are a few points to be made. The State must efficiently provide for the administration of justice everywhere within its territory within the various branches and activities of the law. Its function is primarily to train, promote and provide refresher training for the officials it employs and to the private persons whose work complements the functions of those officials. There is a need felt everywhere, and in our continent especially, for a system of justice deserving of the trust of the citizenry. This trust must be earned with promptness, impartiality, knowledge, and attentive care. Judicial offices are service establishments that must be organized in accordance with both the rules of administration and the nature of their work. The head or director of such an office is a judge, who, is first and foremost an administrator. Unfortunately, no judge has ever been taught how an office is organized, how it works, or the nature of judicial work. And no one tells him about the basic needs that require his attention. The neophyte jurist starts out with no knowledge of these matters and often falls into the hands of subordinates who are skillful in tricks and stratagems, full of wiles and bad habits, ignorant of administrative techniques, quite uninterested in learning them, and opposed to adopting and using them. In most of our countries much of the inefficiency of the justice system—and hence one of the principal reasons for its discredit—is the result of bad organization, if not of a lack of organization of the offices themselves and of the work of their staff.

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Equally common is ignorance of the work of judges or, in other words, little or no awareness of the function of the position and equally little interest in knowing and being trained in it. Unfortunately, through no fault of his own, the official takes over the management of the judicial office, the conduct of the judicial process and the administration of justice, without ever having learned how to conduct a hearing— especially the most important of them, the conciliation hearing—or to carry out procedures or take evidence— especially witnesses' depositions, inspections or expert testimony. The lack of training is all the more serious as today's codes, intended to make justice more genuine and less the result of skill or of social and economic inequality, have given the judge powers of formal and material conduct of the process and compel him to participate diligently in the search for the truth. The same thing happens with regard to the method and technique of the judicial decision itself, whether arrived at by the individual judge or by a full bench. There is little use of logic, judicial reasoning, methodology or, if one prefers, of a common style. This is the case because no one has ever told the judge how to conceive, frame or write a decision. In general, judgments, and even writs, are unnecessarily long, crammed with formalistic considerations and arguments—as if the judge were trying to demonstrate the extent of his knowledge of procedural law, and often poorly organized. The net result is an opinion in which the conclusion is presented first and the evidence is examined and the rules are interpreted afterwards. This in turn invokes the impression of justification for a biased judgment. Our customary style is that of the academic dissertation, studded with citations of doctrine and jurisprudence and more concerned with the thesis than with the reasonableness and equity of the decision or even with stating it intelligibly. In short, the variety, vastness and specialized nature of the matters that come before a judge require of him, together with a solid and up-to-date professional training both in procedure and in the given branch of the law, information on, or at least some passing acquaintance with, the matter or purpose of the proceedings. Think only, by way of example, of the investigation of financial crimes, of computer fraud, of conspiracies to wrest control of firms, of establishing the responsibility of the auditors of companies, of matters in taxation, in transportation law, in business and economic law, or of family cases for the settlement of marital disputes or between parents over the custody and education of their children. In addition to the support of experts, the judge needs his own scientific, technical and practical knowledge of the case before him, so that he can decide on the basis of his own knowledge and not be swayed or supplanted by those experts. Although it is essential to provide the judge with monetary and social security, so as to dignify his life and status and render him immune from intimidation and influence, it is not enough to pay him in accordance with his standing rather than with his needs, or to provide his office with the appropriate appurtenances and trained personnel. He must also be offered, and required to submit to, training to become a judge, and continuing education to remain in the post, and even more to merit advancement. The office of judge is a profession, like that of the jurist, that requires just as much if not more intellectual curiosity, organization and discipline in one's work, interest in keeping current, in addition to the previously mentioned awareness of one's function, knowledge of one's business, and the ability to do it well.

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Complementary or additional training, the professional judicial training course with grading of performance and disciplinary regulations, and admission to the service and, more deservedly, to the career on the basis of a comparison of backgrounds and competitive examination. The government can and must require training for the judiciary and ongoing updating of the judge's professional knowledge. That is, it must provide the means and require the results. In Colombia the need for ongoing training and the response to it occurred within an overall effort to modernize and enhance the standing of the administration of justice that culminated in 1970 and that included a reorganization of the judicial sphere and the judicial career, new codes of procedure, a code of trade, a statute of the legal profession, a reorganization of law studies, and a statute of the notarial profession and public records. The Judicial School (Escuela Judicial) was established under the guidance of the Higher Council on the Administration of Justice to provide the education and training of the officials and employees of the judiciary and the Office of the Attorney General. The Higher Council of the Administration of Justice was charged with conducting courses for admission to the service and the career, for promotion and advancement in it, and for specialization in the different branches and activities of the law. The Council was conceived of as a guiding rather than as an executing agency with a view to avoiding repetitions and wasted energy and also to design and schedule those courses. It would have the support and collaboration of the universities, especially that of the faculties of law and of public and business administration. This was intended to make them more flexible and responsive and enable them to combine programs of different durations, purposes and content; to conduct them in different parts of the country either concurrently or successively; and to go so far as custom designing them. Unfortunately, the School did not open its doors until 17 years later. Much like the judicial career, which was ordered by the constitution in 1945 and organized in 1970 but which was actually implemented only a couple of years ago. The School has not only designed and scheduled the courses, but has also conducted them itself; its dealings with the universities consisting primarily of negotiating fellowships for judges and prosecutors in the refresher and specialty courses they offer. The universities, especially the law faculties, have a broad and crucial role to play in remedying the breakdowns of and shortcomings in the administration of justice. However, the basic and continuing education of judges has to be sponsored and even coordinated by the government, which itself must favor as well as require such training. The Latin American academic community has come together often and there have been landmark gatherings and joint projects. In the area of law and justice I would like to call to mind the Conferences of Faculties and Schools of Law convoked by the Union of Latin American Universities in Mexico City in 1959, in Lima in 1961, Santiago in 1963, Montevideo in 1965, Cordoba in 1974, and Bogota in 1976. Those meetings of teachers and deans greatly benefitted the quality of law studies. The declarations of principles and their implementation not only planted seeds of interest, but also made positive advances in the organization and conduct of judicial studies. Unfortunately, interest waned. I mention this with nostalgia, but also with faith in the ability and firmness of purpose of the Latin American jurist. I hope that governments, judicial councils, universities and judicial schools will work together through the

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exchange of proposals, experiences, teachers and fellowship recipients, and with— God willing—the support of international agencies. All of this can be accomplished with a purpose and sense of hemispheric and national affirmation, of preservation of real principles and values, and of assimilation of spiritual modernity and technological progress.

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THE JUSTICE SYSTEM IN LIGHT OF DEVELOPMENT

Part IV

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Justice in Times of Globalization: Challenges and Perspectives for Change in the Administration of Justice in Latin America

Rogelio Perez Perdomo* Scientific Director, International Institute for the Sociology of Law, Onati, Antigua Universidad, Spain

The political and economic changes now taking place throughout the world are so spectacular that we have become accustomed to the extraordinary. The fall of the Berlin Wall, the disintegration of the Soviet Union and unexpected wars have been very visible and have captured the attention of the media. The changes in Latin America have been less spectacular, perhaps because they have been marked by fewer events, but they are without a doubt just as profound. Wallerstein1 (1992) describes these changes as the death of an idea—an idea he calls development—which has been prevalent in the world since the beginning of the century. His analysis has the virtue of addressing the relationship between ideology and the real transformations taking place in the world. The idea of development is characterized by the fact that it is carried out at the national level and aims to achieve social and economic progress through control of trade flows with other countries. This normative image is today in crisis, and the revision affects not only the countries of Eastern Europe, Latin America, Asia and Africa, but also those of the first world. These changes are characterized by their global character, which to a large extent is due to the increasing interaction between societies and economies, societies that had hitherto conducted policies of national development and attempted to control trade flows with other countries. For this reason, we speak of globalization. The experts have generally focused their attention on economic policy or on

* Those interested in sending commentaries on this subject should direct their correspondence to the following address: Instituto Internacional de Sociologia del Derecho, Antigua Universidad, Apartado 28, 20560 Onati (Gipuzkoa), Spain. 1 Wallerstein, I. "The Concept of National Development, 1917-1989." In American Behavioral Scientist, 35, 1992.

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policies having a social and political impact, but it must be recalled that the changes described above have affected many aspects of societal life. The purpose of this working paper is to analyze how the phenomenon of globalization is affecting the administration of justice. In part one, we briefly describe how justice is currently administered by the State. In part two, we analyze how the changes we are witnessing affect the administration of justice and the more general problem of conflict resolution. Finally, we discuss a number of public policy problems resulting from changes in the judicial system. First, however, a few words on the author's perspective and limitations are first in order. The author of this paper has studied the Venezuelan judicial system in depth; his knowledge of the judicial systems of other Latin American countries is more indirect and superficial. It is likely that he may over-generalize from some of his conclusions concerning Venezuela, although the literature he refers to with regard to other countries tends to support his affirmations with field or theoretical studies. On the other hand, these affirmations relate to a more general analytical framework that includes experiences in Europe and the United States. THE STATE AS REGULATOR AND THE ADMINISTRATION OF JUSTICE Beginning in the 1930s, a series of economic and social policies were implemented in the countries of the North Atlantic and Latin America that have begun to be partially dismantled over the last decade. The basic idea was that the State could and should control economic cycles and could and should develop economic policies to promote growth or, as it was then known, development. According to this view, the State could and should also perform functions directly related to the well-being of its citizenry. Hence the expression Welfare State.2 There is no need here to explain that the State performs the function of directing and promoting the economy with a series of measures referred to genetically as "regulatory." These measures are well known: protection of national producers by means of tariffs, a variety of other mechanisms used to restrict imports (quotas, licensing procedures, tariff and non-tariff barriers), soft credit, national procurement policies and restrictions on foreign investment. The State may even perform economic or empresarial functions (state enterprises, autonomous institutions), exercising exclusive or monopolistic control over certain economic activities (basic industries, communications). The creation of private or public monopolies or oligopolies or a combination of the two, together with the State's assumption of responsibility for the welfare of its citizens, has resulted in increasing state intervention in the regulation of prices and of the quantity and quality of goods and services. Market mechanisms lose, or never gain, importance and the State assumes the regulatory role, attempting to reconcile all

The theory of the Welfare State and the economic policies on which it is based predates 1930, and many public policies from earlier centuries can be associated with the idea. What is significant is that the model gained acceptance in the 1930s. All this is well known and supported by a vast bibliography.

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interests. This phenomenon of public sector dominance has also had its impact in the field of law. Traditional private law, set forth in the civil and commercial codes and the result of prolonged conceptual development, has increasingly been supplanted by public (administrative) law, which regulates state activity and relations between the State and the citizen. All this is well known. What has not been sufficiently analyzed is the impact of such policies on the administration of justice and, more generally, on the resolution and settlement of conflicts. Government assumes the central role in settling conflicts and, given the nature of public policy, has a largely free hand in allocating the various privileges the State can provide. For example, milk producers may want a higher price for their product, a higher price that the industrial processors will attempt to pass on to the consumer. If the State wishes to control the price paid by the consumer, it may opt to offer animal feed or fertilizers at subsidized prices, which it can do if it controls the production or importation of fertilizers. It can also directly subsidize the cattle producer or industrial processor. It can threaten to eliminate barriers to powdered milk imports, which may be available at dumping prices from other countries with surpluses resulting from their own production incentive policies. Confronted with this panoply of rewards and penalties, the parties to a conflict may find the mediation of the government authority competent in the area concerned to be an extremely effective means of resolving their conflict. Such a situation has two major consequences. The prices to be set at any stage in the manufacture or processing of a product will be based on average productivity. An increase in productivity does not affect profit since the new prices will be set according to production costs. If costs go down prices will be reduced accordingly. On the other hand, if costs increase, some compensatory mechanism will apply, since the State cannot permit massive failure in an important sector of the economy. Production, therefore, tends to become inefficient. The other important consequence is corruption. It is commonly assumed that the State looks after the public or collective interest, but, in fact, government officials have their own individual or group interests. From the standpoint of the economic agent, persuading a regulatory official to adopt a favorable regulation may be much more profitable than any effort to increase productivity. Such persuasion may be accomplished by a variety of means: it may be indirect, through political contributions, giving the contributor access to and influence over policy decision-makers; or direct, by means of bribery. When it is the official who takes the initiative and demands payment (and when failure to comply may prove very costly to an economic agent or even put him out of business) the term used is "extortion." From a holistic perspective, the system can be seen to produce a hypertrophic public sector and a real transfer of wealth to a privileged group. This wealth rewards not economic skill but rather the effective use of informal networks. The society's productivity declines, leading to greater poverty and a less equitable distribution of wealth.3 3 Perez Perdomo, R. "Corruption y crisis politica". Presentation at the Seminar, Lessons of Venezuelan experience. Woodrow Wilson Center. Washington, 1992, and R. Perez Perdomo, "Corruption y ambiente de los negocios de Venezuela." In Perez Perdomo, R. y Capriles, R. (Comp.): Corruption y control. Una perspectiva comparada. Caracas, Venezuela: IESA, 1991.

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In such a society, the conflict between enterprises takes place below the surface. It is entirely invisible. The political sector, which has control over public administration, possesses immense power and informal networks are formed between political and economic agents. In such a societal context, characterized by submerged conflict or the illusion of harmony,4 the judiciary does not play an important role.5 The judiciary acts solely as a regulator of open conflict, and open conflict does not exist. What function, then, does the judiciary perform? In the area of civil property and commercial law, the courts become agents for regular or organized litigants (repeat players is the term used by Galanter)6, to collect debts with incontrovertible guarantees by executory means (banks, credit institutions, sellers of durable and semidurable goods on credit). The defendants tend to be onetime customers with no other business ties to the bank or institution. In interviews I had with bank attorneys, they always stressed this aspect and this use, a limited one, of the judiciary. When a bank has extensive business relations with its customer, or the customer has other property, the bank prefers to renegotiate the debt. Among the judges I interviewed, those most critical of their job said that they felt like collection agents for the repeat players. Prosecution in the criminal courts tends to be limited to perpetrators of crimes such as theft, assault, injury and homicide. Persons accused of such crimes are those perceived as delinquents or stigmatized as such. They tend to be male, young and lower class, which generally means of low income and educational level.7 This clearly defined group tends to be self-perpetuating, in the sense that its members are automatically regarded as suspects by the police and by means of mechanisms we will not explore here but which permit no real defense, the system thus converting them into convicts.8 Crimes committed by persons from other social classes—various forms of fraud and corruption (white collar crimes)—are rarely prosecuted, partly because of the difficulty of proving guilt but also because the police, the judges, and the public "Nairn, M. y Pinango, R. "El caso Venezuela: una ilusion de armonfa." In Nairn, M. and Pinango, R. (Dir. proj.): El caso Venezuela: Una ilusion de armonia. Caracas, Venezuela: IBS A (5th ed. 1989). 5 Bastos, A.W. "A grande empresa, o advogado e o Poder Judiciario." In Revista Brasileira de Mercado de Capitals, 1981. Conflitos socials e limites dio Poder Judiciario: subsidio metodologlco para a comprensdo do procedimiento Judiciario. Rio de Janeiro, Brazil: El Dorado; 1975. 6 Galanter, M. "Why the 'haves' come out ahead: speculations on the limits of legal change." Law and Society Review, 9, 1974. 7 Castillo Barrantes, E. y Gutierrez E. La administracion de lajusticia en Costa Rica. Descrlpclon y andlisis del sector. (Multigrafo. Manuel. San Jose, 1986) (Existe version impresa posterior). Castillo Barrantes, E. "El funcionamiento de la administracion de la justicia penal en Costa Rica". In Revistas de Cienclas Juridlcas. (San Jose) 42, 1980. 8 Perez Perdomo, R. "La justicia penal en la investigation socio-juridica de America Latina." In Clark, David (ed.). Comparative and Private International Law. Essays in Honor of John Henry Merryman on his Seventieth Birthday. Berlin, Germany: Dunker and Humbold, 1990. "Asistenciajurfdica y acceso a lajusticia en Venezuela." In Perez Perdomo, R. (coord.). Justicia y pobreza en Venezuela. Caracas, Venezuela: Monte Avila, 1987.

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in general do not regard such activities as truly criminal. Furthermore, the perpetrators of such crimes often wield considerable political influence and are in a position to bribe members of the judicial system.9 Generally speaking, therefore, it may be said that the functions of the judiciary tend to be of little social relevance and, for judicial functionaries, routine and intellectually stifling. As a result, judicial benches tend to be filled by a form of natural selection. Law graduates with the most lively or gifted intellects or the greatest imagination prefer alternative careers such as business law, litigation, teaching, government service or advisory service to administrative bodies that are in the process of transformation. Hence, the image of a judge is that of a person adverse to innovation both with regard to judicial reasoning as to the administration of the court itself. This is, of course, a generalization with many exceptions: some judges have been highly innovative or responsible for particularly salient judicial thought. Based on conversations with a number of such judges, however, these exceptions tend to confirm the rule: they are frequently criticized by their peers or the court hierarchy, hindered in their career advancement and, in some cases, choose to leave office. Given the irrelevance of the judiciary and the caliber of its members, investment in the system tends to be limited. One complaint is that the judicial branch has become the Cinderella of the public sector, which is true and perfectly logical. One manifestation of these characteristics of the system is its tendency to be archaic. Unlike public and private organizations in the service sectors, such as banking, transportation, communication, education and even most ministries, in the judicial sector the procedures for administration and control are generally manual and the office technology strikingly primitive. For many judicial systems, the last technological advance introduced was the typewriter, and in Venezuela the systems for record keeping (daily register and archive index) are kept by hand.10 These observations should be qualified by saying that despite its apparent relative irrelevance, the judicial function does entail the exercise of public power. For the person sentenced to prison or forfeiting his home or business, that exercise of power is evident. The pressure of corruption on judicial authorities, and in particular on judges, can be very great, since the future of the parties to a judicial proceeding lies in the hands of the court. The less that is understood about the operation of the system and the fewer technical resources available to attorneys advising or representing the parties, the greater the temptation for corruption and the easier it is to become a victim of extortion. Since some cases are politically sensitive, politicians prefer to have persons who enjoy their confidence or share their ideology occupying judicial posts. If the political system is based on patronage, the temptation to build client networks within the judiciary to serve political and individual economic interests is very strong.11

9 Perez Perdomo, R. 1992 "Corruption y justicia." To be published by Capitulo Criminologico. Instituto de Criminologia, LUZ, Maracaibo, Venezuela. 10 Among the modernization efforts I am familiar with, the most advanced is Colombia's, as documented in many working papers. To my knowledge, however, there is no general work on the subject. 11 Perez Perdomo, R. 1991 "En nombre de la Republica y por autoridad de la ley.

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As noted at the outset, the winds are changing and the Model of State as regulator is in crisis virtually throughout the world, and in Latin America in particular. The Christian-democrat, social-democrat and even socialist parties, which since their inception have tended to distrust market forces and have offered programs of change through state intervention, now appear to have misgivings about bureaucracy and believe that market mechanisms can resolve the problems after all. Governments formed by leaders of parties, such as the PRI in Mexico, the Peronists in Argentina, Accion Democratica in Venezuela and the Liberal Party in Colombia, have opted for policies of privatization and deregulation virtually unthinkable 15 years ago. In this working paper, we shall not enter into an analysis of such policies but rather consider their consequences on the administration of justice. It should first be noted, however, that such policies are being adopted for economic reasons: the increasing inefficiency of production in these countries, the causes of which have already been explained, the debt crisis and depleted monetary reserves brought on essentially by misguided state public investment policies. It is not mere happenstance that the worst debt crises occurred in Brazil, Mexico, Argentina and Venezuela, countries that had followed the most aggressive industrialization policies. The new policies not only involve deregulation and less intervention, but also openness to international competition and foreign investment. This increased integration into the international economic system and the communication flows permitted by modern technology have been referred to as globalization. The legal consequences of this phenomenon are very important as it intensifies economic, business and personal relationships beyond national frontiers. Gessner12 analyzes these as cross border legal relations. The new policies consist of the privatization of public enterprises, deregulation and greater emphasis on the market. The concept of deregulation must be explained: it consists not merely of fewer rules, but rather of rules to eliminate discretionary action by government officials and obstacles to private activity. In fact, in some sectors, such as the securities market, the number of rules and the degree of state oversight may increase. What is characteristic of the new policies is that the State abandons the role of dispensing privileges (preferential foreign exchange practices, import licenses) as incentives to particular forms of activity.13 Globalization also means a greater number of economic agents (foreign investors and suppliers, clients across borders, viri novi) with whom a relationship of confidence has never been established before.14 This makes contracts and contractual guarantees very important.

Problemas de legitimidad del Poder Judicial en Venezuela." Inedito. To be published by Politeia (Institute de Estudios Politicos), Caracas, Venezuela. . 1992 "Corruption y justicia." Inedito. To be published by Capitulo Criminologico. Instituto de Criminologia, LUZ, Maracaibo, Venezuela. 12 Gessner, V. 1992 "The Coordination of Cross-border Legal Interactions." University of Bremen, Law School, Germany. Mimeo. 13 Bobbio, N. "The Promotion of Action in the Modern State." In Hughes, Graham (ed.): Law, reason and justice, 1983. 14 In traditional Latin American society, business was conducted amongst a very few (for example, one or two suppliers of raw materials or semi-finished products) because regulation

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Globalization therefore involves a reprivatization of law, not necessarily in the sense of more commercial legislation but rather an increase in the importance and complexity of contracts, private regulation par excellence. This aspect is important to note since the new law of contracts has very little in common with that of the 19th century, in which Codes (Civil or Commercial) established standard obligations. The contracting parties simply identified themselves, specified the object covered by the contract and in some cases included separate provisions in addition to the standard text. Modern contracts attempt to provide for a greater number of eventualities, establishing reciprocal guarantees against very different kinds of nonfulfillment or for circumstances beyond the control of the parties which make the fulfillment of an obligation very onerous. They are formulated on a more case-by-case basis, in the style of U.S. law. They are such that lawyers must intervene from the outset in the planning of a business deal and must possess a thorough knowledge of the financial, production and marketing aspects involved. It is tremendously advantageous to be well versed in the nature of a client's business as well as the law.15 Bastos16 reports that most Brazilian business lawyers consider an apprenticeship in business to be more important than litigation experience. The reprivatization of law, along the lines indicated above, has brought about a boom in business law in both its forms: the law firm and in-house counsel. Today's legal services firm differs from earlier law firms not only in terms of the number of lawyers, but also in terms of their organization. This new organization is needed to guarantee continuity of service to the client, the specialization of their lawyers and the hierarchical relationships within the firm. Such law firms have grown very rapidly in Latin America. In Venezuela, for example, they began to develop in 1980.17 Today, there are not only more firms, but the largest firms have doubled or tripled in size. They are.still small, however, compared to their U.S. counterparts, which also enjoy a very large share of transnational legal work.18 On the other hand, in-house legal departments (legal counsel, legal offices or vice presidents of legal affairs) developed earlier

posed so many entry difficulties for other agents and severe restrictions on imports in order to protect national industry. This created tremendous dependency between businessmen who could only operate on the basis of relationships of reciprocal confidence or, better still, with a strategy of vertical integration of companies. In such a situation contracts do not have as much importance as do contracts between persons who know each other only slightly (for example, a foreigner conducting business outside the country). See Nairn, M. "Como crecen las empresas venezolanas: in Nairn, M., Las empresas venezolanas: su gerencia. Caracas, Venezuela: IESA, 1989. 15 The information on contracts and business lawyers comes from a research project that has not yet been completed by the IESA, Caracas, based in particular on in-depth interviews. Volkmar Gessner is conducting a comparative project whose initial results lead in the same direction (personal communication). 16 Bastos, A. W. "A grande empresa, o advogado e o Poder Judiciario." In Revista Brasileira de Mercado de Capitals, 1981. 17 Perez Perdomo, R. "Los abogados en Venezuela. Estudio de una elite intelectual y politica. 1780-1980." Caracas, Venezuela: Monte Avila, 1981. 18 Dezalay, I. "Marchands le droit: 1'expansion du modele 'americain' et la construction d'un ordre juridique transnational." Tesis para el Doctorado de Estado. Paris, France: Ecole des Hautes Etudes en Sciences Sociales, 1981.

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in Venezuela than in the United States. Some departments employ more than 100 lawyers, and in one of the companies studied, annual conventions are held not only so that the attorneys can better understand the corporation's structure and activities, but also so that the lawyers can get to know one another and discuss recent legislative developments that may affect the corporate group. Considering the recent transformation of business law (as depicted by Galanter and Pailey),19 it is natural for the larger legal departments to exercise greater control over matters referred to outside lawyers. Law firms do not play the only important role in determining the content of contracts. Export firms and binational and international trade firms make recommendations and suggest clauses that are frequently incorporated into contracts. Business law has been described in such detail because of its central importance in what may be called conflict control and modulation, which is particularly evident in the case of international business.20 Business planning and contract preparation are obviously very important preventive activities. If difficulties arise later in execution, negotiating capacity and a thorough understanding of the business may be helpful in renegotiations and efforts to ensure an outcome that is mutually beneficial or, at the very least, one that is not unduly costly to one of the parties. Finally, in the event of irreconcilable and open conflict, corporate lawyers advise on the course to be taken. A business conflict (for example, for the control of a company or the nonfulfillment of a contract) can evolve in a variety of ways, with or without litigation, and if the decision to litigate is made, can be handled by means of a wide variety of actions or defenses. In my preliminary study of business conflicts, I have found that business owners or managers become emotionally involved in the conflicts and that the function of corporate lawyers is to ensure rational decision making, using cost-benefit calculations based not only on the legal complexity of the various courses of action but also on their own experience with the way courts operate. Their role is to filter and rechannel the conflict.21 Given the above, the argument that there is little business litigation ergo there is little business conflict is clearly fallacious. Neither is conflict necessarily the result of litigation nor does litigation reflect the extent to which conflict exists. Conflict must be studied in terms of the environment and structure of economic activity and business. Litigation is the result of a filtering process organized by lawyers. Hence, the absence or infrequency of litigation may reflect the extreme apprehension with which lawyers approach the judiciary as a possible avenue of recourse or its very selective use for specific purposes that do not necessarily have to do with finding a solution to the conflict but rather serve, for example, as a means to weaken the opponent, prolong the status quo, etc. Litigation can therefore become a deepening of the conflict rather than the search for a solution to it. Generally speaking, however, the avoidance of litigation can reflect: a) low intensity conflict; b) the existence of numerous alternatives for control and resolution; 19

Galanter, M. and Pailey, T. Tournament of Lawyers: the Transformation of the Big Firms. Chicago, Illinois, United States: University of Chicago Press, 1991. 20 Gessner, V. 1992 "The Coordination of Cross-border Legal Interactions." University of Bremen, Law School, Germany. Mimeo. 21 Trubek, D. "The Handmaiden's Revenge. On Reading and Using the Newer Sociology of Civil Procedure." In Law and Contemporary Problems, 51, 1988.

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c) a lack of confidence in the judiciary. It can be argued that globalization of business leads to greater conflict. Corporate lawyers are the only ones in a position to control and regulate conflict, insofar as multiple or multidimensional relationships are not possible for persons with few ties.22 The pressure on corporate lawyers will be more intense and the lack of an efficient and reliable judiciary will have a greater effect on interested partiesâ&#x20AC;&#x201D;that is, on economic agents and corporate lawyers. In such a situation, the courses of action open to the parties vary. We shall leave aside here one course of action always open to economic agents, which is simply not to conduct business in that country (avoidance). Yet another possible solution is to include a clause in the contract specifying the application of a foreign law and the jurisdiction of foreign courts, thus avoiding the law and judicial system of that country. Another solution is to create new alternatives for control. The alternative dispute settlement movement (as it is known in the sociology of law) could prove particularly attractive, and in fact growth in the use of, or at least interest in, arbitration is already being observed. This interest will probably increase in the years ahead. In fact, the inclusion of an arbitration clause is now standard in many contracts. In the international arena, arbitration institutions have existed for decades and have developed a considerable body of case law (generally referred to as lex mercatoria), knowledge of which, unfortunately, is confined to limited circles. In many Latin American countries, arbitration boards have often been created on the initiative of chambers of commerce and other business associations. It may be said that justice has become privatized in two areas. One is that related to the inclusion of contractual provisions setting forth a multitude of rules covering areas formerly regulated by codes. This is probably due to the greater frequency of relations between businesses in different countries. Since the application of an unexpected national law may lead to surprises for one of the parties, they often prefer to take the initiative by stipulating what rules shall apply. In the common law tradition, this practice was customary for historical reasons and could also be ascribed to the common law influence of North American law firms. The second area in which justice is being privatized involves the increasing use of arbitration, but with important limitations. One is that recourse to arbitration is on a voluntary basis, both in the terms of the contract and in the relative facility with which a recalcitrant party may divert the case towards the public judiciary. In fact, judges are generally not aware of the enormous service arbitration can provide. For natural reasons they regard it as a rival 22

Studies on the anthropology of conflict and the sociology of law tend to agree that persons involved in multiple (or multidimensional) relationships avoid litigation and prefer direct negotiation and mediation, whereas among those with more specialized or distant relationships there may be greater recourse to litigation and the courts. See Nader, L. and Todd Jr., H. "Introduction: the disputing process." 1978. In Nader, L. and H. Todd, The Disputing Process. Law in Ten Societies, New York, U.S.: Columbia University Press, 1978; Galanter, M. "Adjudication, Litigation and Related Phenomena." in Law and the Social Sciences, 4, 1986. This work adds significant details. Engel, D., "The Oven Bird's Song: Insiders, Outsiders and Personal Injuries in an American Community." Law and Society Review, (18): 4,1984, on the other hand, gives much greater importance to distance (social or geographical) to explain litigation in the extra-contractual field, whereas in the contractual field distance does not appear to create limitations, at least not in the community surrounding Chicago, the community that was the object of the study.

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form of justice and have a propensity to permit changes of forum from the private to the public sector. Gessner23 has studied transnational business and argues that national law and the national judiciary are not structurally suited to this type of legal relationship, a fact to which he attributes the movement towards reprivatization analyzed above. If Gessner's argument is carried to its extreme, national law and judicial systems lose their meaning in a globalized world. We would argue, however, that privatization has certain limits, in that a conflict may be so intense as to cause the lawyers to involve the judicial system of one country, even when the contract excludes intervention by that jurisdiction. This would be true, for example, when cases are regarded as criminal or extra-contractual. Furthermore, globalization can lead to an increase in business, even domestic business, and by reducing the discretionary power of government officials, could increase the number of conflicts leading to litigation. In the United States, for example, an increase has been observed both in the number of cases handled by private or alternative justice and those handled by the judiciary.24 In Spain, Toharia,25who had observed a relative decline in litigation during the first 70 years of the century (1974), analyzes the veritable boom that has occurred since that year in his most recent work (1987). It is interesting to note that the United States and Spain have been feeling the effect of globalization since the seventies and that Galanter and Rogers26 expressly underscored this relationship in business conflicts. As we noted in part one, the judiciary is equipped to handle neither a greater volume of litigation nor the complexity of litigation that results from globalization. This is not due to insufficient legal knowledgeâ&#x20AC;&#x201D;since it is the lawyers who provide the legal argumentsâ&#x20AC;&#x201D;but rather to an insufficient understanding of complex business transactions. Under these conditions, intervention by the judiciary could result in purely formal decisions that are both unfair and do not contribute to useful case law. Furthermore, the ethics of judges will become an increasingly important consideration as litigation relates to ever greater amounts of money. Finally, judicial systems are generally in need of modernization in order to replace archaic forms of administration that hinder the ordered and efficient handling of the case load. What is uncertain is whether such serious flaws can truly be reformed and what expectations can be harbored in this regard. POLICY REFORM AND POLITICS Demands for change in the administration of justice persists in Latin American societies. They have come from persons who, for one reason or another, have felt 23

Gessner, V. 1992 "The Coordination of Cross-border Legal Interactions." University of Bremen, Law School, Germany. Mimeo. 24 Galanter, M. and Rogers J. "A Transformation of American Business Disputing: Some Preliminary Observations." Wisconsin, U.S.A.: Wisconsin Law School, Working paper, 1991. 25 Toharia, J. J. Pleitos tengas..! Introduction a la cultura legal espanola. Madrid, Spain: Siglo XXI, 1987. 26 Galanter, M. and Rogers J. "A Transformation of American Business Disputing Some Preliminary Observations." Wisconsin, U.S.A.: Wisconsin Law School, Working paper, 1991.

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stigmatized or affected by the functioning of justice, or from persons, such as academicians, acting as public advocates or concerned as jurists by the discrepancy between the official image of their profession and what takes place in reality. What is particularly new is that the economic and more modernizing elite has now begun to call for reform as well, as they feel themselves increasingly affected. In Colombia, the reform movement began with joint action by the Ser Research Institute and the Chamber of Commerce of Bogota. In Venezuela, business lawyers initiated a reform movement via the Caracas Bar Association, and the National Council for Investment Promotion established a Committee to push for reform that, not coincidentally, is chaired by the Chairman of the Caracas Bar Association. We thus have renewed cause for change or reform of the judiciary, and the most noteworthy aspect is the complexity of what usually goes by that name. The reader who has reached this point might think that the relevant part of the judiciary consists of the commercial and civil property courts, but this interpretation is too restrictive because business conflict is not simply civil or commercial. On the contrary, the parties and their lawyers have a wide field in which to implement their strategy, and the conflict may shift to criminal or administrative terrain, to use only two examples. This is not mere speculation about the future; today, each group of criminal lawyers in virtually all countries contain a number of lawyers specialized in business law, and corporate law firms include specialists in criminal law. The judicial system must therefore be conceived as a whole, from the standpoint of supply as well as demand. A new judicial system cannot be created from whole cloth by bringing judges from another planet, who have no connections with the system and are prepared to rule on the basis of whatever values and principles the reformists might stipulate. Moreover, the trend today is one of interdependence between the judicial system and what has come to be known as the justice sector, which includes such agencies of importance to the functioning of justice as the government attorney's office and the judiciary police. This being said, it is clear that any reform policy must begin somewhere, and the decision as to where it will begin is of crucial importance for the success of the reform. Such a decision must be taken strategically and not solely on the basis of a particular interest subjectively attributed to some area within the judicial system. It is also probable that no reform process can begin with a single aspect or segment. The first point to bear in mind is that the reform must be carried out with the judges now in office. Massive purges of the judicial branch would be pointless if there is not a sufficient number of adequately trained individuals able to assimilate the new guidelines for the conduct for judges. It is, of course, not likely that this group exists. And even if it did exist, purges are self-defeating since one of the aims of reform should be to increase the stability and independence of judges. Purges inject an element of instability and greater dependence vis-a-vis the persons controlling the purge mechanism. Furthermore, while judges, as a group, are not the most likely agents of change, they, like any human group, include individuals whoâ&#x20AC;&#x201D;despite built-in incentives to the contraryâ&#x20AC;&#x201D;are highly innovative in substantive as well as organizational terms. One of the results of the preliminary study initiated in Venezuela was the discovery of very great differences in productivity and organization among courts of the same jurisdiction. Hence, a good strategy is to begin the changes among those judges who are receptive to them and prepared to carry them out, perhaps due to their positive

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experience. The strategy need not entail generalized change throughout the system, but rather change in determined units, carefully selected and evaluated, and then extended to others. The micro-changes, in the area of court administration, are probably just as important, if not more so, than the systemwide macro-changes. This strategy is based on the need for a support and evaluation agency, which need not necessarily be a part of the judicial system, but which must enjoy the support of its highest authority. The second element has to do with the bad seeds: judges who are corrupt, negligent or ignorant and who set a bad example for the entire system. It is they who make it tempting to purge the system. However, it must be recalled that these judges are in and have advanced within the judicial ranks because designation, review and promotion agencies have permitted them to do so. If the existing rules and mechanisms had been applied systematically to the selection, evaluation and discipline of judges, most of these individuals would no longer be judges. Consequently, this purge should take place within the review and disciplinary bodies, accompanied by a revision of applicable rules and mechanisms. This is nothing more than the application of principles that are valid for any organization. It should be noted that a reform conceived in these terms may appear slow and even conservative. In the study of organizational change it is well known that there are no magic wands. There are no changes by decree. The existence and speed of change will depend on the people who carry it out: their capacity, will and dedication, and the means available to them. This is frequently referred to as political will and technical capacity. Whether the political will exists to effect real change in the judicial system is an open question. Generally speaking, that will may be said to have existed insofar as economic reforms are concerned but has been easier to put into effect when the decisions have been taken by small groups of individuals committed to an idea and when the changes were relatively easy to execute.27 Judicial reform probably does not require extensive legislative change and, in any case, should not be made dependent on such change. It probably requires substantial technical support and a will that is maintained over time. The reference to economic reform is pertinent for another reason. In this paper, the point of departure was economic reform in the context of world change and how it affects the legal system. We analyze how most of the judicial systems in the world today can make such reform difficult. Even though partial privatization of the judicial function is desirable, referral to the public judicial system will be indispensable, and successful judicial reform will surely contribute to the countries' integration into the world system more successfully or under less unfavorable conditions. In developing this idea we came to the conclusion that it is the entire judicial system that must be reformed and not only those courts with competence for business litigation. As a conclusion, therefore, it should be underscored that judicial reform is not only important for economic reform but also goes well beyond it. The changes we have identified with the expression "globalization" extend far

Naim, M. 1991 "The Launching of Radical Policy Changes. The Venezuelan Experience." World Bank. Washington, D.C., United States. Mimeo.

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beyond the economic sphere. They relate to a much more universal world, where diverse nationalism or regionalism are accepted but where the goal is freer, wealthier and, over the medium and long term, more just societies. Within this context, the idea of development as progress in the satisfaction of human needs is still valid, but now this aim must be pursued by a State more respectful of human freedoms and less intrusive in the economy. For such societies to exist, economic reform is not sufficient; what is required is much more comprehensive change, including modernization of the judicial system. Judicial reform is justified, not only because it will help ensure successful economic reform—after all, economic agents have alternatives that can partially compensate for the absence of a reasonably efficient and reliable judicial system—but also because a better judicial system can directly contribute to making society freer and more just. SOCIAL NEEDS AND JUSTICE I would like to comment very briefly on a few points that, while controversial, are in my view fundamental to any discussion on the subject. • It is not true that low-income individuals have less need for legal services than those with higher incomes. Both make contracts, both may be the victims of injury or breach of contract, both may receive inheritances and leave assets to their heirs upon their demise, and so on. In the course of my study on justice and poverty, I interviewed older people with low incomes using a technique known as the semistructured in-depth interview. One interviewee was Carmen B., who was born in 1915, married at 17, and worked successively as a domestic servant, a textile worker, a chocolate factory worker, and a hotel waitress. At the time of the interview she was receiving a retirement pension from the social security authority. She had never retained a lawyer or availed herself of a legal aid service and had only realized relatively late in life that she had rights as a worker. As a domestic worker, for example, she had fled the house where she was working rather than tell her employer that she wished to take another, better-paid position, thus forfeiting length-of-service and vacation pay. A review of her life experiences by a legal expert shows that on several occasions she would have benefited, at least financially, from receiving assistance or being represented by someone with a knowledge of the law. • Individuals with scant resources do encounter genuine difficulties in gaining access to the legal system to claim their rights or for legal defense, as in penal cases. These difficulties have to do with the expense involved (lawyers' fees, legal or extralegal court costs) as well as social and cultural barriers. Language, dress and the attitudes of legal personnel are also real obstacles. This applies to others besides the many prisoners I have interviewed. I would cite just two examples. In the Dominican Republic I spoke with a young man who had just received a suspended sentence for simple larceny. I asked him what decision the judge had just announced, and he replied that he had not understood it. Naturally he did not dare ask to have it explained. In Caracas, one of my assistants interviewed managers of downtown stores that sell semidurable goods (e.g., refrigerators, televisions) on credit, mainly

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to low-income consumers. They explained their preference for this clientele by saying that lawyers, doctors and teachers complained too much and were not as intimidated by threats of legal action. â&#x20AC;˘ Relatively few conflicts between either low-income or higher-income individuals, including major companies, lead to litigation within the legal system. Perhaps this is a desirable state of affairs, since a litigious society may not be a good place to live for anyone other than lawyers. I have done a careful study of where low-income individuals take their conflicts in Venezuela, and I was able to analyze several institutions with one predominant approach: mediation. For instance, the Legal Aid Section of the Caracas Municipality functioned as a mediation center for conflicts over housing in the neighborhoods. I found a quick, low-cost and participatory way of settling conflicts.28 Labor boards and offices at municipal and regional levels of governmentalso functioned as mediation centers.29 My criticism is not that these institutions exist and take on many of the matters that should theoretically be settled in the municipal courts. I do however criticize the lack of knowledge of this process among law schools and within the judiciary, not to mention the legislature and the executive branch. Only on the basis of a careful study will it be possible to determine what works well and what does not, in order to provide support and corrective action. I note with great concern the intent to introduce legislation in this area (e.g., current plans in Venezuela to introduce justices of the peace) without a knowledge of the field. Perhaps the sociology of law is worth something after all, and we who practice it frequently are certainly willing to help.

Perez Perdomo, R. and Nikken, P. Derecho y propiedad de la vivienda en los barrios de Caracas. Mexico: Fondo de Cultura Economica, 1971 and Heredia, M. and Lugo, Y. "El caso de las mujeres trabajadoras". In Perez Perdomo, R. Justicia y pobreza en Venezuela. Caracas, Venezuela: Monte Avila, 1987. 29 Perez Perdomo, R. "Asistencia juridica y acceso a la Justicia en Venezuela." In Perez Perdomo, R. (coord.). Justicia y pobreza en Venezuela. Monte Avila. Caracas, Venezuela: Monte Avila, 1987.

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Justice in the Face of a New Trend in Development

Hector Alegria Pro/essor, University of Buenos Aires

PRELIMINARY REMARKS This paper is based on the work of Dr. Rogelio Perez Perdomo, "Justice in a period of globalization. Demands and prospects for change in the administration of justice in Latin America." The first thought arising from the reading of that work is one of encountering a first-rate document. Its outstanding virtue is its precise analysis of basic subjects related to the debate. This analysis makes it difficult to add any substantial topic or solution while, at the same time, each sentence is full of suggestions and opportunities that allow for broad comments. My tribute to the author for this significant achievement. Given the nature of this commentary, I will consider some specific points that, while not following a strict expository order, permit us to reach conclusions. For this purpose, we will first take up some general issues, then substantive topics, and finally consider justice as a service. GENERAL ISSUES We intend to offer some thoughts, many of which will serve simply as hints of matters that we consider important. Growth, Democracy, and Justice Even when it seems obvious, it is appropriate to recall the ideological-functional link that exists among these three concepts. The restoration of democracy in most Latin American and Caribbean countries allows us to focus on the overall nature of development that not only includes economic aspects but also involves social,

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political, and cultural life. Thus, development without democracy seems partial or incomplete, if not merely an imposition. Clearly both aspire to justice without which either loses the ultimate ingredient in man's realization. Of course, we use the word justice in a dual sense: as the virtue of justiceâ&#x20AC;&#x201D;the goal of political, social, and individual equityâ&#x20AC;&#x201D;and also as a common means of achieving that equity, such as judicial authority. Development and Legal Certainty This work will inform the reader that we do not conceptualize legal certainty as an appeal to rigidly guaranteed formulations or assume a legal rigidity that is to be alien to the acceleration of history.' Taking the last phrase of the work of Perez Perdomo, I wish to emphasize the functional connection between the two concepts. Back in 1969, an eminent Argentine professor of law and of economics, Dr. Julio H.G. Olivera, upon joining the faculty of law, chose to discuss the topic of "Economic Growth and Legal Certainty."21 will repeat some sentences of the professor's since they are both relevant and profound and will clarify this discussion. He stated, among other things, "It should be noted, however, that the increase of available resources and the progress of technological knowledge only advance the frontier of production. By themselves they do not increase production nor do they assure that an increase, should it occur, will meet its needs. Growth factors, as they are usually called, only open up 'opportunities' for real growth. They offer the possibility for growth but not, by themselves, its reality... For opportunities for growth to be transformed into real growth, they must be able to influence the behavior of economic actors and therefore, must be known to them... The fact that predictions are uncertain permanently reduces the adjustment of the economic system to the possibilities of growth. In the economy, it is uncertainty, rather than error, that produces more lasting effects... The capacity to respond to the economic system is thus inversely related to the level of uncertainty that exists in the system... the increase in real output will be smaller as the prevailing uncertainty is greater." He adds that the investment that has the greatest effect on growth is that in durable goods. Therefore, if uncertainty reduces the system's capacity to respond, it will do so even more in the case of long-term investments. Speaking of factors in uncertainty, he emphasizes that "...in other cases, it is obvious uncertainty caused by elements of legal uncertainty can greatly surpass the other elements of certainty and relegate them to secondary status." In listing the "requirements of legal certainty," he highlights, in the first place, physical safety of persons and property; second, regularity and effectiveness of mechanisms for applying the law; third, "clarity and coherence of the organized legal 1

Saravia, Jose Manuel. "El derecho ante la aceleracion de la historia," (Law and the acceleration of history). In Anales de la Academia Nacional de Derecho y Ciencias Sociales, ano V, niimero 5. Buenos Aires, Argentina, 1960. 2 Olivera, Julio H.G. "Crecimiento economico y seguridad juridica" (Economic Growth and Legal Certainty). In Anales de laAcademia Nacional de Derechoy Ciencias Sociales, anos XI y XII, segunda epoca, niimero 8, 1969, pp. 23ff.

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system with respect to higher principles of justice"; and fourth, "stability of the legal order." He ends with a forceful statement: "But the lack of legal certainty tends to block growth and so perpetuate the situation of economic stalemate." It seems clear that to reach this conclusion we need not only look at foreign investors for this is equally true of the "engines" of growth, which are generally domestic. Taking foreign investors and the context of the global economy into account simply makes the statement even more valid. New Strategies of Growth The so-called "twilight of ideologies" has become so apparent in our country3 in relation to such well-known events that discussion of them is unnecessary. Perez Perdomo thoroughly describes the prior situation and its effects4 in the same manner in which he describes the features of economic programs of some nations of the continent. As he points out, it is clear that by necessity or conviction (or because the first leads to the second), these policies have certain common features: stability; privatization of public sector goods, services and enterprises deregulation; and finally, globalization. Constitutional Provisions and Legal Reform In the broad spectrum of basic rights and legal institutions needed to ensure the fulfillment of legal authority, we must endorse Vanossi's statement:5 "The defect of many Latin American constitutions is a common one. And in this area, nearly all have abandoned the principles of the founding fathers, preferring to employ the magic wand of norms to change reality itself, incorporating whole catalogs of illusions in an array of semantic tropical showers that seldom correspond to the reality of effective protection..." I therefore wish to recall a wise warning of one of the great Argentine thinkers of the past century, Juan B. Alberdi, who said "that more than proclaimed liberties, our continent needed practiced liberties, and that it was more constructive to create conditions for the exercise of liberties than to dive into the proclamation of abstract liberties." 3

Castan Tobenas, Jose. La socialization del derecho y su actual panordmica [Socialization of the law and its current status], Real Academia de Jurisprudencia y Legislation". Madrid, 1965, p. 27, with a quote from Fernandez de la Mora, Gonzalo. El crepusculo de las ideologias [The Twilight of Ideologies]. Madrid, Espafia; Rielp, 1965. 4 Bustamante, Jorge E., in "Nuevas reglas de juego para el progreso argentine" [New rules of the game for Argentine progress], mPropuestaspara una Argentina competitiva [Proposals for a Competitive Argentina], XIa Convention Nacional de Ejecutivos de Finanzas, Buenos Aires, Argentina, ed. 1990, pp. 237ff., he called that system "politicization of the economy." 5 Vanossi, Jorge R. "Protection de los derechos humanos en las constituciones de Latinoamerica" [The Protection of Human Rights in the Constitutions of Latin America]. Conferencia en el Congreso Extraordinario de la Federation Latinoamericana de Magistrados, in Revista de la Asociacion de Magistrados y Funcionarios de la Justicia Nacional, ano II, numero 4. Buenos Aires, Argentina, 1989, pp. 9ff.

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On the other hand, Rosenn studies constitutional measures designed to protect the independence of judges in Latin America,6 and from his reading, we reach the conclusion that statement of the various constitutions is important and significant. From various viewpoints, including, and principally, that of procedural law, many authors have insisted that assurance of justice is not necessarily tied to the inadequacy of formal legal systems or their reform.7 This clearly does not prevent these legal provisions from leading to a gradual and progressive improvement in the systems of certain fields which we will analyze. What we are saying, in sum, is that the rights situation indicated by both Perez Perdomo and Rosenn8 is basically not the fault of constitutional or legal systems but of an array of 6 Rosenn, Keith S. "The Protection of Judicial Independence in Latin America," Interamerican Law Review, vol. 19:1, pp. 2ff. The subject referred to in the text is discussed in Chapter IV, B, beginning on page 15, in a thoroughly detailed and documented form. 7 This is apparent in the teachings of Augusto M. Morello in several works. For example, see "Justicia y eficiencia. El VIII Congreso Internacional de Derecho Procesal" [Justice and Efficiency. The Eighth International Congress of Procedural Law], JA 1988-I-878ff.; "Poder Judicial y funcion de juzgar. Una lectura de la crisis en la administracion de justicia" [Judicial Authority and the Process of Judgment. An Examination of the Crisis in the Administration of Justice], LL, 1987; and "El principio de la seguridad juridica" [The Principle of Legal Certainty], JA semanario del 9 de diciembre de 1992, p. 2. A study by Roberto O. Berizonce of the dissociation between norms and reality is found in ED 114-860, "Evaluation provisional de una investigation empfrica trascendente para el servicio de justicia" [Preliminary Evaluation of an Important Empirical Investigation at the Service of Justice]. In Argentina, among other bodies concerned with the subject, it is worth mentioning FORES, Foro para la Administracion de Justicia [Forum for the Administration of Justice]. SetReformas a la Corte Suprema [Reforms of the Supreme Court], by Horacio Lynch y Silvana Stanga, ed. FORES, Buenos Aires, Argentina, 1987; La education legaly laformacion de abogados en la Argentina [Legal Education and the Training of Lawyers in Argentina], 2nd ed., 1988, the work of Drs. H.M. Lynch, E.V. del Carril, J.A. Mazinghi (h) S. Stanga y A. Gonzalez Rodriguez; id. "Diagnostico de la justicia argentina" [Analysis of Argentine Justice] with H.M. Lynch, S. Stanga, D. Leonard y R. Sanguinetti, discussed in "Un diagnostico de la justicia argentina" [Analysis of Argentine Justice] by Enrique V. del Carril, LL 1990-C-1837ff. A significant contribution comes from the authoritative pen of Alfredo di lorio: "Bases para la reforma de la estructurajudicial nacional" [Bases for Reform of the National Judicial Structure], LL 1987C-878. 8 Rosenn, op. cit., lists the major forms of interference with judicial independence: formal abrogation of its independence, as happened in Uruguay in 1977 (p. 23); avoidance of the judicial system by means of special courts (pp. 24-27); resignation or massive replacement of judges (pp.27-28); reassignment of tasks to judges (pp. 28-29); the illusory guarantee of reduction of wages (pp.29-30); defects in effective implementation of judicial measures (pp. 30-31); domination by the executive (pp. 31-32). At the same time, he attributes these problems to the legal culture and political experience of the region, in that respect listing the civil law and Roman tradition of the legal system which assign a lesser role to the judge; legal and constitutional changes (he points out that Latin American countries have promulgated 267 constitutions, an average of 13.4 per country); the constitutional possibility of suspending constitutional guarantees; the Latin American cultural and political tradition which, reflecting the Roman one, is strongly authoritarian; endemic problems such as corruption and low salaries; and the ineffective application of universalistic and egalitarian legal principles (pp. 32ff). It is apparent that many of the problems analyzed have been overcome (or sometimes did not exist in certain countries) while the statement on their causes may warrant several comments and readings.

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The Role of Judicial Authority and Legal Systems It is important to bear in mind the diversity of legal systems in order to establish the nature and extent of judicial activity. American law, basically an outgrowth of common law, was based on the primary statement of rights (of the citizen) that in some fashion were prior to, and distinct from, the political constitution. Prior in time because of their origin in the Bill of Rights or, for some, because of their basic and even "natural" character; and distinct since the rights were not originally included in the Constitution of the United States10 and, in that of Virginia, there are two parts: "Declaration of Rights" and "Constitution or form of government."1' To a certain extent, the authors thus recognize the American system as one of the supremacy of rights.12 In contrast, European law, more dependent on codes because of its origin and development, accords relevance to the law (or the codes). Thus, there is a certain tendency, up to the present day, to distinguish civil rights (of the laws) from political rights (of the constitution).13 The problem may be more serious when we note that in some countries of Latin America, the constitutional concept clearly follows the precedent and structure of the United States while the system of common law is basically Latin. This diversity leads us to two conclusions that are actually two sides of the same coin: • To judge systems as a whole and the effectiveness of the courts in affirming rights, the peculiarities of the legal system of the country must be kept in mind. The solution does not seem to lie in transplanting packaged solutions for specific institutions, unrelated to the rest of local legislation. • On the other hand, we do not agree that the law is a cause (or a factor) that interferes with judicial independence. If this were the case, it would be necessary to study why other regimes with Latin or continental roots (France, Italy, the Francophone provinces of Canada, or the Latin cantons of Switzerland, etc.) do not exhibit the rights that countries of the area display. In fact, an extreme consequence of such a belief would lead to the conclusion that in 9

Rosenn, cited in the preceding note and our text, Ch. II, no. 5. Reid, John Phillip, Constitutional History of the American Revolution. The Authority of Rights, Madison, 1986; Clavero, Bartolome. Los derechos y losjueces [Rights and judges], Madrid, Spain: Civitas, 1988, Cap. I. "America, la supremacia de los derechos" [America, the Supremacy of Rights], especially pp. 20ff. 11 Clavero, op. cit., p. 21. 12 Clavero, op. cit., note 10 and its numerous references and citations. 13 Clavero, op. cit., Cap. II: "Europa, la supremacia de la ley" [Europe, Supremacy of the Law], pp. 4Iff. 10

very complex and converging causes.9 The simplistic belief that the solution consists of simply modifying some legal provisions may divert the central objective of the analysis.

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order for Latin countries to enjoy judicial independence, they would have to modify their entire legal systems, a policy that is unacceptable.14 Further, it is immediately apparent that the direct consequences that those authors derive from the statement refer as much to public respect for judges as to their means of selecting and training judges, which has only a tangential relationship with the stated cause. In sum, we believe that even in countries with civil law and Roman roots, there can be conditions of independence and trustworthiness with respect to basic rights in the system of administration of justice.15 Historical Sense and Rationalism of the Change In a social science like law, the tendencies related to the context in which judicial life and the rationality of solutions and of changes develop reveal a constant area of tension and need for equilibrium. Thus Hernandez Gil l6 could say "the great coordinates according to which modern societies develop are historicity and rationality ... Historicity is awareness of change. Culture has its scope and its cycles. Absolutisms such as truth or reason are produced under the sign of the time ... We are inserted in systems of belief that culturally condition individual attitudes. The breezes of contemporary life even reach the ivory tower of the contemplative wise man. We must be aware that we are always at the heart of a process... In addition to awareness of history, progressive rationality is the other coordinate ... Law rationalizes coexistence; it gives it organization." What we are preaching, which will be spelled out immediately, is that we must interpret legal phenomena in terms of their time. During each historical period, people leave their mark on the preferred direction of solutions and try to include them rationally within a system of values. Changes of Jurisprudence and Political Changes Legal doctrine has analyzed trends in courts' jurisprudence (basically those of the supreme courts) of both the United States17 and of Latin America, revealing clear

Notwithstanding the above, the heralded acceleration of history and the globalization not only of trade but of culture and social, political, and educational phenomena, driven by the often surprising speed and ductility of communications, have produced a certain symbiosis between systems, moving them closer together so that they lose their "purity" and become eclectic. The development of integrated markets is a strong incentive for this convergence. 15 Boggiano, Antonio, in "Alternatives for the Creation of a Supranational System of Justice in Latin America and the Caribbean," communication to this seminar, highlights the existence of a minimum standard of justice and abstention from legal discrimination in the application of international law, pp.2-3. 16 Hernandez Gil, Antonio: La ciencia juridica tradicionaly su transformation [Traditional Legal Science and its Transformation], Madrid, Spain: Civitas, 1981, pp. lOOff, item called "Conciencia de la historicidad y racionalizacion" [Awareness of Historicity and Rationality]. 17 Tribe, Laurence H., American Constitutional Law, 2nd ed. The Foundation Press, New

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"periods" or "stages."18 In some cases it even classifies them in terms of adherence to currents of social policy ("liberals," "conservatives") and identifies the types of problems most often dealt with and trends in decisions.19 This rationalization of the trends of individual decisions reveals two things: the historicity of the decisions because in all cases they were the expressions of clearly identifiable temporary conditions20 and on the other hand, the existence of changes which, beyond the principle of "stare decisis", are ways of adapting to the times with variations in established judicial precedent.21 To apply the central theme of our thesis quickly and perhaps traumatically, justice has not been removed from the passing appeals of development. In Argentina, beginning in the periods in which the concept of autonomous development prevailed, consent was given to controlling measures, nationalizations, and state intervention in the economy.22 Recently, successive government measures to stabilize the economy (the Plan Austral, accompanied by a torrent of credits; law of convertibility, etc.), reform of the state with privatization of most of its services and businesses, integration and globalization of the economy23, and needed and urgent executive decrees have been accepted within a framework of constitutional analysis by the Court.

York, 1988; Schwartz, Bernard, "La Corte Suprema de los Estados Unidos: cambios recientes y tendencias futuras en el Derecho y los problemas contemporaneos" [The Supreme Court of the United States: Recent Changes and Future Trends in the Law and Contemporary Problems], Academia Nacional de Derecho y Ciencias Sociales, Cordoba, 1991, Libra del Cincuentenario, pp. 33ff; Dorsen, Norman, "Tendencias y perspectivas de la Corte Suprema de Estados Unidos" [Trends and Perspectives of the Supreme Court of the United States], in Revista de la Universidad de Puerto Rico, 1985, no. 2, pp. 181ff. 18 Bianchi, Alberto R., Control de constitucionalidad. El proceso y la jurisdiction constitucionales [Control of Constitutionality. Constitutional Procedure and Jurisdiction], Abaco, Buenos Aires, Argentina: 1992 (Coleccion Universidad Austral-Derecho), especially Ch. V, "Tendencias juridico politicas del control de constitucionalidad" [Legal-political Trends in the Control of Constitutionality], pp. 385ff; Morello, Augusto M.: La Corte Suprema en action [The Supreme Court in Action], Platense. Abeledo Perrot, La Plata; Buenos Aires, Argentina, 1988, among many others. 19 The authors mentioned in note 17 and other Americans often designate successive courts with the names of their chief justices: "Warren Court," "Burger Court," "Rehnquist Court," etc. as indicators of directions in judicial policy. 20 Op. cit. in preceding Notes 17,18, and 19. That "environmental" influence is obvious when one reads in Dorsen, "The Supreme Court was not always a champion of justice, as Justice Black once described it. In the 20th century, it was the bastion of racism . . .," and he cites several cases (p. 185). Bartolome Clavero refers to the Act for the liberties of Maryland of 1639 (during the colonial administration prior to the Constitution) which was resolved for all the inhabitants of this Province being Christians, Slaves excepted, which indicates a context. 21 The opinion of Black, as a Justice of the Supreme Court of Justice of the United States, is interesting in a dissent which stated: "In general, it is good policy to follow prior decisions, but this practice was never really a blind and inflexible norm . .." in Green v. U.S. 356 U.S. 165, 195 (1958). 22 See the decisions cited, for example, by Bianchi, op. cit., pp. 418ff. 23 See development below, Section III, no. 1.

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Even in Argentina, some academic observers have noted a judicial "activism"24; the initial position is sometimes approached with complete changes (for example, the courtroom admission of the per saltum motion)25, and others directly recognize the replacement of jurisprudence by numerous grounds.26 This subject leads us directly to another one which lies beyond this study: that of getting to the bottom of the political role of justice. This is an issue which is directly related to one that is frequently debatedâ&#x20AC;&#x201D;limitations on the power of the courts ("the government by judges") and self-restraint in political matters.27 They are raised simply as notes to the discussion. To sum up. This issue invites analysis in two compatible directions (although actual implementation has its own problems): a) justice, socio-political environment and its functions, within its mission, will certainly encounter appeals for new strategies of development; b) the limits to this majestic republican policy toward justice will be supplied by correct definition of the areas normally forbidden to the Court and, on the other hand, by affirmation of the system of rights of which it is the final guardian. Efficiency and Guarantees

Changing the subject, since we must also deal with procedural aspects, it is appropriate to recall the reflections of a thoughtful modern jurist, Piero Pajardi. He has said, "It is a mistake to consider the efficiency of the process as a purely

Judicial activism has been highlighted by Argentine doctrine. Morello, Augusto M. "El activismo de la Corte Suprema de Justicia de la Nacion" [Activism of the Supreme Court of Justice of the Nation], inAnales de la Academia de Derecho y Ciencias Societies, 1988, no. 25, p. 63; Berizonce, Roberto O." "El activismo de los jueces" [Activism of the Judges], LL 1990. 25 In the case of Dromis. avocacion, causa D. 104 XXIII of September 6,1990, ED 138598 and LL 1990-E-97. The outcome gave rise to several comments on doctrine; see the list in Recurso extraordinario par salto de instancia [Special per saltum Motion] by Horacio D. Creo Bay, Buenos Aires, Argentina, Astrea, 1990. The Supreme Court had previously introduced Motion for Relief 2 in the Kot case. 26 For example, in Ekmekdjian c. Sofovich of July 7, 1992, JA 1992-III, 199ff., especially whereas clause 18; and YPF c. Provincia Corrientes y Otro of March 3,1992, JA 1992-1, 57Iff. 27 Doctrine and law on the point are abundant in both the United States and Argentina. See Haro, Ricardo S., "Las cuestiones politicas ^Prudencia o evasion judicial?" [Political questions: prudence or judicial evasion?] in El derecho y los problemas contempordneos [Law and Contemporary Problems], cited in note 17, pp. 140ff; Bianchi, op. cit., pp. 281ff.; Bidart Campos, German J. in several works: see La interpretation y el control constitutionals en la jurisdiction constitutional [Constitutional Interpretation and Control in Constitutional Jurisdiction], Buenos Aires, Argentina: Ediar, 1988; "Unacuestion nojudiciable quehadesaparecido" [An unresolvable question that has disappeared: the political proceeding], ED 128-465; Bidegain, Carlos M. "Control judicial y control politico en la Argentina" [Judicial control and political control in Argentina], ED 87-579, etc. In "The two courts," op. cit., Morello states: "There will be fewer political questions" and "more judiciable questions" upon which the Court must rule, p.6.

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organizational matter that does not affect principles... If procedure is a tool of individual and social life and is the means of making and having justice, and if justice is the object of life, essential to the realization of the existence of each individual person, the tool, it goes without saying, must operate...The philosophy of the instrument requires efficiency, and the philosophy of the person served by the instrument, requires guarantees."28 The swing of the pendulum between efficiency and certainty is resolved, simply but profoundly, by the Italian teacher. Later we will see that all of this confronts the realities of our countries, many of them of a cultural nature, others of an economicbudgetary origin. The Legalistic Reorientation of Social Life and Other Factors for Change To fully appreciate the current importance of the subject, consideration must be given to the presence of two aspects that we might describe as novel or, from certain perspectives, typical of contemporary life. On the one hand, in the countries of Latin America and the Caribbean, there is increased agreement among growing sectors of society on the existence of rights that concern them as well as alternatives to the procedures that protect them. Major sectors of society and many types of issues have been exposed and are in need of attention and resolution. It is enough to review the media and the role of intermediate social groups to appreciate this phenomenon which will force us to consider new alternatives for access to justice for all social classes and the need to resolve new types of cases or a greater number of them. On the other hand, this phenomenon is clearly related to the substantial development and influence of other factors of change. I refer specifically to channels of communication and intermediate bodies. I only note that the multiplication, ductility, and speed of means of communication have expanded public awareness of the existence of rights and of forms of protection (including knowledge and criticism of procedures), in such a way that the legal orientation of social life has a first-rate engine and an additional source of control. Finally, associations and bars of attorneys—with the economic limitations that they face in our countries—are increasingly stressing the value of law and justice in social life, important matters not to be forgotten at the time of implementing solutions. SOME SUBSTANTIVE MATTERS In this section, we will try to briefly summarize some key subjects concerning the conduct of justice as it relates to the new policies toward development and some aspects of the new socioeconomic reality. Since we have already warned that this analysis is incomplete, we will simply take the opportunity to identify the fundamental aspects of the judicial or legislative reality of Argentina. 28

181.

Pajardi, Piero. "Obbietivo giustizia" [Objective Justice], Padua, Italy: Cedam, pp. 180-

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Through legal sanctions (laws or decrees), jurisprudence has analyzed the new profile of economic reality and the inclusion of rights in the new network. Stability With approval of the law of convertibility29, in an extensive ruling that recognized the legal evolution of the issue, the Court touched upon both the enormity of the prior situation and the initial context of the desired stability. The reasoning showed how important the Tribunal believed explaining the aspirations and expected relief to be.30 Statements of approval had been made earlier with respect to the so-called Plan Austral. Privatization In a case in which the federal judge of first instance had granted a preventive measure that could hinder the privatization process, the Court considered there to be sufficient institutional significance to consider the case directly.31 The decision (which the Court evaluated at a later date on legitimacy grounds) was instituted through the extraordinary per saltum courtroom procedure,32 as the Court had done much earlier in another context when it accepted a procedure for relief33 that was later approved legislatively. Necessary or Urgent Regulations or Decrees As occurred in 1987 with approval of Decree 1096 followed by some others, the Executive issued several "necessary and urgent decrees," in response to the crisis that the country was undergoing, which, in its judgment, made immediate legislative steps advisable. The Court repeatedly stated that within certain parameters, which it dealt with exhaustively, those norms should be considered valid.34

Law 23.928 of March 1991. See Alegria, Hector and Rivera, Julio C.: La ley de convertibilidad [The Law of Convertibility], Buenos Aires, Argentina: Abeledo-Perrot, 1991. 30 YPF c. "Prov. de Corrientes," March 3,1992, reproduced in JA 1992-1571ff, Whereas llff. 31 "Dromi s. avocation," op. cit. See note 25. 32 Similar to American law, see Whereas 16 of the sentence. Various legislative proposals considered this procedure, consisting of direct intervention of the Court, in rare cases, in matters decided and appealed before lower court judges. See Creo Bay, op. cit. 33 "Kot case," Fallos, 263:318 (1958). 34 The Peralta case of December 27, 1990, JA 1991-11, 556ff, which earned uneven comments by the doctrine. The Camara Federal en lo Contencioso-Administrativo Sala 3a. [Federal Administrative Tribunal, Third Division] (Video Cable) said, however, that those decrees could not impose taxes, JA 1992-III-540, and that they were ephemeral, to be ratified in due course by the Congress.

Measures Linked to the New Development Strategy. The Assumption of Importance and Consecration of the Emergency

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In 1989, when the current government took office, two important and detailed laws were approved that, facing a serious situation, introduced numerous reforms with reference to institutional, political, social, and economic spheres. Many of them were related to the evolving legal situations which they modified in various ways. The bases for those laws, the parliamentary debate, and later doctrinal discussions centered around the conditions for exercising limited rights and the constitutionality of the provisions. In general, in the cases presented, the Court upheld the rules on different grounds.35 The Effectiveness and Status of International Treaties In a case which involved the status of the Pacto de San Jose de Costa Rica [The San Jose Pact]36 and the so-called right of reply or response, the Court developed important doctrine that is applied to economic integration treaties (especially but not only MERCOSUR) and other agreements designed to integrate the Argentine economy into the global system. The majority stated, among other things that: • a treaty is essentially a federal norm that can only be modified by congressional legislation; • the Vienna Convention, which the Republic signed,37 specifically establishes the supremacy of international treaty law over domestic law. This implies a modification of Argentine law as developed in some precedents; • if a treaty contains sufficiently specific descriptions that make immediate application possible, those norms are directly applicable without the need for implementing domestic legislation; and • interpretation of a treaty should be guided by the law of the Inter-American Court of Human Rights. Regardless of the interpreter's opinion of the outcome of the case,38 the reasoning substantially modifies the Court's earlier jurisprudence and, as we shall soon see, affects major elements of the processes of integration and globalization. 35

Supreme Court in "Videla Cuello" 27.12.1990 ED 142-143 with a note of Bidart Campos; other courts; CCivil, LL 1992-C-371; id.LL 1992-C-345; See Leyes de Emergencia— Decretos de necesidady urgencia [Emergency Laws—Necessary and Urgent Decrees] by N. Lugones, A. Garay, S. Dugo Y S. Corcuera, Buenos Aires, Argentina: La Ley, 1992. 36 Ratified by Argentina through Law 23.054. 37 Vienna Convention on Treaty Rights, approved through Law 19.865, ratified by the National Executive on December 5, 1972 and in effect since January 27, 1980. 38 The case, involving protection of the religious convictions of the individual, caused a split in the Court. The majority believed that it affirmed action on the right of reply or response; the minority did not agree. The issue caused broad public debate with differing opinions of the final outcome. The law was upheld in the interpretation of the current Minister of the Court, Dr. Barra, in El rol de la justicia en el proceso de integration" [The Role of Justice in the Process of Integration], LL 1992-11, ruling, 853ff.

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With respect to the preceding analysis, it is appropriate to touch on a matter that is relevant to us, at least in the countries of the Southern Cone of America. With regard to its application to the integration process, the ruling discussed above clarifies various issues: the primacy of the treaty over domestic law; the direct application of operating norms (which will have to be interpreted if they also apply to derived law); and acceptance of the supranational authority of collective bodies, even without constitutional reform. It should also be pointed out that methods of resolving conflicts have been a constant concern in the processes of integration, especially in MERCOSUR [Southern Cone Common Market]. In this regard, the Treaty of Asuncion (a cornerstone of the process of integration, according to Gross Espiell) considers some elements of the problem later developed in a Protocol for the interim period.39 Features of interest are the formula adopted for resolving disputes (negotiation, mediation, and finally arbitration) and the role of private parties in the process.40 These and other topics related to the resolution of disputes (regardless of the existence of courts or permanent tribunals; their nature; remand to local courts, as in the EEC; etc.) should receive the attention of our jurists during the period of integration an economic strategy within a framework of globalization. Agreements on the Protection of Investments and Procedures in the Case of Conflicts In this era, bilateral agreements on the protection of investments are common. They lead to globalization and the opening of economies and the inflow of foreign capital. Argentina has signed and ratified a substantial number, and in many of them there are provisions for arbitration for resolving conflicts. Arbitration is also provided for cases brought by individuals. The subject is important because it presents another alternative within a field that has been especially sensitive for investors and countries alike. Protection of the Environment and Diffuse Interests If the subjects are varied, they also have areas in common. These issues are undoubtedly topics for consideration on a list of Latin American problems. In Argentina, even 39 "Protocol of Brasilia for Resolving Disputes." Decision 1/91 of the Consejo de Mercado Comun del Cono Sur (MERCOSUR). Brazilia, Brazil, December 17, 1991. Adopted by Argentina through "Ley No. 24.102 of June 17, 1992 and published in the Boletin Oficial de la Republica Argentina, July 14, 1992. 40 Section V deals specifically with "Reclames de particulares" [Claims of individuals] to whom it grants the right to appeal to local authorities and secure, in turn, the mobilization of collective mechanisms, the organization of a "committee of experts," and even the organization of the court of arbitration (articles 25 to 32).

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without a specific law, various regulations have had a bearing on protection of the environment and the prevention of ecological damage. Even penal justice, based on protective rules, is creating awareness of the issue. The newsworthy component of cases involving the environment adds to this awareness. It is interesting to note how the courts have adopted the general legitimacy of defending diffuse interests related to ecological matters.41 Consumer Protection This is undoubtedly a burning question nowadays. In Argentina, there were several draft laws, one of which has been passed by the Chamber of Deputies and is now being considered by the Senate. Meanwhile, several judgments, based on common law, have been handed down, regarding various aspects of consumer protection.42 Expanding the Negotiable Frontier of the Contract. The Agreed upon Application of International Law, Arbitral or Foreign Jurisdiction Argentine reality follows the work that we have discussed in the development of contract law, especially that which involves one or more foreign parties (which have increased with privatization, including contracts with foreign businesses). This contract law is imbued with a certain casuistry and the substantial technical elements it entails (the legal element providing institutions and clauses new to our domestic rights and the technical element linked to the subject matter covered by agreement, requiring interdisciplinary legal work). The contracts that concern us usually cover specific topics related to the resolution of disputes, particularly arbitration procedures, rules for the application of 41

The cases of Quesada, from a federal administrative court on the felling of trees; Kattan c. Estado Nacional of November 21,1983, in Ambiente y recursos naturales [Environment and Natural Resources], numero 1, 1984, p. 57, concerning the sale of tuna; ibid., "Kattan c. Gobierno Nacional", on the protection of albacore, Primera Instancia en lo Contencioso Administrativo, May 10, 1983, same journal, numero 2, 1984, p. 75 and in LL 1983-D, 568, with dissents, one in support—Cano, G., "Un hito en la historia del derecho ambiental" [A Milestone in the History of Environmental Law]—and one against—Marienhoff, Miguel, "Delfines y toninas y accion popular" [Dolphins and tuna and popular action], ED 105-244 and in "Nuevamente acerca de la accion popular. Prerrogativas jurfdicas. El interes difuso" [About Popular Action Again. Legal Prerogatives. Diffuse Interest], ED 106-922; the same parties referring to cigarette advertising in the first case, Ambiente y recursos naturales [Environment and Natural Resources], numero 4,1985, p. 88; and that brought by several persons against the Fabricaciones Militares company for the production of sulphuric acid, Camara Federal de la Plata, March 7, 1987, id., Vol. 4, numero 1, 1987, p. 68. Newspapers have recently reported another case, brought by a citizen, concerning the plan for an oil or gas line that could affect a major penguin colony in the southernmost area. (We still lack details.) 42 See Alterini, Atilio A., Lopez Cabana, R. M. and Stiglitz, Gabriel: "La protection del consumidor en el marco de un proyecto de ley" [Consumer Protection in the Framework of a Draft Law], LL 1989-B, doctrina, pp. 1002ff. and the antecedents cited there and in StiglitzStiglitz, Buenos Aires, Argentina; Depalma, 1983.

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foreign law, and waivers of jurisdiction. The validity of these agreements, especially those concerning provisions applying domestic law and submission to international courts and arbitration tribunals, have been the subject of various opinions in the laws, the jurisprudence and the doctrine.43 Alternative Systems for Resolving Conflicts and other Means of Protecting Interests These topics may fall between substantive issues of judicial action and their organizational aspects. We will deal with them here while recognizing that their dual nature. Within this sphere, there are different situations: alternative procedures, properly speaking, and other forms of protection which will be dealt with separately. Arbitration This traditional method covered by legal codes since the early days has had little practical use. The reasons are varied, but they will not be discussed here. At present, the state reaches arbitration agreements and frequently turns to arbitration. With respect to private parties, a significant current of opinion encourages this method of settlement. In practice, arbitration tribunals have been established in a substantial number of institutions (Bolsa de Comercio y Bolsa de Cereales [Stock Exchange and Grain Exchange], which have the oldest and most frequently used ones; Union Industrial [Industrial Union], Colegio de Abogados [Bar Association], Bolsa de Comercio de Bahia Blanca [Stock Exchange of Bahia Blanca], etc.). The Faculty of Law and Social Sciences of the University of Buenos Aires and the Notaries Association of the federal capital have established a General Arbitration and Mediation Tribunal, equipped with precise rules and facilities for its operation. The Executive, in turn, following the work of a commission of specialized jurists, sent to Congress a draft law on arbitration that is being considered by the two houses. Mediation and Similar Practices This subject has also aroused interest, which led a commission chosen by the Ministry of Justice to develop regulations for the corps of mediators that is to be created. The same commission is also preparing a draft law on the subject, is developing a National Mediation Program, and is analyzing the establishment of a

The National Code of Procedure stated in article 1 that it prohibited the extension of conventional jurisdiction to foreign arbitrators or courts. It was modified by Law 22.434 allowing that extension unless Argentine courts have sole jurisdiction or the extension is specifically prohibited by law. On this point, Boggiano, Antonio, Derecho international privado [Private International Law], Buenos Aires, Argentina; Abeledo Perrot, 1991, tomo II, pp. 1049ff.; on the application of foreign law, id., tomo I, pp. 575ff.; and on contracts, tomo II, pp. 253ff.

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The Ombudsman or Public Defender In several provincial jurisdictions and the Federal Capital (metropolitan area) public defenders are already active. An executive draftbill, to be debated in the upcoming special sessions of Congress, proposes to establish that function in the federal government. Domestic and foreign literature on the ombudsman is substantial. It is clear that its role, in addition to improving administrative service and making more transparent the work of public officials, permits a strong affirmation of the rights of individuals in relation to the administration, especially in matters in which, for various reasons (amount, complexity of proof, etc.), a case is unlikely or inadvisable. Furthermore, it provides for more efficient protection of "diffuse interests." Other Forms of Protection of Specific Interests Under this heading, we group various (possibly atypical) types of protecting certain rights. We refer, for example, to so-called "administrative tribunals" or administrative jurisdiction (tax courts, tribunals, Central Bank proceedings involving exchange and financial entities, the Office of the Superintendent of Insurance, and a myriad of others). At other times, the main or—most important function, in certain public bodies and branches, consists of protecting interests and bodies that oversee markets, organs of this sort—the National Securities Commission for example—may even reject specific individual activity. The Supreme Court has admitted the existence of these jurisdictions but considers their decisions subject to judicial review. In many instances, review is handled directly by appeal courts, thereby shortening the procedure. JUSTICE AS A SERVICE Subjects related to the administration of justice and procedure may go beyond the boundaries of this section and belong to some of the preceding ones. Nonetheless, since Dr. Perez Perdomo's article includes some references to this topic, we will engage in some discussion that may contribute to their clarification. The Budget for Justice As we know, this is one of the painful subjects in developing countries and in some developed ones. In Argentina, for example, after years of debate and anticipation, the so-called judicial autarchy was approved. With Law 23.853 of September 1990, the Supreme Court calculates the budget for the judiciary. Special resources to meet these expenses largely come from "court rates" and shares (50 percent) of the "spreads" in

pilot mediation plan for some tribunals. Creation of a national mediation school is also anticipated.

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the deposits or investments ordered by judges and on operating commissions on securities of similar origin. In general, these resources will consist of 3.5 percent of tax and nontax resources of the central administration plus the additional sum allocated annually for construction. In order to strengthen the organization of the judiciary and physical resources at its disposal, the flow of these resources and of the budgets must be analyzed. Payment of Judges Constitutional codes guarantee both the tenure of national judges (tenure of provincial ones are guaranteed by the respective constitutions), and the level of compensation. Decisions of the Supreme Court (consisting of associate justices) have established that the calculation of compensation should take into account the devaluation of the currency.44 Similar rulings were handed down in several provincial jurisdictions. Oral Proceedings The new national penal procedural code established oral proceedings for criminal cases. This has required significant investments in facilities (although many tribunals for oral proceedings have been installed in public buildings released as a result of privatization or the dissolution or downsizing of other agencies). Oral tribunals are now beginning to operate, and the press and the people generally view the reform with interest. Selection of Judges In the federal and national systems, the constitution establishes the American system of nomination by the Executive with consent of the Senate, and life tenure. Decree 1179 of 1991 created an Advisory Commission on Judges to consult on the selection of all judges that require consent of the Senate, except for members of the Supreme Court. A draft law under consideration by Congress proposes a Judicial Career Law that includes the creation of a school for the judiciary.

In re Bonorino Pero, it should be noted that on one occasion the Federal Court of the United States, surely in less serious circumstances, indicated that inflation did not affect intangibility of compensation (Atkins v. U.S., 556-F.2d 1028 (1977)). Defense of the judicial budget led to a strict ruling of the Supreme Court that declared null (and unconstitutional, according to a minister) an executive decree which suspended Law 23.853 (financial autarchy of the judiciary) for a year. ED 144-271, with a note of Bidart Campos, "La Corte Suprema ante un desborde institucional del Poder Ejecutivo" [The Supreme Court and Excessive Exercise of Executive Authority].

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Removal of Judges Following the traumatic experiences involving "commission" situations or mass removal of judges (characteristic of former political avatars), judges cannot now be removed except for misconduct. Removal requires a political process that, according to the national constitution, includes impeachment by the Chamber of Deputies and hearing by the Senate. In fact, this type of case has been tried and others are underway. Nevertheless, future reform should make the procedure more flexible. The substantial increase in the number of judges since the enactment of the constitution (1853) and concerns of the legislative chambers themselves do not make these proceedings very quick. As the experience of some provinces shows, it seems advisable—at least for courts below the Supreme Court—to use grand juries with the participation of the executive and judicial authorities and bodies of the legal profession. Small Claims Litigation With the disappearance of justices of the peace from the national courts (but not in all provincial jurisdictions), interest in the operation of small claims, neighborhood, and similar courts has been revived. The executive sent Congress, where it is now under consideration, a draft of "Small Claim Courts" for the federal capital. Counseling and Representation of Low-Income Persons This seems to be a generally unresolved issue in most of our countries. In Argentina services to low-income persons are provided by different institutions (The Bar Association, law faculties, official defenders and advisers of the judiciary, municipalities and private intermediary agencies). The Ministry of Justice has organized a social program of legal service and community legal training. FINAL THOUGHTS We were tempted to end this work with a series of conclusions. However, we have resisted that temptation, leaving it to the reader to arrive at on his own. If we assume the connection between growth and the operation of justice and that this operation with respect to the strengthening of legal certainty is based on a myriad of factors, including problems of human resources, training and the organization of services and resources of the infrastructure, we may attempt a conclusion.

Several provincial constitutions and laws establish systems of consultation and nomination for selecting judges that involve participation of the judiciary itself and of representative bodies of the legal profession.

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As international agencies and agreements have assigned priorities to various policies (for example, programs to reform administration of the state or to restructure financial or health systems, etc.), there may be a call for future support and initiatives to emphasize the training of human resources in the field of justice, the design of administrative organization, and resources for their implementation, depending on the needs and requests of different countries. As recent studies have indicated, time periods for these actions and reforms vary so that it is necessary to start immediately. Permit me to conclude with deep respect to the host country, Costa Rica, whose justice has often been singled out as exemplary in Latin America.

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Modernization of the Administration of Justice in Colombia

Carlos Gustavo Arrieta Padilla Attorney-General of Colombia

I believe there can be no question, as Professor Perez Perdomo correctly points out in his paperâ&#x20AC;&#x201D;and as others who have spoken before me have affirmedâ&#x20AC;&#x201D;that the new trends stemming from the ongoing process of globalization will profoundly influence the law and the administration of justice in the years ahead, and that one of the greatest challenges our countries are likely to face, lies in the institutional adjustment needed if Latin America is to successfully fit into the process of internationalization now under way on the continent. However, from the standpoint of our profession and the issues that bring us together today, the situation is not so clear. Indeed, the challenge presented by the change is not only to adjust the rules of law to the realities of the economic world but, first and foremost, to create the legal and sociolegal conditions that will allow the process of globalization to be accommodated rationally, and without major trauma, within the context of our socioeconomic problems. For in countries beset by incessant social conflicts, marked by high levels of income concentration, and where basic needs are met only to a limited degree, the role of law and justice transcends the dimension of business and must, above all, have the virtue of creating stable conditions that will allow a process of globalization to occur and unfold successfully. Failing this, globalization, rather than being a solution, could become a source of greater problems. For if we do not have a legal and judicial system that fulfills the defusing, stabilizing, cementing, and democratic political role that it ought to have, we shall be able to make little headway on the economic and social fronts. Consequently, we shall be poorly positioned, at least in the short and medium terms, to take real advantage of the process of change that is imminent. In the age of globalization, therefore, justice requires two basic ingredients for success, without which any justice reform program runs the risk of failure. The first is a set of rules tailored to each country's social and political realities and individual circumstances. The second is a streamlined judicial apparatus suitable for solving the myriad disputes that occur daily at all levels of our social and economic life. In discussing these two subjects further, I shall take as my reference point Colombia's

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recent legal and constitutional reform, the outcome of several years of soul-searching with respect to the judicial problems that my country has been experiencing for more than a quarter of a century. However, without minimizing the other political and legal goals of the reform, I should make it clear that it was designed in large measure to solve the chronic problem of violence and impunity that, for reasons you are aware of, has plagued Colombia ever since the rise of organized crime associated with drug trafficking. Colombia's problems in the area of justice are not new and are very closely related to the issues that bring us together today. Our judicial problems were similar to those that some of our neighbors are now facing, inasmuch as the origins of our systems, their foundations and customs—at least among those of us whose judicial systems are of continental origin—have very similar roots. This also holds true for their evolution and current status. Simply put, owing to the presence of the violence to which I referred earlier, the situation assumed crisis proportions in our country, forcing us to take on one of the most ambitious institutional reforms undertaken by Colombia in many years. I feel our experience is important because of the magnitude of the reform and because in the process of reform we studied many of the topics being discussed in this Seminar today. Judicial reform in Colombia was thus built around three main goals, each of which addressed chronic problems related to the administration of justice identified in detail during the years of study that preceded the reform. First, in response to the increase in violence related to guerrilla activity and organized crime, we endeavored to strengthen the government's social control capacity by converting a penal system based on inquiry into one in which accusatory proceedings are predominant. The ultimate purpose was to enhance the capacity to combat antisocial behavior, which has been a pervasive problem and had become one of the chief obstacles to harmonious social development in Colombia. However, we discovered in the process that the main problems associated with such deficiencies did not lie exclusively, as we had thought, with the Republic's judges. In fact, the problems also involved the inability of the police and security organizations to present the information and evidence needed for persons to be properly tried within a rule of law. Thus, apart from giving the judicial process added muscle through the establishment of an Attorney General's office, a tremendous effort has been made in Colombia to modernize and equip the entire judicial investigative apparatus and the entire infrastructure designed to support the process that begins with the investigation and ends with the verdict. An essential complement to the foregoing—needed to preserve the correct balance—was the strengthening of control mechanisms through the Public Ministry and the development of a public defender system to assure that individuals' due process rights would be fully respected. The second building block of the reforms was the modernization of the entire operating system of the judicial sector through the allocation of increased resources to the branch, the development of a new organizational structure, and the corresponding autonomy and financial independence. The intention was to achieve this modernization by establishing a Superior Judiciary Board, composed of magistrates of a rank equal to that of members of the Supreme Court of Justice or the Council of State. This Board addressed, simultaneously, the challenges of strengthening the legal profession,

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administering the branch's budget, deciding on its operating organization, and coordinating the sector's training plans and programs. This was admittedly a grand and ambitious project, and its results have yet to be seen. The success of the project will depend in large measure on the Board's ability to spearhead suitable modernization programs and to keep them insulated over time from the twin threats of bureaucratic pressures and resistance to change that are characteristic of the judicial sector virtually throughout our subcontinent. Finally, the third building block of the reform was to bring justice closer to the citizens by establishing judicial and out-of-court procedures designed to develop alternative conflict resolution mechanisms that can be applied at all levels of daily life. The aim was to achieve this with the help of three main innovations: first, introduction of the writ of protection—an expedient similar to the right-to-relief provided for in the legislation of some countries—which provides citizens with direct access to an immediate mechanism for protecting their basic rights; second, strengthening of conciliation as an out-of-court or alternative means of resolving disputes; and third, broadening the powers vested in police inspectors as administrative officials responsible for settling minor problems involving neighborhood disputes, minor infractions, or the everyday community life of the population at large. These inspectors will discharge their duties through quick oral proceedings far removed from the formalism that marks judicial decisions. In the short time it has been in use, the first of these innovations has been surprisingly effective in resolving disputes that would otherwise have dragged on for years. At the same time, for reasons largely attributable to the Executive and Legislative Branches, it has not yet been possible to implement the other two fully, that is, conciliation and strengthening the powers of police inspectors. Naturally, it remains to be seen how successful the reform I have outlined will be, as we are all aware that in the realm of justice, results are achieved only in the long run. Nevertheless, we are optimistic about the potential results, as the early indicators suggest that we are moving in the right direction. It remains for us, then, to tackle a second major challenge, one which must be addressed in order to complement what has been achieved so far, namely to modernize many of the rules of substantive law currently in effect. For we stand to gain nothing if we modify the institutions or some forms of proceedings without simultaneously changing the content and philosophy of the rules of the game prevailing in society. We have seen, for example, how in exercising its functions the Attorney General's office has come up against a penal code that enshrines different and at times contradictory principles; and how both conciliation efforts and the work of police inspectors will confront civil, labor and commercial codes that are largely obsolete—being predicated on assumed social realities that do not in fact exist—and which in no way reflect the rules that govern everyday life in Colombian society today. Unfortunately, however, the solution to such problems in our country does not depend exclusively on the judges but also on the legislature, which must shoulder the responsibilities incumbent upon it in these areas. This is true because without an effective and up-to-date law that mirrors a society's sense of justice, as the President of the Bank rightly noted in his inaugural address, even the best of judicial infrastructures will fail in its efforts to modernize. This explains why—and here I depart somewhat from what Professor Perez Perdomo states in his paper—I believe that justice and globalization must be managed in a rather broader context. It is true that business law is in need of a major overhaul

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to cope with the challenge of a more open economy and the increased volume of world trade. It is no less true, however, that this area of law, precisely because of its dynamism, is bound to be the easiest to modify, since, at least in my country, it is commercial law, as applied to organized economic activities, that has proved to be the most flexible and the quickest to respond to changing economic circumstances. But in addition, and above all, globalization calls for the existence and operation of integral schemes for the administration of justice and substantive rules of law that reflect the actual realities and values of the great majority of the people in our countries. These rules must also genuinely serve to facilitate the resolution of disputes of all kinds, in such a way that an entire country, and not just its businessmen, can benefit from them. In this way, globalization will assuredly produce the social impact that we are all anxious to see. And it is toward this goal that Colombia's constitutional reform is, in part, directed.

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Labor Law in Brazil

Carlos Eduardo Bosisio Labor Attorney (Brazil)

OBJECTIVE This paper seeks to present an analysis of the labor law in Brazil, describing the model for its organization and operation as originally designed and outlining its evolution to the present. It also examines to what extent this system responds to the current needs of Brazilian society at its present stage of development, and proposes a critical review based on general principles that emanate from the pluralist and democratic organization of a country that has attained a high level of economic growth and aspires to modernization. Specific areas in need of reform are identified when that need is particularly urgent. The scope of such an objective extends well beyond the necessarily brief nature of a conference paper. In the interest of brevity, some potentially important items have been omitted while others have been presented in less than full detail. This has been done in order to supply basic information and key indicators of a general strategy to meet the challenges and take advantage of the opportunities of change. LABOR LAW AND THE JUDICIAL SYSTEM Brazil's judiciary consists of a federal court system and a system of courts for the states, territories, and the Federal District. At the federal level, the judiciary comprises: • the Federal Supreme Court, which is the highest level in the judicial system and acts mainly as a constitutional court; • the Superior Court of Justice, whose basic function is to review decisions of the state and federal courts with a view to ensuring uniformity in their jurisprudence and safeguarding the integrity of substantive law; and, • four specialized branches covering specific areas or groups of individuals: the military courts, the electoral courts, the federal court system (with special jurisdic-

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It follows from this that labor law, as well as all legislation covering labor relations and labor-related matters in Brazil, falls under federal jurisdiction. The labor justice system is independent and self-contained vis-a-vis the rest of the judicial system: labor court decisions are not subject to appeal in any other court, except in the rare cases of infraction of the Constitution, in which case they can be appealed to the Federal Supreme Court. The labor court system is also in charge of executing its own judgments. Under the Constitution, the labor courts are empowered to: • hear and rule on individual labor disputes, including those involving legal entities under international or municipal public law or indirect public administration, when such entities are the employer in an employment contract (except for government employees, who fall under a separate administrative law system); • hear and rule on collective labor disputes, be they legal or financial in nature; • hear and rule on other disputes involving labor relations; and • hear and rule on litigation arising from decisions handed down by the labor court system, including collective rulings. The labor courts' authority to rule on collective disputes of a financial nature falls under their so-called regulatory power. This regulatory authority includes the power to decide by arbitration—in the event of failure of direct collective bargaining between the union representing the employees and the employer or the body representing the employers—claims for higher wages or better working conditions, and setting rules and conditions that have the weight of special temporary legislation for the categories located in the parties' territorial jurisdiction. These are known as "regulatory decisions." The judiciary does not normally have the function of creating jus novum, based on the criteria of equity and opportunity; it interprets and applies legislation existing prior to the facts. Brazil's Constitution allows for the labor courts' jurisdiction to be extended— by law—to cover other areas associated with labor relations, such as disputes involving self-employed craftsmen. ORGANIZATION OF LABOR LAW Brazil's labor law is organized as follows: • The first level of the system is the conciliation and judgment boards. These boards are tripartite, being made up of a professional judge who presides, a representative of management, and a representative of labor. • The regional labor courts constitute the second level of the system and can be divided into panels or sections when the case load so warrants. These courts are

tion mainly for actions involving legal entities under federal public law, and others of special interest to the Nation—except those that fall under the jurisdiction of the labor courts), and the labor courts.

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empowered to hear appeals from the conciliation and judgment boards and have original jurisdiction over collective labor disputes originating in their respective territorial jurisdictions. • The Superior Labor Court is the highest level of the labor law. It is seated in the national capital of Brasilia and is divided into five panels and two sections, one specializing in individual labor disputes and one in collective labor disputes. The Superior Labor Court's area of competence covers: • hearing appeals—that have already gone through the first two levels—through its panels, as an extraordinary remedy in cases of individual labor disputes when the lower-level ruling violates a specific provision of the law or diverges, in principle, from the law as interpreted by another regional court or by its own individual labor dispute section. • hearing appeals of cases originating in the regional courts. • original jurisdiction—to rule on collective labor disputes that exceed the territorial jurisdiction of a regional court. Decisions of the Superior Labor Court may be appealed to the Court itself in special cases, or to the Federal Supreme Court in the rare case of a direct violation of the Constitution. LABOR COURT JUDGES All levels of the labor law system employ both professional judges, who are appointed for life, and lay judges, who represent management and labor and who are appointed for fixed terms. For the conciliation and judgment boards, professional judges are recruited by public competition to become labor-law magistrates. For the regional labor courts, professional judges are recruited mostly from among the judges of the conciliation and judgment boards. Approximately one fifth of the judges are recruited from among attorneys and staff of the Office of the Public Prosecutor for Labor Affairs. The Superior Labor Court has 27 justices, 17 of whom are professional judges, appointed for life and chosen from among judges serving in the labor magistracy, lawyers, and the staff of the Public Prosecutor's Office. Fixed-term lay judges make up the rest of the membership of the conciliation and judgment boards; they account for one third of the members of the regional labor courts, and 10 of the 27 justices on the Superior Labor Court. They are appointed for three-year terms and may be reappointed for one further term. Their level of remuneration is substantial. Once they have completed five years in office and provided they meet the general conditions for retirement (including time in private practice), they may retire at the pay level they attained while they were judges. Their jurisdictional powers are essentially identical to those of the professional judges, and they may also act as rapporteurs and reviewers for the courts.

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Currently there are 24 regional labor courts in Brazil. The 1988 Constitution makes provision for at least one regional labor court in each state. The number of conciliation and judgment boards is growing steadily: 695 are already active, and another 398 have been established by law but have not yet entered into operation. PROCEDURE By virtue of its autonomy, the labor law system has its own procedural legislation, which is based on principles that are specific to this area. Normal procedural legislation serves as a subsidiary source to the extent that it does not contravene the labor law principles. Like substantive labor law, procedural labor law is intended to remedy inequalities between parties—which also exist in procedural matters—and to ensure that justice is accessible, comprehensible, and functional for the worker. This is accomplished by making the process more streamlined, simpler and less costly. Indeed, many of the principles that originally distinguished labor law procedure from normal legal procedure have since been incorporated into the latter, since it is a generally held ideal that justice be inexpensive, simple, and quick. As a result, many of the differences that once existed between normal legal procedure and labor law procedure have disappeared. Nevertheless, there are some distinctive principles of labor law procedure that still persist, even though they are not true principles of doctrine but rather are reflections of a deeper commitment to ensuring quick and effective access to justice, a commitment that is also present in normal legal procedure. Moreover, these principles are more formal than procedural in nature. Some of the distinguishing principles underlying labor law procedure are: • the principle of simplicity, as embodied in the prevalence of oral pleadings, grouping, and immediateness; the lack of special procedures, even for appeals; and the limited admissibility of nullifications on procedural grounds; • the principle of speed, which helps to limit the possibilities for appeals; shorten procedural deadlines, with summons and notifications by mail assumed to have been received 48 hours after they are sent; encourage judges to act on their own initiative in procedural matters; limit exceptions that suspend proceedings, etc.; • the principle of no-cost services: procedural costs are paid for by the losing party after a decision is handed down; and the presence of a lawyer is optional, in acknowledgment of the jus postulandi of the parties; and, • the principle of conciliation, viewed as the best way to settle a dispute whenever possible: the law stipulates that an agreement may be made at any time or at any stage of the process, and the judge should use "all means available" to help the parties reach such an agreement. According to the procedure for individual actions as based on these principles,

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workers are entitled to make claims orally to a clerk who then draws up a written version, and makes a copy. The parties are summoned in writing to appear at a single hearing. Parties must attend the hearing in person (legal entities are represented by an agent); accompaniment by a lawyer is optional. Once the defense has been presented, the judge shall use all available means to bring about a conciliation. If no agreement is reached, the hearing continues to the next stage: the presentation of evidence. At this stage, the parties call any witnesses, but all documents should have already been submitted with the initial complaint during the defense. At this point, another effort must be made to reach an agreement. If no agreement is reached, a decision may be handed down immediately. Ordinary appeals, which may be lodged by simple petition, require the advance deposit of the amount of the judgment up to a specified limit. This does not preclude provisional execution of the judgment up to the amount of the security pledged. The chief judge of a conciliation and judgment board has broad powers to direct the proceedings and is encouraged to intervene actively in them. He should strive to ensure that the process keeps moving and take, on his own initiative, any and all steps he deems necessary in order to discover the truth. He is also responsible for ensuring execution of the final decision. However, these powers do not cover—as occurs in other countries—the power of the judge to include in an employee's claim other claims not originally present but that logically arise from the facts presented. Similarly, the decision may not extend beyond the scope of the specific action nor may its effects be ordered to extend beyond the parties. Collective labor disputes may only be referred to a court if it can be shown that an attempt has already been made to reach an agreement out of court. In principle, rulings by regional labor courts are executable immediately, without prejudice to an appeal before the Superior Labor Court. In the case of strikes, the Office of the Public Prosecutor for Labor Affairs is empowered to hear and rule on labor disputes.

THE ROLE OF LABOR UNIONS Labor unions have been taking on a more important role in the labor law system, by: • acting as party and lawful claimant in collective labor disputes; • providing free legal aid—through their lawyers, and at the request of the interested party or the judge—in simple or multiple individual actions involving union members as well as nonunion members of the same occupational category who lack the resources to retain legal counsel and cover the related costs; and, • appearing as a party—acting as procedural substitute for both union members and nonmembers—to defend individual claims of the principals in such cases and conditions as allowed by law. Legal assistance provided by unions to their members is furnished as a social service that is generally defined in the respective by-laws. When such free assistance is provided to nonunion members of the same

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occupational category who have been declared to be in legal need, it is provided as a public service that is required by law. In this case, if the claimant's petition is granted, the union is reimbursed for the legal fees as part of the judgment. This kind of free legal assistance is unique to the labor justice law. Even though, the Constitution makes provision for assistance to be provided by the public defender's officeâ&#x20AC;&#x201D;a government agency is not part of the labor justice system. The power of unions to act as procedural substitute for employees had been allowed under regular legislation prior to the current Constitution for specific cases and do not require authorization by the substituted parties. An example of this role are cases brought by unions to enforce regulatory decisions and payment of premiums for hazardous or unhealthy working conditions. Subsequent legislation has broadened the role of unions in this report. The 1988 Constitution legally recognizes any kind of association created to represent the individual interests of its members, provided said members have given their authorization. It also charges the unions with "the defense of the collective and individual interests of their respective occupational categories, including legal and administrative matters." This precept has been interpreted by labor unions as an authorization of broad and exclusive power to act as procedural substitutes of the members of the occupational groups represented, independently of any authorization by the members of that group. Accordingly, many collective suits have been brought in the name of all or almost all of the employees of a defendant company when there has been major injury. This is especially true with regard to injury arising from failure to comply with legislation on mandatory wage increases, but in other cases as well (failure to pay overtime, wage adjustments, etc.). This principle, however, has not yet been duly implemented by the respective enabling legislation, and the interpretation that the labor unions have chosen has not been confirmed by jurisprudence. This situation has spawned controversy and diverging decisions even among the panels of the Superior Labor Court. THE PRESENCE OF A LAWYER Another area in which the October 5, 1988 Constitution appears to diverge from the previous system concerns whether parties may appear directly before a judge without legal representation. Given the express provisions contained in labor legislation, this had become a generally accepted practice, although various authors and the Brazilian Bar Association argued strongly against it. The situation is now unclear, however, in light of the supervening constitutional decree that "attorneys are indispensable for the administration of justice" (article 133 of the Constitution). Since then, several decisions have been handed down which consider the parties' special jus postulandi to be extinct in labor law. The presence of a lawyer has been required, and the losing company (and less commonly the losing employee) has been ordered to pay the attorney fees of the winning party. The Superior Labor Court, however, does not feel that article 133 of the

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Constitution makes it mandatory for claims to be lodged through a lawyer. That court has not allowed the ordering of payment of attorney fees, except in cases in which the winning party had received free legal assistance or in cases in which a union had acted as procedural substitute for members of the respective occupational group who had been declared in want of legal need. ASSESSMENT OF THE LABOR JUSTICE SYSTEM IN THE EARLY 1990s As was mentioned earlier, Brazil's labor justice system was designed according to a model that has remained basically intact since its inception. The model assigns functions to the labor justice system that in other countries are attributed either to administrative bodies or are handled under arrangements outside the legal system. The system's basic functions are: • the exercise of its jurisdictional authority (i.e., to settle litigation by applying and interpreting applicable legislation); • conciliation of individual labor disputes, by encouraging and approving agreements which then assume the status of res judicata; and, • arbitration in collective labor conflicts based on financial claims. Arbitration may be on the initiative of one of the parties or the Public Attorney' s Office. The justice system may subject any party to arbitration that might not wish to do so and make awards ("regulatory decisions") that supersede any and all unsuccessful attempts to reach a collective agreement. Conciliation in individual labor disputes has taken on particular importance since the law does not provide adequate protection for individual agreements entered into extrajudicially. This fact is based on the assumption that in such dealings the financially weaker party is not truly free to express its will or able to appreciate the scope of the agreement. Thus, the system restricts the validity of the agreement—even when assistance has been received from a union or administrative authority—to the items specified therein and up to any amounts actually paid. Consequently, not only have no mechanisms been developed within businesses or between unions for settling disputes, but simulated actions are often submitted for judgment so that the parties may obtain court approval of an agreement that they had reached previously. Arbitration in collective disputes also greatly reduces the possibilities for direct negotiation, strikes, or extrajudicial settlement of collective disputes. This is the case since either party may demand that the other submit to compulsory arbitration, or the Public Attorney's Office for Labor Affairs may subject both parties to arbitration, even if both parties prefer not to. Rulings of the labor justice system in this area generally adhere to existing standards. Unfortunately, these standards often do not make sufficient allowance for the unique features of this sector of society, nor do they differentiate within a given economic category among the different situations or financial capacities of large, medium-sized, and small companies.

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The routine exercise of this function, known as its "regulatory power," consumes a great part of the time and working capacity of the labor courts in the reading—even if perfunctory—of case files that can contain hundreds of clauses. Even so, except in the case of a strike, decisions take much longer than they should to be issued. First-level decisions are often handed down after the starting date for the new working conditions and wages, at which point they are applied retroactively. In appeals, rulings are often handed down after the regulatory decision's period of validity has expired. Individual labor-related cases have increased in number recently as a result of economic growth (currently at a standstill), a more complex society, greater union organization, growing awareness by the working class of its rights, and high turnover of labor. These figures reflect at the same time the paramount importance of the labor justice system in Brazil and explain why the system is on the brink of collapse, notwithstanding the unflagging efforts—albeit costly—to expand the number of conciliation and judgment boards and labor courts. In 1990, for example, the boards heard 1,233,410 cases and handed down rulings in 1,053,237 cases (leaving a negative balance of 180,173 cases). The regional courts heard 145,646 cases and ruled on 129,379 (leaving a negative balance of 16,367). The Superior Labor Court heard 20,276 cases and ruled on 20,473 (leaving a positive balance of 197). For 1992, the statistics compiled in connection with this study on the conciliation and judgment boards (CJB) and regional courts (RC) cover only the first six months of the year: Projecti 3d for 1992

First Sbc Months Cases Received

Cases Settled

Cases Received

Cases Settled

CJ B

808,606

642,041

1,617,212

1,284,082

118,378

76,599

236,756

153,198

The statistics for the Superior Labor Court (SLC) as of November 30, 1992 are as follows: Up to November 30, 1992 Cases Received

SL C

25,482

Cases Settled 26,643

Projected for 1992 Cases Received 27,799

Cases Settled 29,065

The estimated increase over the two-year period was 31 percent for cases at the first level, 62 percent for cases at the second level (due perhaps to the increase in the number of regional courts during the period), and 37 percent at the third level. Under the pressure of this extremely heavy case load, and also owing to the

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impact of other factors analyzed herein, the model drawn up for the operation of the labor law system has begun to come apart at the seams. Grouping, oral proceedings and immediacy are sacrificed to a great degree and, at times, become counterproductive; celerity no longer exists; simplicity is, in most cases, merely an illusion; and financial and social costs have burgeoned. Faced with excessively long dockets, the conciliation and judgment boards have turned to separating the hearings—which were initially intended to be single sessions—into a series of sessions. The first session is the initial attempt at conciliation, and includes presentation of the defense, requests for evidence, and the setting of deadlines for commenting on preliminary information, submitting documents, presenting lists of witnesses, etc. Experts are often called in to evaluate evidence, even when this is not necessary, thereby increasing costs and creating delays. The second session is when the parties make their oral statements. In most cases, the second session is scheduled for a date, months (and often more than a year) later. Very rarely is a decision handed down during a hearing: the argued case is left with the judge for an undefined and often long period of time. When a ruling is issued, it is generally unclear and requires a long procedure for settlement and execution. The losing party (particularly when it is the employer) does not hesitate to appeal, even when the chances of overturning the decision are minimal. This tactic is based on the speculation that the prospect of delay in reaching a final outcome will force the employee to accept an agreement, even one that is disadvantageous to him. Further encouragement to appeal is found in the fact that, first, the amount of the advance deposit required for lodging an appeal is generally much less than the amount of the judgment, and second, the penalty interest that would accrue is lower than prevailing interest rates on the financial market. But above all, the excessive work load—which falls almost exclusively on the shoulders of the presiding judge since the functions of the management and labor representatives are basically only symbolic—reduces labor judges to the role of mere bureaucrats and strips them of any initiative to seek out the truth and spirit of social equity that should define the pathos of a labor court judge. In the courtroom, where the management and labor representatives take a more active role—at times as rapporteurs or reviewers—dealing with, at times, complex points of law, issuing preliminary orders, etc., the quality and authority of judgments suffer. Lacking specific training for such tasks, they surround themselves with technical advisors who make up a veritable "parallel magistrature," and often pronounce judgments with which a professional judge with a lifetime appointment would be more able and better prepared to deal. Once the final decision has been entered, the entire process starts over again for the settlement and execution of the judgment. Given the instability of Brazil's economy, it is not uncommon that when the time comes to pay, the losing company has gone bankrupt or is no longer in business. The average duration of a simple case in which there has been no conciliation is around five years in Brazil's major cities. Against such a backdrop, the phrase "So, take me to court!" has unfortunately become a taunting threat made by unprincipled employers reminding workers of the delays, frustration, and uncertainties that would await them.

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The crisis in the labor justice system is being taken up on two fronts. First, investments have been stepped up to increase the number of conciliation and judgment boards and regional courts, as well as the number of judges in those courts. Second, efforts are underway to reform procedural legislation for labor matters in order to, among other things, reduce the possibilities for appeals, broaden the provisional execution of decisions before final entry, increase the amount of deposits required for lodging appeals, and simplify the process of settlement and execution. The obvious benefit, not to say the urgency, of such measures should not overshadow the need for more sweeping changes and a reassessment of the very foundations of the labor law system. A system that has been left basically untouched since it was outlined and put in place in the late 1930s and early 1940s. This fact is especially disturbing given the fact that the ideological framework and societal makeup of that period differ radically from today's. Back then, Brazil's economy was basically agrarian, industry was in a nascent stage, and the service sector was still relatively undeveloped. Society was much less complex. The working class, which in the 1920s had protested and joined anarchist movements in the country's major cities, experienced a period of free unionism that continued up through the early 1930s. Even so, these unions were not very tightly knit; they were limited basically to traditional industries (textiles, footwear, garments, etc.), and characterized by a strong stance of confrontation with the state. With the 1930s came the corporatist dictatorship of Getulio Vargas, based on a model patterned after Italian fascism. Vargas's political and social ideology, as embodied in the Constitution of 1937, was to negate class struggle by encapsulating society within the state apparatus through rigid organization and structuring of social forces within the state organization. This way, public authority and force could be used to keep any social conflicts from surfacing, thereby replacing society's internal dynamics with solutions imposed by the government for the sake of the "greater interests of the nation." This ideological matrix served to simultaneously shape and integrate an internally coherent system made up of: (a) the Brazilian model of labor organization, which allowed a single union for each economic and occupational category, subject to prior authorization and constant control by the Ministry of Labor, which provided public funding and delegated public functions to the unions; (b) substantive labor law, with careful protection of individual employment contracts, but lacking any guarantee for—or even outrightly banning—the organization of labor at the company-level, free unionism, the right to strike, etc.; and (c) the labor justice system, which had originally been conceived as an administrative function, but had now become an instrument for pursuing the aforementioned policies. The system developed as representatives of the "official" unions slowly replaced the former free unions, sometimes violently—despite the benefits offered to co-opt labor leaders. The hypertrophied original design of the labor law system was in line, then, with the hypertrophy of the state of which it was a part. Nothing was settled or resolved outside the state's purview or by the free play of social forces working to achieve independent organizations or settlements. All labor disputes, be they individual or

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collective, legal or financial, had to be referred to the labor justice system so that a government representative—or any individual vested with the powers to act as judge—could reconcile, arbitrate, or issue rulings that were in keeping with the general standardized guidelines dictated by the state. With the return of democracy following the second world war and the promulgation of the Constitution of 1946, the labor law system shed its administrative role and became part of the national judiciary. However, this process—which political scientists have termed "democratization from above"—was not accompanied by any significant change in the structure or bases of the labor law system save the guarantees which the judicature provided to the judges. The period from the 1950s to the 1970s witnessed a countrywide boom in industrial development, which produced a drastic change in the country's economic profile. The establishment of basic and hightech industries gave a leading role to industry and the service sectors. This fanned the growth of the working class as well as their level of skill and awareness. The net result was a new and more authentic brand of unionism in the major industrial centers (mainly Sao Paulo in the late 1970s), the repercussions of which were felt across the country. The continued presence of authoritarianism in the political system instituted by the military dictatorship in 1964 prevented these new social forces from finding a suitable institutional niche in which they could freely organize, express, and reconcile their interests. Consequently, there were frequent confrontations with the prevailing institutions of the time, including the labor justice system, especially with regard to the resolution of collective labor disputes. With the beginning of the process of redemocratization in the mid-1980s, these new forces expanded at both the union level (formation of national unions) and the political level (creation of the Workers' Party), with a concomitant change in the attitude of the country's main industrial leaders. The Constitution adopted on October 5,1988, was the institutional crown of the redemocratization process. This is borne out in the Constitution's recognition of autonomous organizations in society and, in the area of social and labor organization, characterized by the powers granted to unions and to the organization of labor. For example, the freedom of union organization is ensured independently of prior authorization from the government; the autonomy of collective determinations is recognized, as shown through collective agreements and accords that were previously not allowed—even for streamlining general legislation on labor matters or reducing wages; the autonomous organization of labor within companies was recognized along with the election of representatives; and union participation was made an indispensable element of collective bargaining. In other words, the new constitution, which is open to diverging interpretations, has been construed as giving unions the power to defend—in and out of court—members of the occupational groups they represent. On the other hand, however, there were no substantial changes in the organization and functions of the labor law system. In fact, the management and labor representatives were given a stronger presence in the bodies of the labor law system, a legacy from the corporatist period. The challenge for the 1990s will be to update the model of the labor system, which was organized in the 1940s for a 1940s society and based on the totalitarian ideas of the time. It needs to be adapted to a new society, one that

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is pluralist, democratic, and complex, a society that aspires to modernization, a society that has highly developed industrial and service sectors complete with large, mediumsized, and small businesses, regional imbalances, free unionism that is experiencing strong growth, and national-level organizations that have established their presence within companies in order to mobilize and organize employees. Despite the opposition of corporatist enclaves, the guiding principle for this task would appear to be the creation of possibilities for alternative, extrajudicial avenues for settling individual and collective disputes. A framework needs to be promoted and guaranteed for conciliation and arbitration outside the legal system, between companies, and even within unions. This framework should be flexible and able to respond swiftly to the specifics of the dispute. This will permit the system to counteract the hypertrophy of the labor law system and relieve itself of the excessive case load in order to make itself faster and more technical in the exercise of its true function of interpreting and enforcing the law. This streamlining becomes necessary when all other mechanisms fail. With this principle in mind, the following section will present a brief analysis of a few features of the current system. CONCILIATION AND ARBITRATION IN INDIVIDUAL LABOR DISPUTES A study by the International Labor Organization (ILO) pointed out that "conciliation by the internal bodies of a company proved to be capable of producing quite satisfactory results. The main advantages lie in that the conciliatory bodies are knowledgeable in the specifics of the respective labor sector and—since their competence is limited to the internal sphere of the company—they are not obstructed with information on widely diverging matters and can, therefore, make a serious effort to achieve conciliation, which is not reduced to a mere formality as sometimes occurs when the procedure is carried out by some other type of body." ILO Recommendation 94 proposes the creation, inside a company, of a consultative body between labor and management. Article 11 of the present Constitution, for which implementing legislation has not yet been promulgated, provides for the election of representatives to communicate directly with labor in companies with more than 200 employees. In line with these indications, legislation should allow for agreements to be mediated by joint committees or union representatives so as to protect individual employees from employer pressure, ensuring at the same time the authority of any agreements reached and summary executive powers to enforce compliance in the case of nonobservance. Recourse to such extrajudicial conciliation could be specified in detail in collective agreements, although such conciliation should not be made a prerequisite for bringing action in a court of law in the event conciliation is not reached. This would only unnecessarily encumber the overall process. Nor would it exclude the possibility of conciliation before a judge. Such formats would merely make rapid and efficient means of dispute resolution available to the parties by enabling and encouraging them to seek out-of-court solutions and giving them a legal guarantee—which does not exist currently—as to the effectiveness of any solution reached.

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Another format for settling individual labor disputes that could be used more extensively is arbitration, a procedure long used in civil matters by mutual agreement of the parties. Arbitration has been virtually unused in labor disputes. This arises from the view that labor rights are unrelinquishable and nonnegotiable and, the cost of paying an arbiter and the difficulty of finding an arbiter acceptable to both parties. By legislating in favor of arbitration for labor disputes and simplifying the formalities imposed on arbitration boards, the state's function here should be to maintain a group of qualified arbiters who would be available to the parties (in which case the arbitrating magistrate would be charged with distributing the case load) or authorize judges to act as arbiters, regardless of the status of the case. SETTLEMENT OF COLLECTIVE DISPUTES BASED ON FINANCIAL CLAIMS The power of the labor law system to arbitrate in collective disputes arising from financial claims and to define new working conditions and wages by "regulatory decisions" (which supersede any and all unsuccessful attempts to reach collective agreements) has been criticizedâ&#x20AC;&#x201D;and rightly soâ&#x20AC;&#x201D;by proponents of arbitration and has been rejected by the major unions. At issue is the process of compulsory arbitration that is invoked when the parties are not able to reach an agreement on their own. It can be invoked by either party as soon as any attempt (even if only token) has been made to reach an agreement. This process virtually does away with any possibility of collective bargaining, since the power to settle the dispute is then vested in the court, which will follow general guidelines that are well known in advance and unrelated to the specifics of the case. As can be seen in the Constitution of 1937, which created the labor law system and made strikes illegal (article 139), this process was originally intended to offer a substitute for strikes by imposing government arbitration as a negation of class struggle. The democratic constitution of 1946 maintained this power, but granted the right to strike, thereby creating a hard-to-reconcile contradiction that was resolved at the time through enabling legislation that, under the guise of regulating strikes, in effect actually prevented them. Even now, with the right to strike effectively ensured by law, it is difficult to understand how that right can be exercised when dispute resolution is placed under court arbitration (which in theory is immune to strike pressures) rather than the power of the employer. Indeed, the threat of a strike will often result in collective disputes being processed rapidly; and once a decision is handed down by the court, they become illegal (although they sometimes continue even after authorization has been withdrawn by the courts). This is why it is sometimes said that strikes can only exist to speed up the settlement of a collective dispute. Furthermore, arbitration in collective disputes that focus on how the results of this social activity are to be redistributed has a political facet that sets this area apart from other issues on which a judge would be better prepared to make decisions.

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Defenders of the regulatory power of the labor law system as it currently standsâ&#x20AC;&#x201D; and they are both numerous and well-knownâ&#x20AC;&#x201D;maintain that there is a need for this power mainly in the occupational groups that are the least organized and that do not have the power base to apply pressure to secure basic benefits that are obtained by other categories through direct negotiations. This argument may have been valid at a time when union organization was very restricted and national-level unions were not permitted, and when union representation was controlled by the Ministry of Labor rather than by the employees, in other words, within the corporatist system that spawned such regulatory power. Now, however, it runs counter to the natural dynamics of the free union movement that organizes and comes together at different levels and in the most efficient way possible, under the leadership of its most representative sectors. In essence, what this argument does is attempt to ensure the same procedural capacity for both the "true" unions as well as the "rubber stamp" unions, which were often created as the result of bureaucratic dealings to further the personal interests of insincere leaders. Doing so would sustain the artificial existence of these leaders and thereby prove that the regulatory power is an obstacle not only to direct negotiations but also to stronger and more legitimate union organization. The challenge here is to foster and allow societal dynamics to set up a network of integrated and interrelated collective negotiations and agreements, from the national level all the way down to the company level. The agreements will range from those responsible for setting general guidelines to those that respond to the specific needs and possibilities of a given company's situation, with greater value being given to specific over general aspects. Part of this challenge would be the need to streamline the existing rigid legislation governing public order. The state would also need to encourage voluntary arbitration, either by making experienced arbiters available to the parties or through other methods. The public authority would intervene only in cases of strikes in strategic activities, long-lasting strikes, or those that would be liable to otherwise affect the basic interests of society or the integrity of the company. THE PROPOSED ROLE OF MANAGEMENT AND LABOR REPRESENTATIVES IN BODIES OF THE LABOR LAW SYSTEM The presence of management and labor representatives on conciliation and judgment boards and on the bench has been the object of severe criticism, particularly considering the substantial pay levels (borne by government coffers) and the right to retire as judges after only five years of service. The cost-benefit ratio weighs heavily against such a structure, and the selection process ends up being a highly disputed matter of personal benefit totally divorced from any criteria of true representativeness. To give an idea of the cost involved, one has only to look at the number of retired fixed-term judges from these two groups in the 10 years since the law went into effect: it is over four times the number of lifetime judges who retired in the entire 50 years since the labor law system was instituted. At the theoretical level, the impartiality required of a judge is hardly consistent

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with these individuals' position as representative of one of the groups in conflict, a fact further compounded by their lack of the technical knowledge required for deciding on questions of law. Experience has shown that the conciliatory process of the conciliation and judgment boards benefits most from management and labor representatives when they act as lay advisers to the judge assigned jurisdiction for this area, a structure that would require updating the current system. Their presence in the courts, where conciliatory activity is virtually nonexistent (except in collective disputes), does not seem to be justified, especially in the Superior Labor Court, whose competence is limited to theoretical questions of law. Unions can and should play a greater role in the settlement of labor disputes in order to improve the effectiveness and legitimacy. However, this should take place through the formats described above, not by converting union representatives into temporary government employees. THE PROPOSED ROLE OF UNIONS The participation of unions in the proposed model for labor dispute resolution would be important not only in extrajudicial arrangements for the conciliation and arbitration of individual or collective disputes, but also in court as well. Unions can assist court proceedings by: providing legal assistance, participating in individual actions that are of collective interest, and acknowledging and expanding their legitimacy to act as procedural substitutes (through appropriate enabling legislation for article 8, III, of the Constitution.) The power to appear as procedural substitutes is particularly suited to the nature of labor law when viewed as a class right. This makes it possible for major injuries to be examined and evaluated fully rather than trivializing them by dividing them up into several individual actions, a process that also overloads the judiciary and shrouds their true social impact of decisions. Enabling unions to act as procedural substitutes for members of an entire occupational category would also greatly enhance the real guarantee of access to justice. The obstacles that lie between workers and effective access to justice are many and varied. They include the fear of employer retaliation through dismissal (with the result that the only individuals who approach the labor law system are those who have already been terminated); employees not knowing their rights or that an individual interest can be presented as a legal claim; economic, cultural, and psychological limitations of individual workers—as potential litigants—that keep them from seeking legal counsel or legal services; difficulty of access to evidence since their professional life transpires within the company, which is also the entity that keeps all the records. Furthermore, employers normally have considerable experience as litigants in this area. Often they have their own legal department or have retained specialized services, with the resulting greater ability to produce evidence. For them, the amounts at stake in individual labor disputes are relatively insignificant; as a result, they have no problem adopting time-consuming tactics or taking the time necessary to examine the grievance fully. Allowing unions—who have their own, equally specialized legal

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resources—to act as procedural substitutes for members of the respective occupational category in claiming individual rights would greatly offset the inequalities described above. Giving unions this power should not be seen as a substitute for the necessary legislation, since it would still be necessary to accommodate this power to workers' guarantees with regard to the timeliness and advisability of bringing actions and selecting sponsorship, for example, by providing advance notification to the substituted parties and allowing them to expressly decline any such representation. Legislation is also necessary in order not to obstruct the company' s right to properly defend itself. This requires therefore that a complete list be submitted of the names and positions of the substituted parties and limiting special union powers to claims alleging major injuries that uniformly affect a group of persons independently of any individual claims that might exist as well. THE ROLE OF LAWYERS Viewed as a means of facilitating access to the judiciary by reducing the costs and simplifying the procedures involved, the right of parties to appear in court unassisted by an attorney has created—contrary to what might have been expected—an obstacle to workers' access to justice. This in turn, places them at a disadvantage in relation to the opposing party, which almost always has the benefit of specialized technical assistance or representation by a lawyer. Since the presence of a lawyer is not required by law, judgments do not include any allowance for attorney fees. So, if a worker does retain a lawyer, any judgment in his favor will be reduced by the amount of the respective attorney fees. The best solution would be to ensure legal assistance for both parties, to be provided free of charge to workers and small businessmen. If a ruling is made against a company, then it should be ordered to pay the attorney fees. Bearing in mind the principles specific to procedural labor law, workers who lose a claim would not be ordered to pay such fees if they received assistance because they were declared to be in want of legal assistance. Payment by workers would be restricted to cases involving unreasonable or unfounded claims. In all other cases, the expenses incurred by companies, since they are habitual litigants, would be considered as a risk inherent in their economic activity. Under such a system, judges could desist from their unbefitting paternalism visa-vis workers who receive assistance. Effective access to justice and a more precise judiciary would also be better ensured. Similarly, the creation of extrajudicial arrangements for conciliation and arbitration, without the involvement of lawyers, would continue to afford parties other, less formal options. CONCLUSION This paper has discussed some of the main areas in which the structure of Brazil's labor justice system continues to display a strong presence of the outdated corporatist ideas that marked its origins. Mention needs to be made, as well, of the important

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modifications that have already been introduced in the labor process, such as the punishment of bad faith litigants, fines to discourage appeals whose sole purpose is to delay the process, and so on. Since Brazil's labor justice system comprises an integrated system together with the country's individual and collective substantive labor law, it would be unrealistic to expect that the response to the challenge of modernizing the justice system could undertake the necessary updating of substantive labor law at the same time and with the same mentality.

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JUSTICE AND THE INTERNATIONALIZATION OF LAW

PARTY

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International Dimensions of Justice

Hector Gros Espiell Former Minister of External Affairs, Ambassador of the Republica Oriental del Uruguay to France

I was most gratified to see the topic of the international dimensions of justice included in the program for this seminar. In today's world it would be unthinkable to examine the question of justice in its multiple facets without addressing the very evident trend toward globalization of both the law and its application and, consequently, of justice. To date, there has been no thorough study of this process or of the separate elements it encompasses. The time has come to take up this task. In order to situate this issue within the general framework of this seminar, it is essential that we understand from the start what we are referring to when we use the word "justice" in this forum. I think the word as we use it in this seminar has a dual meaning, which is reflected both in the Dictionary of the Royal Academy and in more specialized legal dictionaries. In the Dictionary of the Royal Academy, justice is first defined as "that virtue that gives to each his due," and in eighth and ninth place it is defined as "court for the administration of justice" and "the judiciary." In the legal glossary of Eduardo J. Couture, eminent international jurist and a professor of mine in years past, we find a more technically rigorous definition, with an ethical dimension ("that virtue consisting of the constant disposition to render every man his due"), an administrative dimension ("branch of government whose chief purpose is the exercise of jurisdiction"), and a functional dimension ("jurisdictional function, act and effect of exercising jurisdiction"). In my remarks today on the global dimension of law and justice, I will use the word "justice" the dual meaning of judicial organization and jurisdictional function. The object of this presentation and, I believe, of the seminar generally is to examine how jurisdiction is to be exercised in the 1990s, as we approach the third millennium. To which bodies, for instance, will this task fall? What procedures will they follow to ensure that judicial systems can meet the challenges of the real world while making sure that justice, within national borders and in the global arena will be genuine, objective, nondiscriminatory, independent, technically and juridically sound, swift, and effective? To look at this issue from an international perspective and clearly understand the

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increasingly global nature of justice and politics, we must examine two separate elements: on the one hand, the application of international law by national courts, and on the other, the justice being dispensed by international courts that are in operation today and those that we can reasonably expect to come into being in the years ahead. • What we refer to as the "globalization of justice" is a phenomenon (which must be included in any analysis of justice today) with many different roots, five of which I will touch on here today. • To begin with, international law is now making itself felt more and more strongly within national legal orders. This very pronounced trend is coloring judicial affairs and politics in every country as classic international law gives way to more contemporary models. In the past, the central focus of international law was the regulation of nations in peace and war. With very rare exceptions, international rules of law were not intended to be applied within the borders of individual nations. This is simply no longer the case. Today a very high proportion of international conventions deal with matters that will by definition entail the application of international law in national courts. Think, for instance, of international humanrights conventions and treaties, new approaches for dealing with international criminal activity, and the body of rules governing economic integration processes. I shall speak in a moment of Latin American jurisprudence and legal doctrine in association with this first root cause of the growing global dimension of justice. • A second factor in the globalization of justice is economic integration movements and their judicial repercussions. I shall come back to this topic later as well. • International human-rights initiatives, and their political and juridical ramifications, are a third element driving the globalization of justice. International law on human rights has done a great deal—perhaps more than any other single area—to change the face of the international legal order. Among the areas of the national law that have been profoundly affected by international human-rights agreements are personality in international law, treaty law, international responsibility, and national sovereignty. International law, as it was known in the past, has been radically transformed. The evolution of human-rights safeguards, notably in the form of jurisdictional protection of human rights through international courts and tribunals, is central to an understanding of this increasingly global view of justice. • A fourth factor that is reshaping the international legal order is new forms or definitions of crime and international and judicial responses to them. The rebirth of the idea of international criminal activity and international criminal law, with the concept of offenses against peace and security, the international dimensions of terrorism, drug trafficking, and now environmental crime, are further ingredients of the phenomenon of the globalization of justice. • The fifth and final causal element to which I will refer here concerns the harmonization of laws. The move to align national legislation based on regional or universal principles or criteria is today in evidence everywhere. The texts being proposed as models for country legislation, the harmonization of criminal and civil codes and codes of procedure, and the body of common or uniform substantive law—or at least of national legal texts grounded in comparable international principles being developed are inexorably imbuing domestic justice with international characteristics.

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It is important to understand, at this point in the examination of the new global face of justice, the current dividing line between domestic and international jurisdiction. Since the celebrated 1923 advisory opinion of the International Court of Justice, international legal doctrine has affirmed that there is no absolute, immovable line separating domestic from international jurisdiction; instead, the line shifts as the law evolves. When a subject-matter traditionally reserved to domestic jurisdiction becomes regulated by international law, the line moves, the scope of international jurisdiction broadens, and gray areas lying between national and international jurisdiction are created. Eventually these gray areas become the province of international law alone. In tandem with this gradual process, the interpretation of Article 2, paragraph 7, of the United Nations Charter has been evolving as well. It is most illuminating in this regard to examine the judgements and advisory opinions of the International Court of Justice. Human-rights issues, to cite but a single example, were traditionally matters left to the jurisdiction of individual states. This tradition lasted well into our own time—up until the 1950s. Today, in the jurisprudence of the International Court of Justice, such an approach is held to be absurd from a juridical standpoint and defunct from a political one, and as such simply untenable. The matter of human rights now clearly straddles domestic and international jurisdictions. Inevitably, as changes have come about in the idea of reserved domain and international jurisdiction, the concept of national sovereignty has begun to evolve as well. "Sovereignty" no longer denotes the absolute, irreversible, unlimited power of a state to act beyond the confines of the law; it is now interwired with the concepts of competence and attributions. The state is sovereign to the extent that the power of the state is properly exercised within the framework of domestic and international law. This leads us to our first tentative approach to the question of the globalization of justice, that is, through the acts of each country's justice system. In other words, the application of international law by national courts. As I noted in my opening remarks, this is an important issue now and can only become more important in the years ahead. The idea that the acts and decisions of judges in a given country may be grounded strictly in the nation's own laws and codes is no longer tenable. A judge who is not familiar with principles of international law and who does not apply them will not be a good judge. This is true because international law is a critically important topic. Modern treaties on humanitarian law, human rights, and economic integration, among other areas, are prime examples of contexts in which international rules must be applied within national boundaries. The European Court of Human Rights and the Inter-American Court of Human Rights—the latter in its historic Advisory Finding 2—underscored this essential feature of modern human-rights treaties, which call for national judiciaries to implement international treaties in this sphere. This opens the door to a highly complex set of issues, which can be addressed from two perspectives: first, the relation between international and domestic law, and second, the hierarchy of ratified international treaties in force within national legal systems. I can do no more than touch upon these questions here today. In examining the first element, the relation of international to domestic law, I will defer to some other venue for a discussion of doctrine or theory of such important core questions

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as the practical and political considerations inherent in the monistic and dualistic schools and confine myself to the issue of the application of international law by national courts. In Latin American doctrine, jurisprudence, practice, international law—and specifically conventional international law, derived from treaties in force— is directly applied by national courts of justice. This means that government authorities—in the broad sense of the term, and not merely as a synonym of the executive branch—and judges in particular, must apply current international law directly and without hesitation, where possible, without the need for later legislative acts, which should follow from parliamentary approval and ratification, whereupon the international norm would take effect if international law requirements have been satisfied. The approach adopted in Latin America is not universally accepted in comparative law. It is not followed in the British legal system, for instance, or in most of the English-speaking Caribbean nations. But from the standpoint of making progress in the area of judicial systems, it is the most appropriate, most forward-looking, and most effective avenue. As international laws come to be applied within individual state borders, the global approach to justice will also have more powerful and more immediate effects. I noted earlier that judges today must understand that much of their work will entail the application of international laws in their own jurisdictions. Members of the judiciary who are unaware of the international law applicable to cases brought before them are ignorant of an essential part of the law that they are being called upon to administer, and the justice they dispense cannot be genuine justice. The positive law enshrined in domestic legislation is now only part of a larger picture. More and more frequently, judges are invoking international law in the cases they hear and the decisions they hand down. There can be no more tangible proof of the international contours being adopted by individual national systems. The second element to which I made reference is the hierarchy of international treaties vis-a-vis domestic law. Many different approaches have been espoused in Latin America, in terms of the application of international law generally and international human-rights norms in particular. In some systems, a ratified treaty in force takes precedence over the national constitution; in others it ranks below the constitution but above domestic law; and in still others, it ranks pari passu with the law of the forum. I have published a number of writings on this subject in recent years and will touch upon it very briefly here. I could perhaps sum up the situation in Latin America by saying that, above and beyond the differing constitutional approaches to the ranking of ratified international treaties vis-a-vis a nation's own body of laws, the trend, as evinced in the constitutions of nations like Peru, Guatemala, Nicaragua, Brazil, and Chile, is to draw a distinction for such purposes between international treaties generally and human-rights treaties specifically, or the laws born of such treaties. I should like to draw your attention to two recent rulings of the Supreme Court of Argentina, which give ratified international treaties in force precedence over municipal law. These are superbly written decisions, juridically precise and rigorously reasoned, which denote a shift away from traditional jurisprudence and a new approach based on the application of international law and of the Vienna Convention

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on the Law of Treaties. In my view they warrant far more attention outside Argentina than they have received to date. Conversely, in my own country, which has not settled this question under constitutional law, legal doctrine and jurisprudence continue to confer equal juridical status to ratified treaties in force and the national legal order. The other important class of international norms that a country's judiciary may be called upon to apply in local courts is supranational law, a body of rules developed for a community established in the wake of economic integration. Such supranational or community law is applied by the judiciaries of European Community member states in their European courts, with the supranational courts and tribunals as a backstop. The EEC Court of Justice in Luxembourg, for instance, has moved from the mere settlement of disputes between member states to overseeing the application of supranational law and its enforcement in national courts. The Tribunal of the Cartagena Agreement shares this feature. Both of these forums have had to deal with the fascinating and important issue of prejudicial interpretation of supranational law. A final area that I should like to address concerns the application of international law by international courts of justice. I would remark here on five points: • First, the area of international disputes between states. Arbitration is enjoying a renaissance today in Latin America, and Latin American arbitrators are highly sought. One very interesting example that I would have liked to have spoken about at length is the ongoing Laguna del Desierto case involving Argentina and Chile. • Second, the importance of the International Court of Justice, in its dual capacity to hear disputes and deliver advisory opinions. Again, were it not for time constraints, I would have wished to comment on the significance of that international forum — and particularly what it can come to signify for Latin America. One decision of the International Court of Justice that deserves special attention is that handed down on September 11, 1992, in the matter of the border dispute between Honduras and El Salvador, in which Nicaragua also is a party following the approval of its bid to intervene (finding of September 13, 1992). While the advisory opinions of the International Court of Justice are not rulings with res judicata force, they nonetheless carry great weight. Last year, Latin America petitioned the United Nations General Assembly for an opinion on an essential issue relating to the application of some fundamental principles of public international law by courts of justice. The future of the process that we are referring to as the globalization of justice, insofar as the development of an international legal order and international justice are concerned, will hinge to a large extent on the International Court of Justice, which is defined in the United Nations Charter as the "principal judicial organ" of that world body. I would be remiss here if I did not make special mention of the idea for an InterAmerican International Court of Justice that is being examined in the InterAmerican Judicial Committee. Professor Jorge R. Vanossi has just completed a very valuable study on this subject. Any serious attempt to address this question must build on the pioneering work of the 1907 Central American Court of Justice, which was an admirable initiative in many ways.

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• Third, the position of the international courts in the area of human rights. The field of international justice today cannot be understood without an awareness of how international tribunals, and particularly the Inter-American Court of Human Rights, are applying human-rights laws. That inter-American forum is a source of pride for the entire continent. Its far-reaching impact in the realm of justice administration, for the work it has accomplished to date and its contribution to the protection of human rights under international law, places it on a par with the European Court of Human Rights. • Fourth, the application of international administrative law by international administrative tribunals. This area, too, warrants far more detailed discussion than I shall have time for today. Activity in the area of international administrative law is a further manifestation of the increasingly global dimension of the law. It has developed apace with the growth in intergovernmental organizations. Some forums of particular note are the administrative tribunals of the United Nations, the International Labour Organisation, the Organization of American States, the InterAmerican Development Bank, and the World Bank, as well as the new LAIA Administrative Tribunal, established in the wake of a historic Supreme Court ruling in Uruguay. The operation of such tribunals is another key piece in the new international direction of administrative justice. • Fifth, the international courts with jurisdiction in integration matters, to which I alluded earlier. The future lies in the continuation of this process of globalization of justice, which will pick up speed in the years to come. For one thing, we shall almost certainly see the development of international criminal law, and conceivably the establishment of international criminal courts, to deal not only with offenses against peace and security but also new crimes that have particularly strong international effects. The United Nations International Law Commission has recently put forward a proposal in this regard. To deal effectively with certain unlawful activities such as terrorism, drug trafficking, and environmental crime, a careful balance will need to be struck between the territorial jurisdiction of individual states in which the crimes are perpetrated and international formulas to safeguard the interests of the international community, the interests of humanity at large. I sincerely regret that time constraints have allowed me to bring before you at best a sketch or list of what is encompassed in the idea of globalization of the law. I hope that this broad overview will open the way for a more in-depth examination of these questions. I will end by saying that this seminar marks the first ever opportunity for a systematic look at the new global face of justice, which is one of the cardinal issues of our time. It is my hope that in future forums of this nature the IDB and interested governments will continue to shed light on these questions and examine them in much greater detail than I have been able to do today.

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Creation of a Supranational System of Justice in Latin America

Antonio Boggiano Minister of the Supreme Court of Justice of the Argentine Nation and Professor of Private International Law at the University of Buenos Aires

TOWARD DEVELOPMENT OF REALISTIC AND PROGRESSIVE JUDICIAL INTEGRATION The purpose of this paper for the seminar is to propose a realistic system for relatively immediate application of judicial integration. This system is also progressive in that it envisions subsequent stages of development toward situations of greater supranational intensity. The proposed system seeks to avoid both the impossible dream of expecting a supranational court by tomorrow and also the skepticism that asserts that there is no possibility of immediate progress. It can therefore be considered realistic and progressive. However, the system is a model that will necessarily need adjustments. And the first adjustments will certainly result from the discussions in this seminar. It must accordingly be viewed as a system in the process of development. The system has its roots or foundations in the principle of reasonableness of contacts, which is derived from both public and private international law. THE PRINCIPLE OF REASONABLENESS OF CONTACTS IN PUBLIC AND IN PRIVATE INTERNATIONAL LAW The Obligation to Have a System of Private International Law As a general principle, it seems probable that public international law imposes on States the obligation to have a system of private international law so that they do not totally exclude the application of foreign law in their territories. It is true that this is only a general principle that points to a certain general direction to be followed by States. It is not, and could not be, a precise rule with specific legal consequences. It

Chapter 14

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does not specify which rules concerning conflicts of laws or other rules of private international law should be adopted by States. It does not indicate any precise position regarding the law governing the person and rights of the individual. However, as Lipstein puts it: "It merely reflects obedience to the general principles of Public International Law that requires the observation of minimum standards of justice and abstention from illegal discrimination."1 Thus we recognize the existence of minimum standards of justice that should be observed. In addition, States are to abstain from illegal discrimination. The doctrine of legislative jurisdiction in public international law is related to the doctrine and legislative jurisdiction of the rules of private international law.2 The public international law principle of proximity or closeness of contact limits the scope of private international laws by mandating that a choice be made. Mann maintains that a State that prohibits application of any other law than its own would be committing an unlawful international act. The principle is, therefore, hopefully, one that is generally accepted on the grounds of the teachings of Martin Wolff since 1933. The Limiting Role of Public International Law Public international law plays a limiting role with respect to private international law. The principles derived from treaties that constitute common international law on human rights perform this function. An example of this is the prohibition of genderbased discrimination.3 Limitations of this type are also imposed with regard to the judicial jurisdiction of States and not just their legislative jurisdiction. In both cases, the restrictive principle of public international law requires a reasonable contact,4 a minimum standard of justice.5 A principle of this sort evolves, according to Mann, from the totality of the sources on which Article 38 of the Statute of the International Court of Justice is based. Treaties, the universal practice of States and substantial academic support all validate this principle. However, the principle of minimum or reasonable contact raises a number of questions. One of them being its connecting force. Another being its sphere or scope. The two are linked. Let us examine what is meant or can reasonably be meant when it is asserted that public international law imposes, in a flexible and nonspecific fashion, a certain system of international law that prevents exclusive application of the lexfori to all cases, whatever their connection to foreign law. 1

Lipstein, K., "The General Principles of Private International Law." Recueil des Cours, 1972: 135(1), 169. 2 Mann, "The Doctrine of International Jurisdiction in International Law," Recueil des Cours, 1.111 (1964-1), p. 9; see also the same author "The Doctrine of International Jurisdiction Revisited After Twenty Years," Recueil des Cours, t. 186 (1984-III), p. 13 and the literature cited there. See further on this subject the course of Lipstein cited in the text. 3 Mann, F. A., Recueil des Cours, t. 186 (1984-1), p. 32. 4 Mann, ibid. 5 Lipstein, Recueil des Cours, t. 135 (1972-1), p. 170

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In multinational cases, States must establish when their lexfori will be applied and when a foreign law will be applied. It follows from this that States must not always apply their lexforidfas a closed system. However, the question must be asked whether the principle entails applying a foreign law under the same circumstances as the lex fori. Specifically, if domicile determines the law applicable to the status of a person domiciled in a State that applies its lexfori for the purpose, the same State must also apply a foreign country's law when the person is domiciled in another country. Apparently giving preference to the lexforill jgdoes not contradict the principle, if th circumstances under which the law of a foreign State would be applied are established. However, it does not seem consistent with this principle to resort to the application of the lexforiff whenever there is a lacuna in the private international legal system. In the event of a lacuna, the law that is to be applied to the question must be selected in a reasonable manner. The reasonable contact must prevail over the connection with the lex fori. In cases of a lacuna, the law applicable to multinational private-law questions must be chosen on a basis in accordance with reason. This reasonable choice appears to be imposed by the general principle of public international law on legislative jurisdiction which requires respect for a reasonable contact and observance of a minimum standard of justice. Discrimination can also affect the principle of reasonable connection. Viewed in this light it seems discriminatory to apply the law of the domicile to a foreigner domiciled in the country, while making a national domiciled in another country subject to the same law. Moreover, public international law imposes, in accordance with specific rules, precise criteria that have direct repercussions in private international law. Outside of the principle that prohibits denial of justice, the American Human Rights Convention specifies that everyone is entitled to a nationality, and is specifically entitled to the nationality of the State in which he was born if he is not entitled to any other, and may not be arbitrarily deprived of his nationality or the right to change it (Article 20). The same convention lays down criteria governing the right to private property (Article 21), movement and residence (Article 22), and judicial protection (Article 25). Reasonableness and Proximity These principles, criteria or rules call for a positive response to the question of how to integrate the system of private international law. It is not sufficient to resort systematically to the lexfori in the absence or silence of rules of private international law. On the contrary, the courts must integrate the system by making analogies and using the general principles of private international law. These general principles, among which the principle of international harmony of decisions assumes a fundamental value, constitute what can be termed a natural law inherent in the positive private international law of the different countries. However, such principles can also be viewed from the public international law standpoint. It follows then that if the general principles of public international law and the general practice of States require a reasonable contact of the law with the case, then this contact must be taken into account

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in order to permit the international harmony of the decisions and the reasonable expectations of the parties. Or to put it another way, the principles of international private law coincide with the principle of public international law regarding legislative jurisdiction, namely reasonableness of contact. The reasonableness of contact is linked with the proximity of contact and the idea of sufficient or minimum contact. It is of course true that precise rules governing conflict of laws or any other types of rules in positive private international law do not necessarily flow from these principles. This would require these general principles to be incorporated into positive law in order to generate relatively precise rules, since, with regard to the phenomenon of the "open texture of legislative language" (Hart) the rules do not always produce precise and unambiguous juridical results. For instance, many rules of conflict contain points of connection that are nonspecific legal concepts: where is the locus delicti in multinational unlawful acts? Where is the locus celebrationis or solutionis in multinational contracts? On the other hand, the private international law principle that allows the parties to select which law is to be applied to an international contract can be characterized as a practice generally accepted by States and accordingly as a customary international rule. Varying limitations may be placed on this principle in different countries. The modern practice of codifying private international law could open the way to a general practice that States will select the lexffori as the rule, and any reference to foreign law will only be an exception. On the contrary, modern codifications tend to opt for the law most closely connected with the case. This is true even when special rules are set for self-limitation of the lexfori. For cases not covered by the lexfori, the trend is toward specifyingâ&#x20AC;&#x201D;by law or regulationâ&#x20AC;&#x201D;the foreign law applicable or else determining the law most closely connected by means of an escape clause that introduces flexibility into the general proximity. As a result, the lexfori cannot be considered an immediate recourse for establishing the law applicable to a case or a question not specifically covered by private international law. In the case of a lacuna, which rule of private international law is closest, or which law is most reasonably connected with the matter to be decided, will have to be determined by analogy. In modern systems of private international law the lexfori can extend its sphere of application to multinational cases by virtue of rules covering unnecessary and exclusive application or else by means of substantive rules independent of the rules governing conflict of laws. In addition, the fundamental principles of the lex fori commonly appear as a control of foreign law by the public policy of the private international law of the forum. However, a certain ambiguity regarding the term lex fori must be cleared up. This ambiguity resides in the fact that the lexfori is generally considered to be the body of rules of the private law of the forum that are normally applicable to national (i.e., domestic) cases. However, the lex fori can also be understood as encompassing all the rules of the forum, including rules of exclusive application and substantive rules of private international law of the forum. Application of these rules also requires observance of the principle of reasonable or minimum contact. The contact or contacts of the rules of exclusive application and the forum must also be reasonable. Thus Article 604 of the Argentine Navigation Law adopts various alternative contacts: place of formation, place of performance or jurisdiction of the Argentine courts.

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The underlying principle of substantive rules directly applicable to multinational cases usually determine the specific sphere of regional application, especially as regards contract provisions. Here its alignment with public international law arises from the relevant treaties (namely Article 1 of the United Nations Convention on Sale of Goods). When these rules are domestic, they can establish the relevant contacts. If they do not do so, the contact is provided by the jurisdiction of the forum. This has to be internationally reasonable. The Relationship Between Is and Should Be As noted above, the principle of reasonableness of contacts is inherent in public international law regarding legislative jurisdiction and in the natural law underlying or inherent in private international law. In this way it is possible to bridge the gulf between positivism and natural law, a gulf that gives rise to the assertion that there is absolutely no communication between what the law is and what it should be. There is no real separation between the law as it is and as it should be. The process of establishing, interpreting and applying the rules produces a continuous restructuring and reshaping of legal concepts. The lawmaker makes the rules as he thinks they should be. The judge, in interpreting and framing the applicable rules, draws on principles and assessments leading to outcomes as he believes they should be. The decision will be applied retroactively as if it had always been current law. In the celebrated "Vlasov" case, the court redefined the concept of "conjugal domicile" for the purpose of expanding Article 104 of the then Civil Matrimony Law.6 This redefinition made it possible to respect the Argentine forum of necessity by referring to a possible denial of justice that the court deemed contrary to public international law. The feared serious complication of legal proceedings outside the country made it necessary to open the Argentine forum for justice for the plaintiff. In the Vlasov case, the court did not apply the rule as it was, but as it considered it ought to be. The general principles of public international law and those of private international law make up positive or substantive law and can also be viewed as a natural law inherent in positive law.7 The incorporation into positive law of these general principles is the result of not only legislative regulation but also of legal precedents that, as in the Vlasov case, have generated a new jurisprudence subsequently accepted by Article 227 of the Argentine Civil Code. Finally, it is worth pointing out that the international practice of States to enter into treaties regarding the determination of the law applicable to private international law cases is based on the general principle of reasonableness of contacts. Moreover, this practice extends to treaties concerning the determination of the international "Decisions: 246:87. 7 Francescakis, Droitnaturel etdroit international prive. Paris, France: Melanges Maury, 1960,1.1, pp. 75 et seq.

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jurisdiction of national courts and recognition of nonexcessive foreign decisions among the party States. This in turn necessarily presumes accepting the search for reasonable jurisdictional contacts and implies unequivocal recognition of the principle of reasonableness of contacts. JUDICIAL INTEGRATION Inter jurisdictional Agreements Agreements on international jurisdiction In cases that are entirely multinational, effective and final settlements are not obtainable within the sphere of one single state jurisdiction. International harmony accordingly requires procedural cooperation in the various jurisdictions involved in a dispute. Efforts must be made to promote preventive coordination of the different state jurisdictions, in order to make possible a decision that will be recognized in the jurisdictions and, also, capable of being enforced in those decisive jurisdictional contexts. This means that the judges of an international case must have procedures available to them for this purpose. Especially in cases of concurrent jurisdictions, judges would be able to communicate with one another during the respective procedures in order to harmonize forms of jurisdictional assistance. However, it is also—and this is most important—possible to conceive of a procedure by which the national judges would meet to agree on a uniform settlement of the case that would be effective in each jurisdiction. This type of agreement would even be desirable in cases of conflict of international jurisdiction. Can national judges participate in these "interjurisdictional agreements" within the framework of the powers conferred upon them by their national sovereign authorities? I think so. They can do it by virtue of powers implicit in their respective international jurisdictions to hear and rule on such cases. It seems reasonable to conclude that if they are empowered to decide cases, the intention would be that they should exercise their powers as effectively and usefully as possible, since effectiveness is one of the essential bases of international jurisdiction. Thus national judges would be able to meet with foreign judges having concurrent jurisdiction or jurisdiction claimed to be exclusive for the case, in order to agree on an internationally harmonious decision. Agreements on settlement of substance Once the time comes to decide on the substance of the matter, the judges would determine the applicable law. They would be able to resolve the case based on their respective national laws, or else refine their settlements by harmonizing the structures of each system on the basis of functional comparative criteria. One national normative structure could be harmonized with another in order to achieve the same result.8 This 3

See our course "International Standard Contracts. A Comparative Study," in Recueil des

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method of harmonization would eliminate the need to clarify a conflict of laws. The decision would be on based on substantive law common to the legal systems involved in the case. It would also be an effective means for progressive rapprochement of the various legal systems. Comparison based on function could make the principle of international harmony of decisions more effective. If no decision can be reached with this approach, the judges will have to resort to a procedure known as conflictual harmonization. Under this procedure, the judges agree on the national law they would select for resolving the case. This would be done bearing in mind the national rules on conflict of laws, making every effort to harmonize these to the extent possible. However, even the national law selected would have to be interpreted and applied in accordance with other national rules whenever possible. The aim here is to reduce to a minimum the conflicts between the systems connected with the case. Whatever the method of determining the applicable law and for resolving the substance of the matter, the problem of interjurisdictional recognition of the decision arises. From a practical point of view, it is reasonable to presume that the judges involved in the decision will recognize the solution they have themselves jointly agreed on. The preamble to the pronouncements of each court should refer to the bases of the interjurisdictional agreement. Under these conditions, the decision would be effective in the places in which this effectiveness is required, and other judges of the same or third countries probably would recognize a decision adopted in such proceedings. It must be emphasized that each national judge would participate in the agreement by applying the instruments of their respective national legislation as starting points for the harmonization. Each judge would bear in mind his fundamental principles of public policy and would proceed to determine in light of these constraints whether a uniform settlement would be possible or not. The direct deliberation of the national judges might reveal more certain paths to an interjurisdictionally acceptable uniform settlement. Implicit Powers of Interjurisdictional Action It should be stressed that the basis of the judicial powers to act interjurisdictionally is rooted in the respective legislation. This is true because the legislation confers the jurisdiction to decide multinational private law cases and, also, to assist foreign courts to the point of recognizing or enforcing a foreign judgment. These are the express powers that implicitly authorize an interjurisdictional judicial activity. Of course it is true that issues of this sort could be taken care of by international treaties, and it would be most gratifying if they were. However, even without such

Cours, t. 170 (1981-1), pp. 9-113, esp. pp. 82 et seq., International Standard Contracts. The Price of Fairness, Graham & Trotman, Martinus Nijhoff, Dordrecht, Boston, London, 1991; our Derecho Internacional Privado, 3 vols., 3rd ed., 1991, esp. Chapter IV.

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CURRENT INTERNATIONAL TREATIES Each country has its own internal rules of law governing international jurisdiction in multinational cases, the law applicable to such cases and recognition and enforcement of foreign judgments. On these bases, as has already been discussed, an incipient international judicial integration process could be initiated. However, many States of the region are parties to international treaties that are too numerous to deal with here.9 TOWARD A NEW HAGUE CONVENTION The United States Proposal at the Hague Conference on Private International Law At the meeting of the Special Commission on Policy and General Affairs of the Hague Conference on Private International Law held from June 1 -4,1992, the United States delegation proposed that the conference begin work on a convention on recognition and enforcement of foreign judgments. The Special Commission decided that the matter should be considered by a small working group, which met in The Hague from October 29-31,1992, with participation by experts from Argentina, China, Egypt, Finland, France, Hungary, the United Kingdom, the United States and Venezuela. The group used a working document prepared by the United States entitled Another Hague Convention on Recognition and Enforcement of Foreign Judgments: New Approaches and New Opportunities, which, essentially, proposed the mixed convention model, thus named to distinguish it from the single and double convention models. According to the United States' document, single conventions only regulate the recognition and enforcement directly. Their effectiveness regarding assumption of jurisdiction in the forum of origin is indirect and limited because judgments not based on a jurisdictional connection accepted by the convention cannot be recognized and enforced by virtue of a single convention, such as for instance, the Hague Convention of February 1, 1971, on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. A double convention, on the other hand, regulates both the assumption of jurisdiction to give judgment by the court of origin and also recognition and enforcement of the judgment in the court of recognition. It establishes a "white list" of jurisdictional criteria that justify and oblige assumption of jurisdiction by the court of 9

For an overview see our Derecho Internacional Privado. Buenos Aires, Argentina: 1991, Vol. Ill, Appendix on International Treaties.

instruments, the courts would be able to use the internal law of their countries for the accomplishment of the same lofty goal.

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origin and, at the same time, oblige recognition or enforcement. Strictly speaking, the courts of the Contracting States can only exercise jurisdiction in accordance with the jurisdictional criteria of the white list. According to the document, the Brussels and Lugano Conventions are double conventions. The mixed convention model proposed by the United States also has a "white list" setting out approved grounds for jurisdiction. However, the mixed model permits assumption of jurisdiction on other grounds, as well as those included in the white list. Judgments based on these other grounds do not necessarily have to be recognized according to the convention, but the State requested to do so may or may not recognize or enforce the judgment according to its own general law (i.e., not on the basis of the convention). However, the mixed model also proposes a "black list" of excessive unreasonable and prohibited jurisdictions. According to the U.S. document, the mixed convention model will bring clarity, certainty and predictability in the same way as a double convention in the area of both the white and the black lists. On the other hand, it leaves a grey area of flexibility that is a residual area in which exercise of jurisdiction can be assumed as long as this is not done on one of the grounds included in the black list. According to the document, the mixed model is best suited for a large community of States, while the double model is best for a regional community. The proposal consists of having the mixed model align itself with the Brussels and Lugano conventions and parallel them as much as possible. This would make a universal convention more straightforward, have a harmonizing effect and facilitate trade. It would not always be possible to follow the Brussels-Lugano approaches precisely. For example, the requirement regarding the contractual forum in Article 5(1) would have to be dropped in order to achieve universality. However, every effort should be made to follow the Brussels and Lugano conventions to the fullest possible degree. The Mixed Model Convention in the Hague Working Group of October 1992 The group recognized that multinational negotiation [in the Hague Conference] of a convention on recognition and enforcement of foreign judgments would be desirable with a view to facilitating world trade. Although it expressed a certain preference for the double convention model, the group recognized that, in a universal context, it would be excessively ambitious to require the courts of origin to assume jurisdiction exclusively on the grounds authorized in the convention. Further, it would be asking a lot of the courts of recognition to expect them to abandon all control over the bases of jurisdiction of the courts of origin. The group preferred a convention with some of the advantages of a double convention, but with rather more flexibility than the Brussels-Lugano conventions. Such a convention would have to have a white list of connections in which the courts of origin, in principle and subject to the doctrine of forum non conveniens, would be required to assume jurisdiction. Provision should be included for the courts of origin to assume jurisdiction on grounds not specified in the white list. This list would not be exclusive but would have a "grey area" in which it would be permissible but not obligatory to assume jurisdiction.

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A black list would have to be prepared of excessive connections in which the courts of origin would be barred from assuming jurisdiction. The court of recognition would be obliged to give recognition in the cases in the white list, and free to do so regarding those in the grey area. However the court would not be obliged not to do so in cases in which jurisdiction is based on situations in the black list. Unlike the Brussels-Lugano conventions, the court notified should be empowered to review the basis of the jurisdiction of the court of origin, but not the questions of fact judged by that court. The convention should govern in civil and commercial matters, with the necessary in-depth understanding of the considerations involved. Family-type matters would be excluded. The issue of including antitrust or jurisdictional law should be thoroughly studied. Jurisdictional Connections that Could Be Included in the "White List" The group considered a possible white list and there was a consensus that the following connections or bases warranted careful consideration: a) The habitual residence or the domicile of the defendant, or if the defendant is not a physical person, its headquarters (address) or its place of establishment or its principal place of business. b) A commercial establishment or branch in connection with proceedings arising from business transactions carried out by such establishment or branch. c) Real estate located in the State of origin if the main purpose of the action is to determine rights (e.g., ownership, usufruct, mortgage). d) Special support and alimony court: the group was inclined not to recommend inclusion of a court as referred to in Article 5(2) of the Brussels-Lugano Conventions. The question of court's inclusion was discussed in the scope of the convention, without any conclusion being reached. e) Locus delicti: it was deemed that this jurisdiction would be strictly limited to cases in which the perpetrator of the damage or loss was present in the territory where such damage or loss occurred (thus Article 10(4) of the Hague Convention of 1971). Acceptance of jurisdiction of the place of the damage and the place where the damage or loss was suffered (Article 5(3) of Brussels Convention interpreted by the Court of Justice of the European Community in case 21,176, November 30, 1976, Bier B.V. v. Mines de Potasse d'Alsace (1976) ECR, p. 1735) could be very broad for a universal convention. f) Selection of forum ("change of venue"). The limitations of Article 10(5) of the Hague Convention of 1971 should not apply. Article 17 of the Brussels-Lugano could serve as a model. g) Appearance of defendant without contesting jurisdiction. Some limit could be required as in Article 10(6) of the Hague Convention of 1971.

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i) Contracts: no conclusion was reached regarding their inclusion in the white list and, if they were, as to whether this should be based on the place of formation or place of performance. There was a relative consensus that if a special connection were to be included, there should not be a multiplicity of fora for the different obligations arising from the contract as in Article 5(1) of Brussels-Lugano, as interpreted by the Court of Justice of the European Community. j) The domicile or place of establishment of the trusts: there was general support for including this basis for jurisdiction, but not as to the precise formula to be applied. k) Possibly: the habitual residence of the consumer in certain consumer contracts or the place of performance of the work in certain individual labor contracts. 1) Other bases for jurisdiction: for example, the matter of a company or association as regards their existence or dissolution; place of registration of patents and trademarks, etc. (Article 16 Brussels-Lugano). Certain connections could be exclusive (for example, c, f or j; c and j prevail over f)If there is exclusive jurisdiction, the other courts notified would have to decline jurisdiction and would not be able to assume jurisdiction in "grey" areas. Jurisdictional Connections that Could Be Included in the "Black List" There was a consensus that the following Jurisdictional criteria ought to be carefully considered for inclusion in the "black list": a) Presence of property of the defendant: there was no consensus on the scope of a possible exception (Article 4 of the Supplementary Protocol to the 1971 Hague Convention); b) Nationality of defendant; c) Habitual residence or domicile of defendant, except in cases that could be included in the white list; d) Doing business as contact or basis for general jurisdiction: this is seen as an indirect basis for jurisdiction that should lead to rejection of recognition and enforcement as in Article 4(d) of the Supplementary Protocol to the 1971 Hague Convention; it does not feature in the list of bases for jurisdiction excluded from Article 3 of Brussels-Lugano, but this is why "doing business" has never been accepted as a basis for jurisdiction in any EC or EFTA State. There was no consensus as to whether this basis should be included in the black list of the future convention;

h) Cross claims (Article 6(3) Brussels-Lugano). The provisions of Article 6 on plurality of defendants, guarantee actions, contractual actions combined with actions in rem, were not considered appropriate for a universal convention.

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e) Service of summons on defendant during his temporary presence: this is seen as an indirect jurisdictional connection that should lead to rejection of recognition or enforcement under Article 4(e) of the above-mentioned Supplementary Protocol. It also appears to be a connection excluded as regards persons domiciled in a party State under Article 3 of Brussels-Lugano; f) Unilateral determination of the forum of the defendant, i.e., without the defendant's consent; g) Other. "Grey Areas" The group recognized areas that present special problems, for example in antitrust, jurisdictional or environmental law, in product liability, or in the amount or character of damages. Some discussion took place which also covered certain jurisprudence of some member States (thus Bundesgerichtshof, s. 4 of June 1992, case No. IX Z R 1497 91), without any conclusions being reached. It seems interesting to note that these problem areas could be subjects for regulation in the white or black lists. However, it is conceivable that they could be left for the "grey areas" if there is no adequate consensus. Forum Non Conveniens Although Brussels-Lugano does not include provision for this procedure, the group recognized that there is a need to pursue the study of the reasonableness of allowing the courts of a country that is a party to the new convention to decline jurisdiction in cases in which, although there is a "white connection" with the forum, there is another forum that is more suited for assuming jurisdiction. This doctrine can serve for making exceptions to the white list, but also possibly for exceptions to the black list as well, and for accepting that, in the particular circumstances of a case, a forum can assume jurisdiction despite there being a "black connection," if other special circumstances render such a result appropriate. The forum non conveniens doctrine should be used as an exception for excluding both "white connections" and "black connections." On the other hand, it could have a broader scope for establishing a formula regarding the "grey connections." This doctrine should serve for testing the "grey areas." As will be seen further on, this could moderate the possible extent of the grey area. Lis Alibi Pendens The "grey area" of the new convention would also give a new meaning to concurrency of actions. Article 21 of Brussels-Lugano could serve as a model, but study of this article should be pursued against the backdrop of the new structure of the mixed convention.

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The entire question must now be considered in light of the new structure of a mixed convention. Although the group considered this aspect of the problem, as is understandable no conclusions were reached. While it is believed that recognition and enforcement should be facilitated to the greatest extent possible, it must be borne in mind that the "grey connections" will require special consideration of their acceptability in light of the general law of the court in question. The group considered that Article 26 of Brussels-Lugano could serve as an appropriate basis for study. It was agreed that the following grounds for rejection warranted special consideration: a) public policy; b the principle of Articles 27(2) of Brussels-Lugano and 6 of the 1971 Hague Convention, although their formulation should be reviewed; c) Article 27(3) and (5) of Brussels-Lugano on irreconcilable judgments. For the specific purpose of reviewing certain "grey connection criteria" in order to distinguish them from white and black connections, it was suggested that in the new convention it would be most desirable if the parties could require the court of origin to specify the contact(s) that it considered sufficient for assuming jurisdiction or specific contacts used to determine jurisdiction. In light of the new circumstances, the provisional and precautionary measures that a court can effectively take in the other contracting States should be reconsidered. Bilateralism The group considered it premature to discuss whether the future convention would enter into effect among all the ratifying States or only among those States that agree that it should enter into force among them. This is a delicate question, especially for States that already have a firmly established practice in the matter. Various options are conceivable. One is that a number of different systems might function concurrently: a regional one, for example Brussels-Lugano or those of certain American conventions. In addition to the Bustamante Code the following must also be borne in mind: the 1889 Treaty of Montevideo linking Argentina, Bolivia, Colombia and Peru; the 1940 Treaty of Montevideo between Argentina, Paraguay and Uruguay; and the Inter-American Convention on the Extraterritorial Effectiveness of Foreign Judgments and Arbitration Awards of Montevideo of 1979 between Argentina, Colombia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela. These already generate certain problems of conflicts of conventions. The future Hague Convention could therefore provide a universal model that, while of course leaving the regional structures in effect, would establish a bridge that would link the different world systems multilaterally or bilaterally. From a Latin American viewpoint I think that a system such as that of Brussels-Lugano with supranational jurisdiction and jurisprudence already in effect would be a vital

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CENTRAL AUTHORITIES FOR JUDICIAL INTEGRATION An international treaty, which could be the future Hague Convention or some other American Convention, should set up a system of cooperation by means of designation by each country of a central authority competent to enforce compliance with the objectives of the treaty, facilitating interjurisdictional meetings of different national juridical authorities, interjurisdictional agreements and substantive agreements on settlement of the substance of cases. These central authorities could be administrative in nature, for example in the Justice or Foreign Affairs Ministries, or they can be judicial in nature and headquartered in a Secretariat or Office of the Supreme Courts. These authorities would also have to perform official information functions regarding current law, coordinate meetings and play a role in the interjurisdictional agreements under the supervision of the Supreme Courts of the Member States. THE EMBRYO OF A SUPRANATIONAL JUSTICE SYSTEM The functioning of an integrated international judicial cooperation system as outlined above, particularly with meetings to agree on solutions to conflicts of jurisdiction, recognition and enforcement of foreign judgments and possibly also to hammer out solutions in civil and commercial matters and conceivably others as well, would be an effective basis for solid growth. Then, and quite possibly in the not too distant future, it would be possible to establish a system by which, in the event of a case requiring supranational treatment, the central authorities of the countries involved would submit it or remit it to a supranational court set up on the bases considered in the foregoing pages.

benchmark since it would be the sole supranational private law system in the world. This is an example that cannot be ignored.

Justice and the Internationalization of the Law

Didier Opertti Badan Ambassador of Uruguay to the Organization of American States

The Inter-American Development Bank's initiative to hold this Seminar on Justice in Latin America and the Caribbean in the 1990s, firmly supported by the Costa Rican Government, takes on special significance by reason of the growing internationalization of judicial relations and the accompanying increase in the problems and new difficulties facing the administration of justice in these regions. A broad look at international relations reveals rapid growth in both quantity and quality due to a variety of factorsâ&#x20AC;&#x201D;some easy to detect, such as the formidable progress in communications, and others that require deeper analysis, such as the new involvement of private economic agents in the marketplace and in integrated economies, in tandem with growing divestiture of selected government activities to these agents. This is the context I have chosen for my paper; my main purpose is to identify and expand upon a few broad themes in this area. INTERNATIONALIZATION OF JUDICIAL RELATIONS AND THE LAW I might begin by asking whether we are in the presence of a new international law or whether what is happening is rather that new forms of "internationalized relations" are encroaching on the traditional legal scene and bringing pressure to bear on it, with uneven results depending on the area involved. If we take international economic agreements, for example, we can see that their regulation is a matter of both domestic and international law and that, in the final analysis, it is a question of striking a balance between the two. I choose this example, because the terms in which such regulations are couched will send this or that message to the partiesâ&#x20AC;&#x201D;and to the judges themselves when the time comes to interpret and apply them. At the same time, we should recognize that some sectors of international relations have kept their original features more or less intact, cases in point being family, estate and civil law. Others are emerging as part of a new international agenda in which the boundaries between public and private spheres of judicial relations are becoming

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blurred and are complicating the tasks of international legislators, interpreters, judges and arbitrators alike. The situation is compounded by legal techniques, formulated over many years, which differ for public and private international law, which create added difficulties that the administration of justice has no way of circumventing. Just by way of example, the following might be cited among these new, emerging legal issues: • the international protection of human rights and the new guarantee mechanisms; • the new law on the environment, accompanied by a renewed spirit of international cooperation to protect it; • the safeguarding of the sovereign rights of states in exclusive economic zones, as a no-exemption barrier to extraterritorial activity by multinational economic agents; • the force of international coercion in its various forms, whether political, diplomatic, economic or military; • harmonization between the San Francisco Charter, as the universal system of the United Nations, and regional instruments, such as the OAS and other similar Charters; • the internationalization, at the regional inter-American level, of the defense of the democratic system enshrined in 1991 by the General Assembly of the OAS at Santiago de Chile (Res. 1080) and the more recent Protocol of Amendment to the Charter signed in Washington in late 1992. This bare-bones list is sufficient in itself to demonstrate the profound transformation taking place in the legal repertoire that a judge, whether domestic or international, is obliged to consult. Notwithstanding this growth and deepening of new focus of international relations, which clearly point to a renewed dynamic at work, there has been no matching process at the jurisdictional level, although this should not prevent us from acknowledging in general terms that resort to the International Court of Justice in The Hague has been rising and serves as eloquent testimony to the international community's preference for judicial solutions. In short, we have reached a juncture at which certain traditional elements subsist but at which significant changes are the order of the day, changes that have no counterpart in the administration of justice, which is the primary focus of this gathering. To pinpoint the role of justice in this new environment, we need to take stock of some basic assumptions, which are outlined in the paragraphs that follow, noting from the outset that this paper focuses mainly on private international relations, with particular reference to jurisdictional matters. THE ISSUE OF JURISDICTION (PARTICULARLY IN PRIVATE INTERNATIONAL LAW) When we speak of a new international law—or, more accurately, of a law that is becoming internationalized—we should recognize that to an increasing extent international issues are becoming part of the domestic scene. A good case in point is the

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application, by domestic judges, of the American Human Rights Convention of San Jose, Costa Rica. Another noteworthy phenomenon, as modern teaching points out (Rigaux, Course of the Academy of International Law, p. 108), is that cases involving domestic law are being brought before international judges. None of these cases are exerting a decisive influence as far as international jurisdiction is concerned, even though their scope is being modified and broadened both in the domestic sphere and in the international sphere itself (or "supranational," as some call it). However, the dominant given we find in Latin America and the Caribbean is the absence of jurisdictional unity, by which I mean an agreement among all states establishing the national jurisdictions before which private international disputes should be brought. Suffice it to recall, in order to illustrate this point, that there are no inter-American standards accepted by all member states of the OAS that define unequivocally what country' s judge should hear, for example, a suit for injuries and damages arising from nonperformance of an international contract, from a plane crash or from cross-border pollution. Naturally, the foregoing does not prevent us from recognizing the efforts made through the Bustamante Code of 1928, the Treaties of Montevideo of 1889 and 1940, the Inter-American Peace Convention of 1984 in the matter of Jurisdiction, the 1979 Montevideo Convention on the Extraterritorial Effectiveness of Foreign Judgments and Arbitration Awards, and of still other instruments which have sought to resolve jurisdictional conflicts in an inter-American context with respect to certain specific categories, such as bills of exchange, adoption of minors, and others. While acknowledging the commendable work of the Specialized Inter-American Conference on Private International Law (CIDIP), which met in 1975,1979,1984 and 1989 and is slated to hold its fifth meeting in Mexico in 1994, we would be remiss if we did not point out that the results in the matter of competent jurisdiction do not parallel those achieved in Europe. More than 20 European countries have agreed on what the competent jurisdiction should be and have done so by means of successive conventions and protocols designed to make it easier for new member-states of the European Economic Community to join the system of jurisdictional uniformity. I would simply cite the 1968 Brussels Convention and the Protocol of 1971; the San Sebastian Convention, in effect since 1991, aimed at allowing Spain and Portugal to adhere to the Brussels Convention; and the Lugano Convention of 1992, which paved the way for Austria, Finland, Iceland, Norway, Sweden and Switzerland to join the jurisdictional system. However, it should also not be forgotten that perhaps the greatest difference between the inter-American and European systems lies in the fact that the Brussels Convention of 1968, supplemented by the Protocol of 3 June 1971, confers on the European Court the power to interpret the convention, which is recognized as the first multilateral treaty formula to create a supranational jurisdiction. If we remember that these European conventions have established a common judicial arena for 380 million people and that this represents one of the world's three economic powers, we can visualize very clearly how far we have yet to travel if we wish, at the least, to assure the unrestricted recognition of judgments in inter-American circles as a necessary corollary to judicial certainty.

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One positive element that might be singled out, which is common to both Europe and our region, is the centralizing and at times decisive role played by the different international organizations. In summary, we find: • jurisdictional uniformity in Europe but multiplicity in Latin America and the Caribbean. • supranationality, at least in the matter of jurisdiction, in Europe and still essentially country-based forms in our region. Faced with this overview, the question arises whether we can attempt to create a single justice system located outside any given state. Can we aspire to create a single special jurisdiction to settle disputes that transcend the boundaries of a state? The following thoughts are offered by way of reply. POSSIBILITY OF A SINGLE JURISDICTION This issue can be viewed from the standpoint of governments or individuals; in the first case, it would be a question of creating a regional tribunal or court of justice along the lines recommended, for example, by the study group formed a year or two ago by the Organization of American States and made up of leading jurists and public figures. This view was shared by the Inter-American Juridical Committee in 1992 when it came out in favor of the establishment of a regional court to hear criminal cases. In similar fashion, states linked by economic integration regimes have taken on the task of establishing regional tribunals as an element of their respective institutional processes; these include among others, the Andean Court, the Tribunal of the Central American Integration System, and MERCOSUR'S Brasilia Protocol, which offer different approaches to the issue of access to justice and the pertinent procedural requirements. In the case of individuals, that is, private economic agents, we see that the approach of choice is both institutional and ad hoc arbitration and that governments themselves, at the instigation of lending agencies, have made available to individuals such systems as MIGA and ICSID, which specialize in foreign investments, without prejudice to their own respective powers and prerogatives. Universal instruments like the New York Convention of 1958 and regional instruments like the Panama Convention of 1975 regulate international commercial arbitration as a juridical category that provides individuals with dispute settlement formulas that are presumably more effective and predictable than state-administered instruments. However, the proliferation of forms of arbitration and the differing degrees to which states recognize their effectiveness constitute difficulties that are comparable in a way to those that arise from the jurisdictional diversity to which I alluded earlier. We cannot forget that arbitration, which is in essence a consensual and private arrangement—if we define this as meaning independent of jurisdictional management as such—ultimately requires the backing of government authority if it is to be effective. Recognizing this latter element as a key component of the approach may be

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a good starting point for examining the traditional Calvo doctrine, the bases of which are still constitutional precepts in some of our countries today, and for negotiating voluntary adhesion to preventive agreements. A recent and very exhaustive study by the Mexican jurist Jose Luis Siqueiros, which he presented to the Inter-American Juridical Committee as a member during its 1992 session, sets out interesting possibilities for interpreting the Calvo doctrine that are worth exploring in greater depth. In any event, it is evident that any formula that may lead to improvements in arbitration proceedings, especially in the private sphere, would significantly lighten the burden of state-administered justice, a criterion that for pragmatic reasons should not be discarded at a time when practical solutions are being tested. A MORE SPECIFIC APPROACH: JURISDICTION IN THE ADVENT OF INTEGRATION My comments on the evolution of conventions in Europe illustrate how an economic integration movement as dynamic as the EEC made use of traditional procedures to resolve jurisdictional conflicts by resorting to conventional rules. This raises the reasonable question whether a similar exercise in Latin America would not be both possible and viable, especially in integrated areas. I should point out that the Andean Tribunal bears eloquent testimony to the feasibility of such a tribunal and that this region may well boast a unique judicial system, despite the fact that its scope is limited to certain specific matters. Another recent example is MERCOSUR, an outgrowth of the Treaty of Asuncion (1991), which through the Protocol of Brasilia has tackled the settlement of disputes between member states with respect to the interpretation, application or nonperformance of the provisions of the Treaty of Asuncion, the agreements concluded within the framework of the Treaty, and decisions of the Council and resolutions of the Common Market Group. So far there has been little resort to claims by individuals, which are covered only with respect to recourses in the form of approval or enforcement in Chapter V, against any of the signatory states, for legal or administrative injunctions in the area of discrimination or unfair competition in violation of the Treaty of Asuncion or the other instruments and agreements mentioned earlier. No thought has yet been given to the possibility of a special dispute settlement mechanism for economic agents operating within the integrated framework. However, there has been a breakthrough by the Ministers of Justice and the Supreme Courts of MERCOSUR countries in the form of the proposal to establish a court or tribunal to hear cases brought by individuals. In my view, when MERCOSUR establishes its own jurisdictional system, it should bear in mind the European precedent set by the EEC Court but also recognize the organizational and institutional differences between the two and reflect these in the final outcome. In this connection, I believe it would be useful to recall the different kinds of disputes that might arise and at the same time indicate the most appropriate jurisdiction for settling them.

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DIFFERENT KINDS OF DISPUTES

Disputes between member states of an integration regime should be settled within the integration scheme itself. Should this not prove feasible, it would be very useful to have a competent jurisdictional body that could issue binding decisions. It would also be desirable if this jurisdictional body did not belong to any of the partner states but to the integration regime itself. If one were contemplating a system with a single judicial organ, one might need to make such a jurisdictional body highly specialized. In the event that recourse to appeal were considered likely, this would make the establishment of an appeal body outside the subregional sphere an even more viable proposition. Second Category Claims between states or state-owned public agencies, related to dealings or activities conducted within the integrated regime, not in their capacity as contracting states but as economic agents on a footing similar to that of private agents. In this case the creation of a higher international tribunal along the lines already suggested and outside the integration scheme, with the power to issue binding awards or judgments, would be extremely useful in that it would reduce the chances of confrontation within the integration agencies themselves. Third Category Appeals by private individuals against decisions or rulings, issued either by integration bodies or by member states, that impair the interests and rights of the affected parties. In this case, bearing in mind that the classic system would authorize only national jurisdictions, it would be necessary to move in the direction of establishing an integrated tribunal (within or outside the actual integration regime) endowed with the independence and autonomy needed to resolve such disputes with integrity and efficiency. Naturally, the possibility of an international court including these characteristics is well worth exploring. Fourth Category Claims between individuals carrying out contractual or business activities in the private sector within an integrated regime would naturally also require their own jurisdictional solutions, which might be merged with some of the formulas suggested earlier. Failing the creation of such a body, the existing rules for determining competent

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jurisdiction, that is, those available under traditional private international law before the advent of economic integration processes would operate. This latter solution would not be ideal since it overlooks the existence of a common territory and the consequent need for a single jurisdiction. Experience with the Treaties of Montevideo and the Bustamante Code, and that of North American jurisprudence, both show that it is impossible to separate the local interest, as expressed in the judgment, from the law selected as a basis for adjudication. This fact suggests that the system could result in the international character of the relationship being overlooked, an outcome not intended by the solution. OTHER POSSIBILITIES We should also add to this inventory of alternatives what Professor Antonio Boggiano of Argentina has so persuasively presented at this Seminar, namely the possibility of senior judges meeting directly as a body for exchange and consultation, with a view to establishing criteria for certain aspects that could be settled at the judicial level. This approach, and the actual formula proposed by the Argentine jurist, is certainly not incompatible with the operation of any of the others. The creation or deepening of common judicial ground would yield a pragmatic instrument that could prove especially helpful in matters involving integrated economies and families of cognate legal issues. It would also favor the use of certain unique criteria of interpretation, for which advance knowledge of the applicable forum—for which the Court of the European Communities provides a good example—could serve as a useful frame of reference. SOME CONCRETE SUGGESTIONS It is clear that none of these formulas excludes the other, but we should in any event follow a defined path—one that follows from the logical need to know what stages to embark on first so that we can build on them and use the experiences to tackle the next. It is in this vein that I would venture a very brief synopsis of how I see our region's prospects for the area of administration of justice and for producing a reasonable and sure balance between our knowledge of an international reality that is growing richer and a justice administration that is carrying almost congenital difficulties within each country. This does not make it any easier to appreciate the phenomenon of internationalization and adds to the existing problems. In the first place, we believe use should be made of what is already in place. Latin America, in particular, frequently errs on the side of over-legislating. This tendency must be avoided and special care should be paid to the international sphere in which agreements are more complex. This means, therefore, focusing our attention on existing instruments in an effort to agree on principles regarding the issue of single jurisdiction and arbitration. On both of these issues CIDIP, as an organ of the OAS, is spearheading a systematic codification effort at the regional level, and member countries should pay greater attention to its work.

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JUSTICE AND DEVELOPMENT

Similarly, and with special reference to the issue of arbitration, extending the area of application of the New York and Panama Conventions to as many signatory states as possible would obviate many of the problems arising today. Membership in the International Centre for Settlement of Investment Disputes (ICSID) or the Multilateral Investment Guarantee Agency (MIGA) would facilitate the resolution of problems related to direct investments, one of the traditional sources of international disputes. The foregoing, combined with a reasonable interpretation of the Calvo doctrine that would prevent preferential treatment of foreign interests, would create a framework of certainty without undermining basic principles. Naturally, this does not mean we should overlook the potential role of the Inter-American Commercial Arbitration Commission (IACAC) and its national chapters. Some of IDE's recent experiences with countries in the region can be seen as effective support in this direction. Secondly, we should cultivate increased willingness in the countries of our region to participate in the fora drafting the new international law, such as the United Nations Commission on International Trade Law (UNCITRAL), the Hague Conference on Private International Law (HCOPIL), and certainly CIDIP itself. While stressing CIDIP, we note virtually zero attendance by English-speaking Caribbean countries. This fact is in contrast to the active role of the United States, which has actually ratified some of the Inter-American Conventions (Exhortations or Rogatory Letters with its Supplementary Protocol [Montevideo, 1979] and International Commercial Arbitration, both of Panama [1975]). The U.S. action should go to show that —at least in certain cases— there is no incompatibility between common law and Roman law countries. The list of ratifying countries—long for some Inter-American Conventions, short for others—appears to have less to do with the substantive merits of each issue than with a certain inertia on the part of the political system when faced with a set of technical issues, even though they may have far-reaching political implications. More widespread use of these inter-American instruments within the justice administration sector, whether ratified or not, would have a highly beneficial effect. Thirdly, we should acknowledge that both existing instruments and the states' own practices are in need of improvement. And we should admit here that the privatization processes now under way in varying degrees in our countries multiplies the absolute number of private relationships, both domestic and international, while at the same time affecting traditional formulas for determining applicable law and competent jurisdiction, this is true because they focus primarily on private agents. Taking this fact into consideration together with the internationalization and globalization of economies, the mutual freedom of parties (autonomy of contractual intent) and the rules of government prerogatives—which involve the issue of extension of jurisdiction (the so-called available court) makes it a leading issue. At least inasmuch as the state cannot and should not abdicate its responsibility for acting for the common good (its supreme value) of the community as a whole. In the field of economic dealings bound by legal contracts—an area of constant growth—it will be necessary to agree on clear rules to balance contractual freedom with certain general interests, whether in the realm of public order or as part of the police power of states.

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However, I am not advocating a verbatim reproduction of the traditional solutions. On the contrary, I share Rigaux's judgment that traditional workings of private international law can in some cases end up blocking the extraterritorial application of foreign economic law and thereby produce what is often a negative impact. I would stress once again, though, that there is a growing need to strike a balance that does not shackle private interests but that at the same time does not diminish the state's inherent function as ultimate arbitrer of disputes between individuals and society as a whole. In the quest for this balance, in which the bar will at times have a decisive role to play, we should devote much of our effort in the current decade to agreeing on the juridical issues. Finally, it is clear to me that discretion and unilateralism, which tend to acquire highly negative connotations to the state on the receiving end, can be largely averted through strengthening of the negotiating process and the resulting instruments. Excessive extraterritoriality breeds renewed territorialism as the embodiment of sovereignty. Compromise solutions are becoming more and more compelling, and herein lies perhaps one of the essential values of arbitration and ad hoc jurisdiction. A case in point is the settlement of the dispute between the United States and the Islamic Republic of Iran, which highlighted the possibilities that are opening up in this field. Jurisdictional agreements between states that join forces to fight drug trafficking, prevent cross-border pollution, or provide reciprocal assistance in criminal matters are all telling signs of the important changes taking place in the international community. It is essential not only to bring these changes about but also to internalize them in each state's judicial machinery the alternative is to risk an irreducible divorce between the letter of the law and its final application, the act of justice, as an often necessary proxy in the complex process of seeking equitable and balanced solutions. Taken together, the ideas put forward by each of the presenters provide a broad overview of the issues before us and offer a foundation for conceiving new steps toward developing and implementing them. One of them, quite feasible in my judgment, would be to deepen as far as possible the ties of cooperation among the IDE, governments, and other international organizations and agencies, in order to identify specific plans for designing, acting on, and participating in each of them. This Seminar has used such a strategy. Thought should be given in the very near future, within a regional context, to the role to be assigned to the Organization of American States in this effort to support justice, which calls both for the development of rules and for programs of cooperation. This can perhaps be better illustrated by a concrete example. International contracts are to be the central topic of the next CIDIP meeting (Mexico, 1994). Discussion there will inevitably focus on the freedom of parties and the limits of this freedom, which is a crucial issue for justice when ruling on specific disputes that typically involve the common good and private interests. Coordinating the IDE's efforts in support of justice with those of the OAS and member states to resolve conflicts of laws and jurisdictions is a natural outgrowth of this effort to use and improve on existing instruments and to innovate only when necessary and desirable.

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I am encouraged, on the one hand, by the firm sense of purpose that is now inspiring the OAS in its efforts to cooperate in the development of justice in the region and, on the other, by the spirit of mutual coordination and cooperation that is guiding the IDE and, in particular, its present undertaking.

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MEMBER STATES

ghkjdhhjg OVERSTATES Antigua and Barbuda Argentina Bahamas (Commonwealth of) Barbados Belize Bolivia Brazil Canada Colombia Costa Rica Chile Dominica (Commonwealth of) Dominican Republic El Salvador Grenada Guatemala Guyana Haiti Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Saint Lucia Saint Vincent and the Grenadines St. Kitts and Nevis Spain Suriname Trinidad and Tobago United States Uruguay Venezuela Parties

Conflict of laws concerning bills of exchange, promisory notes,

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Conflicts of laws concerning

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Legal regime of powers 01 attorney to be used abroad (CIDIP-II, 1975)*

Conflicts of laws concerning checks (CIDIP-II, 1979)*

Conflicts of laws concerning commercial companies (CIDIP-II, 1979)*

Extraterritorial validity of foreign judgments and arbitral awards (CIDIP-II, 1979)*

Antigua and Barbuda Argentina Bahamas Barbados Belize S S Bolivia S Brazil S S S S Canada Colombia S S S S S Costa Rica S S S S Chile Dominica (Commonwealth of) Dominican Republic S S S Ecuador S El Salvador S S S Grenada Guatemala S Guyana Haiti S S S S S Honduras S Jamaica Mexico Nicaragua Panama S S S Paraguay Peru Saint Lucia Saint Vincent and the Grenadines St. Kills and Nevis Spain Suriname Trinidad and Tobago United States Uruguay Venezuela Parties 15 7 6 8 In Force. These international instruments enter into force 30 days after the deposit of two instruments of ratification.

** Not in Force.

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INTER-AMERICAN CONFERENCES AND PROTOCOLS APPROVED BY THE INTER-AMERICAN SPECIALIZED CONFERENCES ON PRIVATE INTERNATIONAL LAW, PANAMA 1975, URUGUAY 1979, BOLIVIA 1984 AND URUGUAY 1989, SIGNATURES, RATIFICATIONS, AND ACCESSIONS AS OF MARCH 1,1993 MEMBER STATES OFTHEOAS AND OTHER STATES Antigua and Barbuda Argentina Bahamas (Commonwealth of) Barbados Belize Bolivia Brazil Canada Colombia Costa Rica Chile Dominica (Commonwealth of) Dominican Republic Ecuador El Salvador Grenada Guatemala Guyana Haiti Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Saint Lucia Saint Vincent and the Grenadines St. Kitts and Nevis Spain Suriname Trinidad and Tobago United States Uruguay Venezuela Parties

Execution of preventive measures (CIDIP-II, 1979)*

Proof and information on foreign law (CIDIP-II, 1979)*

Domicile of natural persons in private international law (CIDIP-II, 1979)*

General rules on private international law (CIDIP-II, 1979)*

S S

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INTER-AMERICAN CONFERENCES AND PROTOCOLS APPROVED BY THE INTER-AMERICAN SPECIALIZED CONFERENCES ON PRIVATE INTERNATIONAL LAW, PANAMA 1975, URUGUAY 1979, BOLIVIA 1984 AND URUGUAY 1989, SIGNATURES, RATIFICATIONS, AND ACCESSIONS AS OF MARCH 1,1993 MEMBER STATES OFTHEOAS AND OTHER STATES Antigua and Barbuda Argentina Bahamas Barbados Belize Bolivia Brazil Canada Colombia Costa Rica Chile Dominica (Commonwealth of) Dominican Republic Ecuador El Salvador Grenada Guatemala Guyana Haiti Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Saint Lucia Saint Vincent and the Grenadines St. Kitts and Nevis Spain Suriname Trinidad and Tobago United States Uruguay Venezuela Parties

Additional protocol to the interAmerican convention on letters rogatory (CIDIP-II, 1979)*

Conflicts of laws concerning the adoption of minors (CIDIP-III, 1984)*

Personality and capacity of juridical persons in private international law (CIDIP-III, 1984**

Jurisdiction in the international sphere for the extraterritorial validity of foreign judgments (CIDIP-III, 1984)**

S S

S S S

S S

*ln Force. These international instruments enter into force 30 days after the deposit of two instruments of ratification. ** Not in Force.

= Ratification

S = Signature

A-= Accession

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MEMBER STATES OFTHEOAS AND OTHER STATES Antigua and Barbuda Argentina Bahamas Barbados Belize Bolivia Brazil Canada Colombia Costa Rica Chile Dominica (Commonwealth of) Dominican Republic Ecuador El Salvador Grenada Guatemala Guyana Haiti. Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Saint Lucia Saint Vincent and the Grenadines St. Kills and Nevis Spain Suriname Trinidad and Tobago United States Uruguay Venezuela

Additional protocol to the inter-American convention on the taking of evidence abroad (CIDIP-III, 1984)**

Inter-american Inter-American convention on the convention on the Inter-American contracts tor the convention on international carriage international return of children support obligations of goods by road (CIDIP-IV, 1989)** (CIDIP-IV, 1989)** (CI-DIP-IV, 1989)**

S S

S S S

In Force. These international instruments enter into force 30 days after the deposit of two instruments of ratification. ** Not in Force.

= Ratification

S = Signature

A^= Accession

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Justice and the Internationalization of the Law

Tomas de la Quadra-Salcedo Minister of Justice of Spain

The function of systems of law is to regulate disputes that arise in society and bring them to peaceful settlement. The geographical-political framework of a society regulated by a given legal system has come to be referred to as the state. Our notion of a legal system is tied to the model of the state as the geographicalpolitical setting in which the life of our society unfolds. Hence the notions of a legal system and state sovereignty are not easily dissociated. Until not too long ago this conceptual scheme corresponded exactly, in most cases, to the actual configuration of the social structure. This was so because traditionally, and with the usual exceptions, states had been based on a uniform geographical, racial, linguistic and cultural structure. Indeed, this structure, in addition to being uniform, was clearly differentiated from the other state structures recognized as such. We all knew that to be Spanish was different from being French or Italian and that being Mexican was different from being from the United States. Hence there arose a close correlation between state sovereignty, the legal system, and the economic and social orders: these constituted three juxtaposed and almost congruent frameworks. Societies took on very different features from one state to another, and economic activities and human and social flows were thus also different. A country's legal system responded to those specific features and shaped them. Apart from the great migratory phenomena, there was very little spillover from one society to another: social sedimentation was as intensive as social mobility was slight, and circulation was rare even within each state itself. A man's normal horizon was his place of residence, and it is no accident that in Spanish the place of origin of the individual is called his "patria chica," or "little homeland," by which it was meant that it was there that he would ordinarily lead his life. If anyone chose to change to another social setting, as did the thousands of Spaniards who settled in the Americas, he remained bound to his place of origin by ties of sentiment, but not by any economic or social bond. In the very recent past, however, things have changed radically. The progress of science and technology have made possible unimagined advances in transportation

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and communication. This phenomenon, which has been especially pronounced where economic development has been greatest, has in turn favored a profound transformation of society: economies, concepts, ideas, and even languages, are today interdependent and clearly internationalized. The prosperity of the worker, merchant or entrepreneur of Catalonia, Argentina or Bolivia no longer depends only on his own capacity for work and the circumstances of his immediate surroundings: it also depends on what happens thousands of miles away, on what is done in other countries by people who speak other languages and engage in other pursuits. Legal systems cannot fail to respond to this profound transformation of social reality. The law is certainlyâ&#x20AC;&#x201D;as we are all awareâ&#x20AC;&#x201D;one of the most slowly evolving branches of knowledge, which is probably due to its function as guarantor. Other sectors that have other functions, notably the productive and economic sectors, are far more dynamic. Slow though the evolution of law may be, however, neither legal systems nor jurists can ignore these transformations of society. We cannot forget that the internationalization of social problems requires a response from the law. There is a very clear example of this irreversible dynamic: the internationalization of the European economies, which are very close to each other and strongly interrelated, led to the conclusion that a coordinated economic policy was needed. That coordinated policy has borne its first fruits in the European monetary system, the intended outcome being the disappearance of national currencies and their replacement by a single European currency. This process came about not through design of governments but in response to a need: when trade among the citizens of the EC countries became permanent, it was soon realized that economic actors should not have to bear the costs of the different exchange rates of their national currencies. Hence the internationalization of economies prompted a social demand for a unified response to problems that were themselves, in essence, unified. The same process occurs, if more slowly, with legal systems. Several examples may be mentioned. In civil law, for example, and more specifically in family law, the significantly growing number of marriages between citizens of different countries is giving rise to increasing difficulties in the regulation of separations and divorces, and of child custody in those cases, which can rarely or never be resolved by national legal systems. In trade law, it is well known that national legal systems are unable to respond on their own to the demands raised by now-common contracts between enterprises of different countries. And this is just one aspect of the effects of internationalization of the law in the field of trade law. There are innumerable complex problems created by unfair competition, which in some cases is favored by the protectionistic legislation of some states. A sense of the complexity of this phenomenon is conveyed by the fact that it may involve policies whose apparent objective is not related to unfair competition. Environmental and health policies, for example: for the stated purpose of protecting the environment, or of safeguarding the health of consumers, regulations may be established that have the actual effect of preventing the entry into one state of products originating in another. This technique is unfortunately so frequently used that the Court of Justice of the European Community has coined the phrase "measures of equivalent effect" to refer to those measures that, though ostensibly implemented to impose specific parameters for sanitary or environmental protection, are actually designed to restrict competition.

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To avoid this ruse, the Community has been forced to issue regulations and directives in fields apparently far removed from the initial aims of a common market. What does regulation of emissions polluting the air or rivers within the borders of each state have to do with the free circulation of goods? What is certain is that the Community's entrance into these matters has not been without expression of reluctance from some who understood these questions to lie outside the purview of the Community. However, these matters do not lie outside the purview of the Community. The environment cannot be a sovereign concern of the individual state, not only because one state's environment can affect other countries, but also because the different requirements imposed on polluting industries have the effect of changing the conditions of free competition. In fact, products manufactured under legislation that is relatively tolerant with regard to environmental damage are cheaper than those produced in countries with more exacting environmental regulations, this rewards disregard for the environment and penalizes countries that are more concerned about it. The end result is that the internationalization of economic and social relations eventually requires renunciation of the sovereignty of splendid isolation, and movement toward a sovereignty shared among all the states so that common guidelines can be issued for compatibilization of their laws. Thus internationalization ends in harmonization of laws in apparently distant spheres, and not merely in a collaboration between judicial systems that leaves legal systems untouched. The same can be said of criminal law, the most sacrosanct sphere of state sovereignty, which cannot remain unaltered by this process. We all know about the internationalization of criminal activity and organized crime and are aware of the need to internalize a response, if they are to be combated. Suffice it to mention the confusion produced in the citizen's mind when acts that are permitted in some countries are regarded as criminal in others. This inconsistency can be found in issues of deep ideological import, such as abortion, which is punished in some countries but legally obtainable merely by going to another country, in some cases only minutes away. In other less divisive areas, there seems to be little doubt that the legal security of citizens is harmed if writing a bad check, evading taxes, violating rules for protecting the environment, or engaging in certain monetary practices is criminal in one country and not in another. This is especially true if the acts are committed by a natural or legal person operating concurrently or successively in both states. Here, too, in this traditional stronghold and expression of the sovereignty of every country, we must take up the question of whether a rapprochement of laws is needed. Allow me to point out that in the European Community, for example, it has hitherto been recognized as an immutable principle that criminal law is solely the domain of national government. However, the Community's financial interests must be accorded some protection from fraud that could be committed against the Community by citizens in receiving entitlement payments or paying taxes. It is generally agreed that this type of fraud must be dealt with; the question is whether the response must be common and equal in all the countries of the Community. It seems reasonable that whoever defrauds the Community should be punished equally in every member state. But this logic of reasonableness could lead to distortions in

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some member states. In a country in which tax evasion is only an administrative infraction, it would be contradictory to make evasion of the Community's taxes a crime, and vice versa. The issue is clear: if the acts of European citizens are to be punished equally in all European countries, then we must yield some part of our sovereignty in this field to avoid contradictions in each country' s domestic law. Here, too, then, internationalization leads to a sharing of sovereignties, or at least to a harmonization of national laws. I have mentioned only some of the daily problems that arise out of the interrelationships of economic and social life and, I would say further, out of the slow pace at which legal systems evolve to adapt to the changes that take place in the real world. It is not a simple matter of theoretical problems, but rather of real difficulties that plague the citizens of different countries. Naturally, those difficulties arise more frequently in countries that, like those of the European Community, are more closely interrelated. Unquestionably, the European Community is today the most advanced example of supranational integration, but we are also witnessing an acceleration of the integration process among Mexico, the United States and Canada, and in South America as well. All these processes are creating a situation in which national borders are being blurred and losing definition as economic activity between countries grows more substantial and is accompanied by human migrations of enormous magnitude. The interrelationship is not only heightening the interdependence of economies; it is also increasing social mobility and slowly but surely changing patterns of behavior and social habits. Attitudes ranging from literary to gastronomic tastes and from trends in sports to those in motion pictures are influenced by, if not actually dependent on, those in other parts of the world. Language, culture, art, science and technology know little of frontiers. Jurists will have to work hard to follow the headlong pace set by these social transformations. Adaptation is not an option they may refuse at their whim; it is simply a necessity. Legal systems that are capable of keeping up with change, of evolving and adapting to these transformations, will survive; those that are not so capable will stifle the economic growth and productive and cultural development of their own countries, driving them into isolation, and will, sooner or later, come to be viewed as useless, and be discarded. Economic progress and social stability are today impossible without access to external resources, especially in countries such as most of those represented here that are not well endowed with resources of their own. An influx of foreign capital and stimulation of international trade are thus basic necessities for those who seek development. However investors and merchants require as a precondition to doing business in a particular country a legal framework with specific characteristics: it must guarantee them legal security, not needlessly or gratuitously hinder their operations, not impose too many administrative barriers, and its distinctive characteristics must not be so numerous or significant so as to make it impossible to operate ways to which those investors or merchants are accustomed. Capital and commerce require, in short, a system of basic and familiar features. Thus, adaptation of the legal system is not just a consequence of development, but also a precondition for it. Furthermore, development will be aided or hindered depending on whether a system is easier or more difficult to adapt. Hence, though the necessary control mechanisms must naturally be retained, the harmonization of legal systems will inevitably have to be intensified in order to assure a smooth circulation of the conditions for prosperity.

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The question posed by the internationalization of the law is thus not whether or not to face up to it, but how to adapt to it legal systems that have emerged in and for the national setting. The legitimate desire to preserve the sphere of national sovereignty can hardly be satisfied by an effort to raise a barrier against the tide, for this will only bring about the end of such sovereignty. The only possible attitude in this situation is to resolutely face up to the need to adapt our legal systems to the changes at work in the real world. To do this we will have to distinguish between that which must be preserved as reflecting what is specifically national and representative of a community's popular will, and that which is only a means to an end and as such may be dispensed with, and without loss of national integrity. As we know, a lively debate has sprung up in almost all the member states of the European Community centered on the fear that supranational integration will cause erosion of the peculiarities, ways of life, habits and values of the different nations making up that Community. Neither in Spain nor in France, and much less so in Great Britain and Denmark, is there any lack of those who see in European union a danger of the disappearance of distinctive national traits. On several occasions this fear has found expression in the law itself. I will add, however, that the issue so stated is spurious, because the possibility of our distinctive traits living-on in a wider setting, and enriched with contributions from others, does not depend on our ability to resist what is already an irresistible tempest, but on our ability to adapt and steer our vessels into the heart of the storm. The decision is not easy, but this path must be taken, because the desire to preserve everything leads only to the loss of everything and, what is worse, to the economic, cultural and social impoverishment, and the political isolation, of our peoples.

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Justice and the Process of Economic Integration

Dr. Francisco Villagran Kramer Member of the Inter-American Judicial Committee and the United Nations Commission on International Law

INTRODUCTION In modern times, one cannot conceive of a process of regional economic integration without legal and political mechanisms that guarantee the rule of law. Despite this, what has prevailed and, to some extent, still prevails in Latin America is the practice that separates and distinguishes between the mechanisms of resolution of disputes arising between the member states of the integration models and the legal remedies that the new socioeconomic dynamic demands. This approach has been and continues to be both partial and formal. Partial, because it did not and does not take into account that the dynamics of the economic, commercial and financial phenomena that are generated with economic integration and the entrepreneurial and labor activities that arise and develop within the larger space demand both a climate of security in terms of respect for the law and in terms of compliance with the undertakings assumed by the states and the certainty and confidence that justice will be administered equally in all the states that comprise the integration models. The attitude in the past and, to some extent even today, was that the requirement of justice in integration models by simply having mechanisms for the settlement of disputes and the resolution of conflicts was sufficient. The question was never posed as to whether these mechanisms were and are effective, efficient and functional and whether, in all the member states of the model, there exist, de facto and de jure, the same or similar parameters of justice. This led to a situation in which, on the one hand, international arbitration was maintained at the regional level as a means of resolving conflicts between states and, on the other, the integration bodies were given the responsibility of settling disputes arising between governments. The integration bodies could not, however, delve into the area of justice within each state, because this was deemed to come under the exclusive competence of each state. In other words, the state enjoyed restricted domain.

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The fulcrum of this theory had traditionally been Article 2, Paragraph 7 of the United Nations Charter and Article 1 of the Charter of the OAS. Article 2, Paragraph 7 states that no provision of that Charter authorizes the United Nations to intervene in matters that essentially come under the internal jurisdiction of the states. Article 1 of the OAS Charter provides that the OAS has no powers beyond those expressly conferred on it by the Charter, "none of which authorize it to intervene in affairs coming under the internal jurisdiction of the member states." The purpose of this principle is to safeguard that which is believed to be a component of the sovereignty of each state. The foregoing approach, considered traditional today, is losing ground and force with the growing internationalization of economic, social, cultural and political phenomena. It is also losing out due to the fact that states may agree among themselves on both the inter-connection of their markets, and the interpenetration of their economic and social—and even political—systems. The result being that, on the one hand, the area of restricted domain of the states is narrowing, while on the other, some state interests are becoming internationalized or regionalized, as their institutions interrelate. Given this situation, it is normal that these new phenomena should generate conflicts of interest and conflicts of a legal nature between the governments themselves, between private individuals and governments and between private individuals belonging to the same country or to two or more countries. To encompass changes in society the governments are thus under pressure to free the legal system from rigid national molds as new phenomena and, inevitably, old phenomena viewed from a new angle become part of a wider concept of justice. CREATION AND APPLICATION OF LAW AT THE REGIONAL LEVEL First of all, it is well known that when a group of countries creates a joint area of free trade for a certain number of products—or for all products originating in their respective territories—common market, or economic union in order to permit goods, services, capital and people to circulate freely among the member states without quantitative or qualitative restrictions, they simultaneously create a joint economic and legal space. This space corresponds to the territory of all the party states. Not only do the economic, social, political and financial processes that the governments aim to encourage and promote occur within this new space, but the rules that govern these processes also apply therein. Nonetheless, the respective national legislations remain in force. Thus, two new spheres emerge: one territorial and the other more far reaching. Both sets of law are valid and applicable to the new regional or subregional regulatory framework. This gives way to what is well known in international private law as a conflict of laws. Second, and insofar as these economic-legal spaces are created by and among sovereign states, these states make use of different international mechanisms, mainly treaties, conventions, protocols and agreements. Since these instruments are res inter aliae actae and establish rights and duties that directly bind the states and their bodies, they may, depending on the will of the states, also have an immediate and direct impact upon their domestic organization and be applicable to the states, their official bodies

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and individuals. In other words, they may benefit or harm both public and private interests. Thirdly, insofar as the states deem it advisable to restrict the integration schemes of which they are a part to an intergovernmental framework, they retain or preserve the power to create provisions secondary to or regulating the basic treaties. This power gives the states control over the decisions of the bodies created by these treaties, a control that is exercised through their official representatives within these bodies. In this way, they retain the necessary freedom to adopt new legal rules that will apply at both the regional and national levels. Hence it is the states that, by common agreement, create law, and that, by common agreement, resolve the problems that arise. The only restriction is that the legal norms adopted by the states generally require subsequent approval or ratification by the competent bodies in each state under the provisions of their respective constitutions. The system thus lacks legal dynamism. Naturally, governments may also agree to set in motion processes of matching or harmonization of laws, and to prepare model laws that require subsequent legislative action by each state in order that they enter into force. These model laws, however, do not require any fundamental change in the internal legislative process of each state. Likewise, the states are free to move in the direction of models that are politically and legally more advanced than the strictly intergovernmental ones. They may shift in the direction of supranational models or may make use of variants that are intermediate between intergovernmental and supranational. What is important to note is that, in shifting towards supranational models, some states may find themselves faced with confronting constitutional restrictions that limit the admissibility or means of incorporation in their territory, both of the legal norms created at the regional or subregional level and of the judgments handed down by regional or subregional courts. This is due to the well-known fact that there are national legal systems that establish constitutional restrictions designed to limit or restrict both the delegation or assignment of regulatory powers to the international bodies created by the integration treaties and the ability of this new body of laws to override national legislation1. This is understandable. On the one hand, countries dictate their domestic codes or laws as a function of their status and nature as free, sovereign and independent states, and not as states that join or participate in integration schemes. On the other hand, there is the consent given by states to permit the legal provisions created outside the scope of their authority by the bodies established in the economic integration treaties, to not only penetrate the domestic arena, but also to acquire binding force within said arena with erga omnes effects. This process occurs without the legislative powers intervening in what is regulatory in nature and scope.

In this regard see our Teoria General del Derecho de Integration (General Theory of Economic Integration Law). San Jose, Costa Rica: (EDUCA), 1969; Zelada Castedo, Alberto. Regional Economic Integration Law. Buenos Aires, Argentina:(INTAL-BID), 1989, and the bibliography of the latter. Likewise, Maza, Emilio. Origeny formation del Derecho Comunitario Andino. (Origin and formation of Andean Community Law). Caracas, Venezuela, 1975.

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INTERGOVERNMENTAL AND SUPRANATIONAL VARIANTS

As may be appreciated, this topic logically leads to an examination of decision making and the different mechanisms for creating law at the regional or subregional level. Thus, if the bodies created by the international treaties and agreements instituting any of the integration models such as free trade areas, common markets, customs, economic or monetary unions that are composed of, or include official representatives of the states, it is the representatives of the states who approve or adopt said acts by unanimity. Therefore in a manner of speaking, the state gives its consent to allow this secondary law to "penetrate" or if this is impossible, "be received" within its domestic code of laws and thus be applied in the form and manner set out in the basic treaty. However, in some cases it is the basic or framework treaties, as they are usually known, and in others, the national codes of laws that determine whether the secondary law will or will not require explicit incorporation at the domestic level in order to be directly applicable. Stated differently, the question is whether, as is the case with standard international treaties, the secondary or regulatory law of the framework treaty or treaties requires subsequent approval and ratification by the competent state bodies in order to be applied by public administrations and courts of justice. Likewise, these instruments usually stipulate the mode of publication to be used to permit the regulatory acts to acquire force at the regional level and within the states. Supranational and Intermediate Variants The problem takes on a different face when the basic rules established in the treaties instituting the integration models authorize the bodies created by the states to decree, issue or adopt the secondary law, not by unanimity, but by a majority vote. In this case, the states whose official representatives abstained from voting or voted against approval of the acts are compelled to accept application of this secondary law in their territories and even to allow the new law to repeal or amend their own secondary or ordinary legislation that is in conflict with it. The problem takes on a clearly supranational dimension when the bodies in question which are independent of the states, exercise these powers and their members are appointed or elected by the member countries of the association, as is the case of the Commission of the European Economic Community and the Board and Court of the Cartagena Accord or Andean Group.2 2 Cerex, Etienne. "Le Droit Europeen-Les Institutions" (European Law, Institutions). Leven, 1986; and Freestone, David. "The European Court of Justice" in Lodge, J. Ed., Institutions and Policies of the European Community. London: Francis Pinter, 1983. Pinelli, C. "La jurisprudencia de la Corte Constitucional Italiana en materia de derecho comunitario punto de partida para su reconstruccion" (Jurisprudence of the Italian Constitutional Court in Matters of Community Law as a Starting Point for its Restructuring). Revista de Instituciones Europeas and Revista Espanola de Derecho Internacional. Madrid, Spain.

The Intergovernmental Variant

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It is obvious that the different ways of creating secondary law take on legal and political relevance in that they go hand in hand with the institutional mechanisms of conflict resolution and the establishment of arbiters of legality. In this regard, when these arbiters are not provided for or established from the outset in the integration model, problems and conflicts arise between the bodies charged with creating this secondary law and the public administrations of the states. Problems also arise between regional bodies, states and individuals. The problems become even more acute when the regional bodies are empowered to resolve, by majority vote, conflicts arising between states or between individuals and states and when the disputes involve the application, nonapplication or interpretation of the primary and secondary law. These problems become clearer if we look at those cases where, as the states empower these bodies to create secondary law, they also empower them to arbitrate the legality of these acts. The end result of this phenomenon is that the supranational bodies exercise regulatory powers—in the creation of secondary law—and executive powers in the application of primary and secondary law and finally jurisdictional powers in the resolution of problems and conflicts arising out of the application, nonapplication and interpretation of primary and secondary law. In other words, there is a concentration of powers at the regional or subregional level. Of course, it should be pointed out that there are both decentralizing and centralizing tendencies in the field of creation and application of international law. Thus, in some cases, it is the member states of a given international structure that rule—through the means of a majority of votes—on the application, nonapplication or interpretation of the rules contained in the treaty or treaties and of the secondary law. In other cases, it is the jurisdictional structures such as Courts or Arbitration Boards, independent of the executive and administrative bodies, which resolve or settle this same class of conflicts.

As regards the arbiters of legality in Latin America, Jimenez de Arechaga and Paolillo Felipe, "Contralor de la legalidad en los actos comunitarios. Interpretacion del Derecho de Integracion. Proyectos y posibilidades en la ALALC" (Arbiter of legality in community acts. Interpretation of Integration Law. Projects and possibilities in LAFTA). In Derecho de la integration. Buenos Aires, Argentina: 1967, and Villagran Kramer, Francisco "Contralores de legalidad e impugnacion de los actos de los organismos de la integracion centroamericana" (Arbiters of legality and challenges to the acts of Central American integration bodies), in Derecho de la integration. Buenos Aires, Argentina: INTAL, 1969, PP. 141-155. Similarly, Morales Molina, H. "El Tribunal de Justicia del Acuerdo de Cartagena" (The Court of Justice of the Cartagena Accord). In JUNAC, El Derecho de la Integracion en el Grupo Andino, la CEE, el CAME, y la ALADI (Integration Law in the Andean Group, the EEC, the CAME and LAFTA), Lima, JUNAC, 1983. Sachica, Luis C. "El ordenamiento juridico andino y su Tribunal de Justicia" (The Andean code of laws and its Court of Justice). In El Tribunal de Justicia del Acuerdo de Cartagena (The Court of Justice of the Cartagena Accord). Buenos Aires, INTAL, 1985, pp. 5-26 and "La action de nulidad en el ordenamiento juridico andino (The action of nullity in the Andean legal system). Idem, pp. 47-68 and Uribe-Restrepo, Fernando La interpretation prejudicial en el Derecho Andino. Tribunal de Justicia del Acuerdo de Cartagena (Interlocutory interpretationin Andean Law. The Court of Justice of the Cartagena Accord). Quito, Ecuador, 1993, 47-68.

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For their part, jurists warn of the legal risks incurred by international structures that lack mechanisms for ruling on the legality of acts that are independent of the states and of the regulatory institutions of the integration structures. This warning arises because in some instances, either for pragmatic reasons or simply for convenience, the representatives of the states may unanimously adopt decisions contrary to the provisions of the basic treaties, with no mechanism or system for overturning these illegal decisions other than the body that adopted them. Situations such as these can lead to a particular type of illegality being approved and which, in addition, leave private interests without due jurisdictional guarantees. THE INTERPLAY OF PUBLIC AND PRIVATE INTERESTS—CONFLICTS IN PRACTICE It is a characteristic of legal systems of economic integration that when rights and duties involving dos and don'ts are established for the states, and even specifically for certain bodies of the states, rights and obligations involving dos and don'ts must also be established for private individuals. The interplay of public and private interests is, therefore, a very important element in these systems. The application and interpretation of common law between and among states and between states and individuals—whether using the variant of integration law or that of community law, necessarily generates and entails complex situations and conflicts. For this reason, it is desirable to make a distinction between conflicts between states, between states and individuals between individuals and whether or not they are members of the integration model. Likewise, conflicts between states and individuals and executive or administrative bodies of the integration models such as Councils, Boards, Committees, and so on, and so forth.3 Conflicts between Public Interests The problem with conflicts between public interests is that, in essence, they are conflicts between states. In other words, they are conflicts between two or more states and being directly related to problems of economic integration, can be resolved either 3

In this regard, it should be noted that in terms of bibliography, there are the studies conducted by the Institute for Latin American Integration —IDE-INTAL— under the direction of the Argentine jurist, Dr. Ecuador Pena, and in which the jurists Drs. Felipe Paolillo and Carlos Ons for Uruguay and Leonel Prado Rossotto and the Author from Central America, intervened in the discussion of LAFTA. Ref: Paolillo, Felipe and Ons, Carlos, "Estudio de los procedimientos de hecho utilizados para la solucion de conflictos en la ALALC" (Study of the procedures actually used for conflict resolution in LAFTA). In Derecho de la integration, No. 6. Buenos Aires, Argentina: INTAL, 1971. INTAL-IDB and "La solucion de los conflictos en la Integracion Latinoamericana" (Conflict Resolution in Latin American Integration). Buenos Aires, INTAL 1972. Also Bertrand Galindo, Francisco and others, "Comentarios sobre procedimiento para resolver conflictos en la Integracion Economica Centroamericana" (Comments on Procedures for Conflict Resolution in Central American Integration). In Derecho de la integration, No 3. Buenos Aires, Argentina, 1968.

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by direct negotiation or through arbitration and, of course, depending on the case and the circumstances, with recourse to pressure and economic retaliation. Here, the different systems for resolving disputes are brought into play. The differences between political and legal conflicts and between actionable and nonactionable conflicts dealt with at the theoretical level in international law do not necessarily present themselves within the context of regional or subregional economic integration. Naturally, one cannot exclude the emergence of political conflicts between states or legal conflicts concerning, for example, the definition of borders or of maritime boundaries. Hence the importance of defining limits and clarifying which conflictsâ&#x20AC;&#x201D;political and legalâ&#x20AC;&#x201D;do not, strictly speaking, belong to the area of economic integration and consequently are handled and resolved in a different manner, and which conflicts properly fall within the purview of integration.4 Naturally, it is not simply a question of "drawing a line in the sand," but rather of examining their elements in the light of the corresponding legal framework, as was recently done by Central American governments in approving the Statute of a new Central American Court of Justice on December 10, 1992 in Panama. On the one hand, Article 22 of said statute provides that the competence of the Court will include "hearing, at the request of any of the member states, of the disputes that arise between them. Exceptions include disputes concerning boundaries, territorial or maritime, for which a petition by all the parties concerned is required." On the other hand, Article 25 excludes from the competence of the Court the area of human rights, since this is within the jurisdiction of the Inter-American Court of Human Rights. In modern times, the models of economic integration and the different systems established in the integration treaties aim, essentially, at regulating and providing incentives for activities in the commercial, fiscal, industrial, freight hauling and monetary and similar areas. The models also deal with matters pertaining to the right to establish oneself and the conditions under which one may work or practice in the different countries. Similarly, they aim at preventing and prohibiting certain activities, such as unfair business practices, discrimination, etc. The range of areas and systems covered may be broad and diverse, or maybe limited. When the creation of a common economic space is undertaken, different criteria are employed, naturally taking into account that both the states and their nationals share a common interest. This common interest may well be economic growth and progressive integration of their economies or accelerated economic and social development, with the goal of spreading the benefits throughout the different structures and socioeconomic or sociocultural classes. By the same token, the common purpose may be less ambitious. It may be limited to providing incentives to mutual trade within the group in order to encourage interpenetration of markets, but not of economic systems or maybe limited to two or more countries. Thus, the states' motives for becoming part of an integration model, for bringing about changes within that model, or for dissociating themselves from it, are critical and lead to viewing conflicts from different standpoints.

Cours de Droit International (Courses in International Law). Paris, France, 1929, pp. 493 and 494.

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The arbitration procedure that has tended and still tends to be established in the treaties instituting economic integration models—as is the case with the Central American integration scheme under the General Treaty of 1960—is a conflict and dispute resolution mechanism that is almost never used. At the same time, conflict resolution by the bodies established in the treaties has been and continues to be more frequent. What has become obvious is that there are always nuances among the different conflicts at the state level. These nuances arise out of causes which may be strictly legal, or have roots or elements which are preponderantly economic, commercial or financial in nature. Finally, they may originate from problems that have simply remained unsolved over the years because of a lack of political will by one or the other party. The arbitration procedure implies setting in motion at the regional level the mechanisms provided for in the treaties. In some cases, recourse to the courts and to strictly arbitrational procedures results in a loss of time. On the other hand, conflict resolution through negotiation or through the so-called decision-making bodies of the integration model implies airing these conflicts and resolving them with the active participation of the interested governments. In addition, of course, there are the bodies that rule on the legality of issues that are used to resolve conflicts where there is specific provision that requires submission to arbitration.5 Naturally, since the range of possible resolutions of conflicts and legal disputes is so broad, we cannot be rigid in this area. This fact is emphasized in the Manual of Resolution of International Disputes prepared by the General Secretariat of the United Nations and approved in 1991 by the Legal Committee of the General Assembly. In this way, and with the exception of the case ofstricto juris arbiters of legality— the Court of the European Communities and the Andean Court and the Central American Court of Justice, when it begins functioning—it can be said that the tendency that has prevailed for many years in Latin America was the approach to and resolution of conflicts through direct means and through the executive and administrative bodies of the integration models. Today, on the other hand, there is a trend favoring the bodies that arbitrate legality. Mechanisms of Conflict Resolution and Retaliatory Measures Basically, the two forms of arbitration—direct and through the decision-making bodies of the integration model—are characterized by the emphasis placed on 5 Hernandez Alcerro, J.R. "Los conflictos en el Proceso de Integracidn Centroamericana. Teoria y Practica de un Arreglo" (Conflicts in the Process of Central American Integration. Theory and Practice of Settlement). In Revista de la Integration Centroamericana, No. 19. Tegucigalpa, Honduras: BCIE, 1976, pp. 53-62; Salazar Santos, Felipe. "Solution de conflictos en organizaciones interestatuales para la integracion econdmica y otras formas de cooperation economica" (Conflict resolution in interstate organizations for economic integration and other forms of economic cooperation). In Derecho de la integracion, No. 28, Buenos Aires, Argentina: INTAL, 1976; Halaperin, Marcelo. "Hacia el establecimiento de un mecanismo de solution de controversias en ALADI" (Towards the establishment of a mechanism for the resolution of disputes in LAIA). In Integracion Latinoamericana, No. 106, Buenos Aires, Argentina: INTAL, 1985, pp. 21-31.

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negotiation and the use of different mechanisms of pressure or coercion, including, as previously stated, reprisals and retortion. What is important in this respect is that the question of reprisals and retortion has yet to be properly resolved. On the one hand, the legal and political structure of the European Economic Community excludes reprisals among member countries, but leaves a narrow margin for retortion. This arrangement is due to the fact that there are effective mechanisms for conflict resolution between the states and between their most important interest groups. Thus, it is unnecessary to resort to reprisals, while of course leaving sufficient room for "discreet retortion." On the other hand, this does not mean that the EEC may not play the game of reprisals with nonmember countriesâ&#x20AC;&#x201D;for example, with the United States in the area of agricultural or industrial productsâ&#x20AC;&#x201D;or prevent its members, from resorting to these methods of their own accord. This is a practice that happens with some frequency. We may say, then, that the system of economic, commercial and financial retaliation exits when there are no mechanisms for conflict resolution or when they do not work effectively. The retaliation also occurs when the acts or omissions that give rise to the reprisals and the retortion do not fall within the competence of the bodies that arbitrate legality. This being the case, it may be said that there is still room for the use of reprisals. This was demonstrated by the court of arbitration in the case of the "Air Services Agreement" between France and the United States,6 which pointed out that reprisals must not be disproportionate, in that their purpose is to induce or force a solution to an existing conflict or conflicts through the peaceful means accepted or established between the parties. The acceptable options are thus of the most varied type, and include all the practices permitted de facto by the GATT legal system. The GATT's rules and "silences" thus constitute important points of reference for handling and resolving conflicts between the interests of different states. Bearing in mind these factors and these practices between and among states, political scientists point out that economic integration brings with it or sets in motion a constant process of negotiation. The equation thus becomes: Integration equals Negotiation. Governments negotiate for the adoption of provisions, for the application of these provisions and they negotiate for the resolution of the conflicts generated by the provisions. In short, there is a constant search for a quid pro quo that is more desirable or more appropriate. Legal parameters and criteria are of course used; however, as we have already pointed out, if the matter is not before a court of law, there is nothing to stop the conflict from being resolved through the creation of individualized norms, some of which may even be in conflict with the primary law. This can lead to the establishment of precedents stricto juris and precedents of convenience. It is evident that in this type of institutional model, private interests are set aside, or else viewed through the prism of public interests. Aside from the risk of paternalism in the public sectors' dealings with private interests, this means that the latter must organize themselves into interest groups in an effort to force governments or delegates of governments to take notice of them. This in turn gives way to the cataloguing or 'International Law Reports, 1979, vol. 54.

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classifying of private conflicts according to the scope and interests of the public officials who are responsible, or in response to the pressure brought to bear by the respective private interests. The clash between public and private interests can therefore not be ignored or disregarded. Conflicts Between Individuals and States Regarding the approach to and resolution of the economic and administrative conflicts between individuals and states, it is useful to remember that one thing is the situation that brings private national interests into conflict with their own government, that is to say, with the government of the country in which they reside or of which they are nationals. The interplay of private interests with those of third governments, which for them are "foreign governments", is another thing entirely. This topic merits discussion since economic integration has introduced important changes. Waiver of Prior Exhaustion of Local Recourses The classic rule of international law and the Calvo Doctrine is that a foreigner must exhaust all recourses afforded him or her by the national legislation of the respective country before appealing to international bodies. This implies, in the integration models, nothing more nor less than confronting the public administration of another state on its own territory, with the consequences that may ensue. Hence the fear by the private interests of one country when confronting the government of another country while at a disadvantage. The greatest fear is of reprisals by the other government against those private interests, or against the free movement of their goods, their assets, their capital, etc. In addition, there is the direct or indirect pressure that may be exerted on them by their own government that they not go ahead with or that they drop their "case" in order to permit the conclusion of agreements in which their government has a direct or indirect interest. Lastly, people lack experience and are not accustomed to handling this new type of situation. On the other hand, it is worth pointing out that at the international level, the diplomatic protection that states may extend to their citizens comes into consideration. In such cases, the ties of nationality or of residence, or the principal place of business of a natural or legal person, are what permits a state to take up the claims of its citizens or residents against another state or states. The requirements of international law are of course different in the case of legal persons, as was pointed out in the Barcelona Traction case before the International Court of Justice, which involved shareholders from Belgium, Spain and Canada and their governments.7 From the foregoing we can see the importance of ensuring in the models of economic integration the existence and application of the principle of national treatment in all the member states, for entrepreneurs and one-person companies, and for legal persons and capital investments. This is because the principle makes it 7

International Law Reports, vol. 46.

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unnecessary, in the majority of cases, to exhaust local recourses as a prior condition for making use of conflict resolution mechanisms, and for resorting to the arbiters of legality. Likewise, it becomes unnecessary to provide diplomatic protection within the integration model. However, in terms of effective administration of justice, it is one thing to state the principle of national treatment and another to implement it. This last issue is thus a matter deserving of consideration and assurances. Reparation for Damages and Losses What is unique about the international system when it applies to the liability of states is that any damage caused by a state or its bodies, through violation of a law established in a treaty, automatically gives rise to reparation. Within the legal models of integration, the problem is that the conflicts between the private interests of a country and the public interests of another frequently become conflicts between states. This scenario occurs without the use in most cases of the parameters afforded by international jurisprudence, among them, those applicable to damages and losses that the authorities of one country may cause or bring about to natural and legal persons of that and other countries. It is known that, when a state is responsible for an illegal act attributable to it, that state is liable and must make reparation. In other words, there is an obligation beyond ceasing and desisting from the acts deemed to be illegal and contrary to the treaties also to ensure restitutio in integrum. This translates into compensation for the damages and losses caused and suffered, satisfaction and the promise that there will not be a repetion of the acts.8 It was not without reason that the Permanent Court of International Justice ruled, in the case of the Chorzow factories: "Reparation must, to the extent possible, cancel out all consequences of the illicit act and restore the situation that in all probability would have existed if the illicit act had not been committed." An important point that must be raised involves stricto juris claims that noncitizens may bring against the public administration of another country in third countries that are members of the integration model, for violation of the primary law or secondary law pertaining to the integration model. It is often the case that private interests damaged by the acts of a government are compelled to evaluate the power factors described earlier, the seriousness and propriety of the public administrations and the courts of justice of the countries before which the acts are being contested and the expert advice given to them by their lawyers and their friends. In a high percentage of cases involving economic and commercial issues, the result has been and continues to be that the individuals lose their cases and experience the negative financial effects that losing entails. Reality demonstrates, therefore, that this is a weak link in the integrationist chain.

Reports of Rapporteur Professor Gaetano Arangio Ruiz, of the United Nations Commission on International Law, Geneva, Switzerland, on the International Responsibility of States. New York, 1985-1992.

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The spectrum of conflicts between private parties includes both domestic conflicts, that is to say, those arising within the boundaries of a particular country, and those arising at the regional or subregional level. Once again, these disputes cannot be limited to conflicts that are strictly between individuals. They also include those arising between private parties and governmental and paragovernmental agencies under private law or, even under public law, as said agencies and the state itself operate within the sphere of private law. In such cases, it is advisable to keep in mind the difference between jus imperium and jus gestionis. This is a field in which significant changes have been occurring, changes that have led to the narrowing of the area of immunity from jurisdiction that the state and corporations under public law have enjoyed up until now.9 Inadequacy or Nonexistence of Competent Forums The heart of the question that so frequently arises is the inadequacy or nonexistence of competent forums in which the various types of conflicts, or the situations generating the conflicts, may be resolved. While the foregoing may appear to be part of a strictly legal preoccupation, we must point out that the experience of many lawyers and government officials has shown that in matters of economic integration, the treatment and handling of conflicts must take into account that certain conflicts, while actionable, nevertheless demand regulatory or even political solutions. The inadequacy and lack of jurisdiction of forums is, consequently, a matter of primary importance. On the other hand, there is of course the problem of applicable legislation. It is well known that in cases that include factors and elements of an international character, it is necessary to apply both the international treaties and conventions binding on the states, and the rules of international private law set out in the national legislation applicable to each case. Conflicts and Applicable Legislation These matters take on a very different dimension, however, in the case of integration models since, on the one hand, there is the framework treaty or treaties that apply to and within the integrational model and any applicable secondary law that may have been issued; and then there are international treaties that regulate matters in specific areas. And on the other hand, there are the domestic laws of the member states of the integration model and the rules of international private law that define the applicable legislation in each case. The other side of the coin is insufficient regulation that results in extremely complex clashes between private interests, and between private interests and the state 9

Report and project of the United Nations Commission on International Law entitled, "Informe y Proyecto sobre las Inmunidades Jurisdiccionales de los Estados y de sus Bienes" (Jurisdictional Immunities of States and their Assets). (GDI). United Nations General Assembly, 1991 and 1992.

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or the integration bodies. The problem is not necessarily solved through a regulatory hierarchy that allows the so-called loopholes to be closed and laws to be refined. The problem is that conflicts arise or present themselves precisely because of the absence or inadequacy of provisions in many areas. Hence, it is not a question of application or interpretation of existing law but of a vacuum that is the fault of the bodies with regulatory power, insofar as these latter have failed to issue or approve the required regulations, and the parties affected are unable to compel it to do so through available legal recourses. The European Community Model The European Economic Community offers a model that is well worth examining. In the form of a very brief synthesis, let us say that the Europeans have made significant progress in clearly establishing: 1) the legal concept of the division or distribution of competencies between the Community and its bodies and the member states and their respective bodies; 2) the areas that by their nature come under the purview of Community law both primary and secondary and those that come under the domestic law of the member states; 3) the supremacy, both at the Community level and within the states, of Community law over domestic laws; and 4) the uniform application and interpretation of Community law—both primary and secondary—throughout the Community area in a way that prevents regulatory disorder and legal shifts. We can say that, with these parameters, the problem of competent forums for the settlement and resolution of conflicts between private parties and between these latter and the states, when the states are acting jus gestionis, is enormously simplified. However, some facts are worth noting, among them, the existence of institutional structures at the European regional level with well-defined functions and competencies that enable lawyers and businessmen to determine which matters fall within the Community' s competence and which belong to the sphere of domestic law. We should also note that the competency of Community bodies, among them that of the arbiter of legality—the Court of the European Communities—and that of national public administrations and national courts, greatly simplifies the task of lawyers. Lastly, there is the so-called supranationality, which is based on a system of checks and balances and which is worthy of our attention. First, because the states took back a reasonable margin of freedom to make certain fundamental decisions. Second, because the Community bodies were clearly differentiated as executive, judicial and quasi-legislative, establishing different political, legal and accounting controls. Thus, if the states assigned or, if you like, delegated executive powers to the Community Commission, including the power to create secondary law with erga omnes effects, it was because they had already established an arbiter of the legality of the acts of said Commission and of the states themselves. In turn, there is the European Parliament, which has budgetary and political powers, the latter of which include the mechanism of confidence or nonconfidence in the members of the Commission. The recent referendums in Denmark and France on the Maastrich Treaty illustrate the degree of sophistication of the Community phenomenon and its supranational character. Thus, it can be said that individuals in Europe enjoy a legal system that affords and guarantees them procedural safeguards. This is essentially because the model is

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compatible with the commitments made by the EEC member states in their capacity as members of the Council of Europe to the preservation and maintenance of democracy and full respect for human rights (Articles 3 and 8 of the Statute of the Council of Europe adopted on May 5,1949, and the European Convention on Human Rights), a matter that is frequently neglected in Latin America. What stands out, therefore, is that the ground rules and principles shared by the EEC member states are directly related to the so-called due process of law. In this way individuals are assured the right of recourse to authorities and courts which have been guaranteed independence and impartiality. They are also guaranteed competent forums in which all parties can exercise their rights and contest the actions not only of their own administrations and authorities, but also those of the regional administration. The most recent testimony as to the penetration of these boundaries within a trade and integration model is offered by NAFTA—the North American Free Trade Agreement—between Canada, Mexico and the United States of America and is confirmed by the extraordinary steps and measures taken by Mexico in this direction at the beginning of negotiations for this treaty. The European model certainly had an influence at the time of the creation of the Andean Court in the decade of the seventies, and of the Central American Court of Justice in the nineties, and is therefore a factor of the highest importance in the development of arbiters of legality on the American continent. Naturally, there are differences between the European Court and the Andean and Central American Courts, even though all of them have the competence to hear interlocutory disputes, an extremely valuable role, in addition to its consultative function. The consultative function of the Central American Court, includes a particularly noteworthy feature, namely that the consultative opinions of said Court are binding among the states based on Article 24 of its Statute. Naturally, the sphere of action originally available to private interests is tending to broaden in Latin America. However, the trend to formalism tends to obscure the close relationship which must be ensured between the mechanisms of conflict resolution, including the arbiters of legality, and the fundamental principles of due process. The area is, therefore, deserving of examination by judges and lawyers without of course excluding political scientists. Execution of Foreign Court Rulings As regards enforcement of the rulings of national courts in the member countries of integration models, it is worth reflecting on the fact that in many such models, although progress has been made, or is being made, in the direction of free circulation of goods, services and capital, the decisions of the national courts continue to be subject to the traditional mechanisms that have been established over time. This being, excecuatur, conflicts with domestic codes of laws, and so on. It is evident that in this area, as in the case of exaggerated bureaucratic requirements, a good dose of pragmatism is needed. Above all, it is necessary to review the criteria for safeguarding state sovereignty contained both in treaties and in national legislations. It is clear that the tendency today is no longer to have laws reflect a lack of confidence in the courts and administrative authorities of other countries, but rather

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to respect their decisions, while the interested parties still retain their right to challenge these acts in the competent forums. This is even more important when these countries seek an interpenetration of their markets and harmonization or standardization of their legislations. It is precisely in the last of these cases that the contradiction is most apparent. There may be a uniform law among a group of countries; however, the judgments handed down by the courts applying that uniform law require the prior permission of the courts of the other countries in order to take effect in those countries. One must then ask whether or not the process of "review" by a court of the judgments handed down by the courts of another state is compatible with a model of economic integration. It may thus be inferred that the key element in the resolution of conflicts between individuals and states, individuals and the bodies of an integration model and strictly between individuals, lies in the commitments that oblige states to guarantee the exercise of basic rights established in international and regional human rights conventions. These rights include among others, those related to due process and the right to demand the establishment of competent forums to resolve these conflicts. (Articles 1, 2, 8, 24, and 25 of the Inter-American Convention on Human Rights). An interrelationship between the regulatory body of an integration model and the international instruments that guarantee respect for and observance of human rights must therefore be viewed as part of the structures needed to guarantee the rule of law and justice. Given this, economic integration falls within the domains reserved for justice. JUSTICE AND REGIONAL ECONOMIC INTEGRATION The lack of effective mechanisms for resolving disputes arising between the governments of member countries of the free trade and economic integration models, in many cases combined with a lack of competent forums in which to settle the conflicts that arise between private and public interests and between different private interests, no doubt contributed to delaying the development of these models and prevented them from being strengthened and expanded. This phenomenon is more than evident and deserves a closer look. First of all, it cannot be ignored that the very small number of conflicts resolved in Latin America through the bodies of integration models during the decade of the eighties and the beginning of the nineties is not due to the fact there were no conflicts or disputes between governments, between governments and individuals, or between individuals. It is due, in some cases, to declining economic activity and in others to the limited activity generated and occurring within the framework of the integration systems. The figures are there to see, and they are confirmed by the fact that all the Latin American countries have oriented their economies to exports outside the areas of free trade or economic integration to which they belong. Secondly, it is not that integration lost its impetus on its own or that it suddenly ceased to be attractive because exports to third countries not belonging to the integration agreement demanded this. The visible truth is that both public and private interests realized that conflicts were fewer in international trade outside the framework

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of the integration models; and that most of the conflicts that arose and that do arise could and can be resolved by observing the international rules of the game and by having recourse to existing mechanisms, both national and international. It is evident that the liabilities of individual or collective companies that began to experience losses nevertheless remained tolerable for those interests. Lastly, the public and private interests that up to now have remained active at subregional levels have had to learn to maneuver in sui generis environments, where the rules of the game change frequently, where regional and national regulations are subject to radical changes, and where lawyers are reluctant to bring their clients' cases before the courts or even to request protection. In many countries the judges themselves show little enthusiasm for settling conflicts that require the application or interpretation of international treaties that regulate complex economic, industrial, commercial, fiscal, customs or similar matters (matters which are often not covered by civil and commercial codes), or even for applying regulations adopted at the regional levels by the bodies established in said treaties. Even the Andean Court has not escaped. This phenomenon has had its ups and downs in recent years, and its experience should serve as a reference for the Central Americans before the new Regional Court begins to operate. We do not need to exclaim like Hamlet: "There is something rotten in the state of Denmark!" but we do need to reexamine the facts in the light of theory and reality. We must ask ourselves what role is played today, on the one hand by Justice with a capital "J", and on the other, by the persistence of some of the "old rules of the game" that have led to the spread of corruption, immorality and lawlessness. And so the whole question must also be examined in the light of these negative elements and factors. It cannot be denied that integrational initiatives have been studied for years from different perspectives, though not from a standpoint of justice. The premise has been that it is national systems that administer justice and therefore the interests generated by integration and those others that are affected or damaged by integration will find justice in the guarantees afforded by national laws. As a result of this thinking, the attention of jurists and politicians has not focused on the legal remedies that should be guaranteed or established in domestic codes of laws, but rather on regional structures, in which in many cases idealism, and in others an exaggerated formalism, have been the rule. The balance sheet is, therefore, not entirely without its negative side. If this were not the case, we jurists would not now be examining the relationship between integration and justice. By the same token, it is important to realize that certain evils that had been dogging Latin American societies in limited fashion have been multiplying at incredible rates in recent years, in the same way new ones emerge. Corruption and lawlessness have become topics of increasing concern in different circles. The worst part of it is that many societies have felt compelled to seek alternative mechanisms in order to ensure and guarantee justice. Some, such as private arbitration are, of course, compatible with existing legal frameworks, while others, such as "faceless judges," have become necessary in order to protect the lives and safety of the persons acting as judges. At the same time, there is a movement toward the creation of international jurisdictional structures and trial mechanisms to judge specific criminal acts, such as traffic in narcotics and psycho-

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tropic substances, international terrorism, hijacking of ships and aircraft, kidnapping of diplomats and traffic in minors. It is a question, therefore, of introducing new elements and seeking new options to benefit justice and economic activities. At this stage, one sees clearly the difficulty and complexity of providing incentives for economic activities in societies that are seeing a deterioration of their legal institutions, and it becomes easier to explain how all of this affects the area of economic integration. Today, added to the financial risks incurred by investors and private companies are the apprehensions which arise at the regional level. Among these, one which receives frequent attention is the legal apparatus and the way in which justice is administered in the countries where one hopes to make investments or set up businesses. Hence the renewed interest in Justice. It is in this context that procedural safeguarding of human rights takes on relevance. What is revealing is that the international instruments for the protection of human rights have been in place in Latin America since the decade of the sixties. We are not pointing an accusing finger. However, among jurists, it must be realized that neither the Bar Associations nor the Attorney Generals' Offices have brought these instruments to bear or used them to oppose the instruments and mechanisms of economic integration and force governments through legal channels to adopt and codify the legal remedies needed to deal with these new realities. In retrospect, we must also admit that good faith has been lacking in legal circles. Today this same good faith, with a strong admixture of realism, is showing us that integration can only progress hand in hand with democracy and justice.10 The fact that the American Declaration of Human Rights and the Inter-American Convention on Humans Rights are in force allows us to move confidently forward, since they clearly state that "every person has the right to be heard, with the due guarantees and within a reasonable period of time, by a competent, independent and impartial judge or court," for the purpose of determining their civil, labour, fiscal or other rights and obligations. Likewise, "all persons have the right to simple, rapid recourse or any other effective recourse to the competent judges or courts to protect them from actions which violate their basic rights." In addition to this, the states, for their part, have undertaken "to develop the possibilities of legal recourse" and "to guarantee compliance, by the competent authorities, with all decisions in which the said recourse has been deemed justified." The aforesaid rights and duties are not limited to the national or domestic spheres but extend to and apply in any other sphere or space established by the states that are parties to these instruments. Thus, they are applicable and enforceable within the framework of the economic integration agreements and conventions.

See, among others: Schermes, Henry G. Judicial Protection in the European Communities. Kluwer, Deventger, 1979; Toledano Laredo, Armando. Integration et Democratie. Universite de Bruxelles, Brussels, 1982. Villagran Kramer, F. "Defensa de la Democracia en el piano regional y subregional. Reformas a la Carta de la OEA" (Defense of Democracy at the Regional and Sub-Regional Levels. Amendments of the OAS Charter). Guatemala: Impresiones Selectas, S.A., 1992. Also article 3 of the Protocolo de Tegucigalpa a la Carta de la ODECA of December 13, 1991.

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A COMPARATIVE STUDY OF THE ADMINISTRATION OF JUSTICE

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The Administration of Justice in Argentina, Bolivia, Ecuador, Jamaica, Mexico, Panama, Paraguay and Uruguay

Universidad Externado de Colombia INTRODUCTION This document was prepared by the Faculty of Law of the Externado University of Colombia, Bogota, under an agreement concluded with the Inter-American Development Bank (IDE). It presents a comparative study of the legal and procedural systems for the administration of justice in eight countries: Argentina, Bolivia, Ecuador, Jamaica, Mexico, Panama, Paraguay and Uruguay. It highlights the most widespread problems in those countries and the salient characteristics of their individual systems, naturally taking into account of course the major ongoing reforms. It also puts forward a number of recommendations, some general and others specific, which the group considered to be relevant. The study presents a comprehensive picture of the situation in the abovementioned countries, which represent some 30 percent of the Latin American and Caribbean members of the IDB. It is intended to serve as a basic discussion document for the proceedings of the Seminar on "Justice in Latin America in the Decade of the 1990s. Challenges and Opportunities," to be held in San Jose, Costa Rica, in February 1993. The study was prepared by a team made up of teaching staff of the University and research workers comprising Aida Patricia Hernandez Silva, Juan Carlos Henao Perez, German Silva Garcia and Ramiro Bejarano Guzman (leader), under the supervision of the Rector, Fernando Hinestrosa. Execution of the study involved not only travel by some of the team members to Argentina, Bolivia, Ecuador, Paraguay and Uruguay but also consultation of the abundant bibliography on the subject and the invaluable help of professors and other experts in the various countries. A great many people took an interest in the success of this work, all of whom receive well-earned mention in the annexes to this document. They include in particular those who kindly furnished valuable consultation material: Professors Fernando de la Rua and Roberto Berizonce of Argentina, Juan Issac Lovato of Ecuador, Chester Orr of Jamaica, and

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Enrique Vescovi of Uruguay. To all of these the Externado University of Colombia offers its thanks. Bearing in mind the IDE' s suggestions with regard to the length of the document, the subject is dealt with in two parts. Part I describes the judicial and procedural systems of each country, including references to the nonjudicial agencies and the alternative mechanisms for the settlement of disputes. Part II draws attention to the most acute problems that arise in the countries studied. Both parts include references to the major reforms plus recommendations proposed by the research team that prepared this document with a view to resolving some of the problems identified. This study provides an overview of the problems that affect the administration of justice in the countries studied, except for the areas of penal and criminal summary and court proceedings. Like any research project, it forms a starting point for future inquiries. Reference to penal justice was omitted in consideration of the wish of the organizers that the Seminar focus mainly on the other areas of justice that to date have not been examined in the study of justice systems in Latin America and the Caribbean. There was no intention to disregard the overwhelming and painful conflicts that afflict penal justice in most of the countries, which continue to merit a great deal of attention, but rather to devote our efforts to studying and describing the situation and problems of the other areas of justice. Nonetheless, in pursuit of this latter purpose, reference was necessary in some parts of the study to certain aspects and difficulties of penal justice. It should be borne in mind that constitutional reforms are currently under way in Argentina, Bolivia, Ecuador and Jamaica that, if they come to fruition, could alter some of the information provided in this document. Since Ecuador appears to have progressed furthest toward completing the process of reforming its Charter, the suggested changes affecting the administration of justice there are given fairly close attention. DESCRIPTION OF THE ADMINISTRATION OF JUSTICE SYSTEM Although describing a country's system of administration of justice might appear to be a simple exercise, simultaneous and comparative description of the systems of several countries can at times be a huge task, especially when the differences outnumber the similarities. Of the eight countries covered by this study, grouping on the basis of shared geographic area or adjacency in the strict sense is feasible only in the cases of Argentina, Paraguay and Uruguay. The proximity of Bolivia and Ecuador does not in itself make them sufficiently representative of a given zone, especially since a draft reform of the Constitution is under discussion in Ecuador, which, if approved, will alter the regulations that govern the administration of justice there. For their part, Jamaica, Mexico and Panama are found to be insular nations in this sense. In the special case of Jamaica, it has to be borne in mind when comparing its judicial system with that of any of the other countries studied here, that Jamaica forms part of the Commonwealth, whose political structure is founded on the postulates of a constitutional monarchy. In this system the supreme authority is the Queen of England. There is also a Governor General, who is Head of State, and a Prime Minister,

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who is Head of Government, operating within an unlegislated judicial system that belongs to the common-law family. This fundamental difference means of course that not all the comments concerning the other seven countries apply to Jamaica. For a number of reasons, ranging from political to juridical, the area formed by the three southern countries does not lend itself to a regional study. This is so because its conclusions would not serve to depict a uniform legal system with variants in one or the other country but, on the contrary, three autonomous forms. These three forms are more representative in the context of the present study, which is better able to highlight differences and similarities by examining them within the framework of the whole set of eight countries. Against this background, and in view of time and space constraints, the study describes the judicial systems on the basis of four structural pillars by reference to which it seeks to bring out the major features of the systems in the eight countries. These four structural pillars are (i) the judicial agencies, which by definition are the components of the system; (ii) the nonjudicial agencies, which, although they do not normally perform the public function of administering justice, do influence and underpin it; (iii) the procedural systems, an understanding of which is essential to any examination of the mechanisms and principles that operate in each of the countries; and (iv) the jurisdictional division into ordinary and special courts, in light of which we can assess how each state distributes jurisdiction among its courts. The universal tendency to appoint older persons to the highest posts and offices in the administration of justice is noted in the eight countries studied here: all impose a minimum age requirement on candidates for the office of justice or judge. In Argentina it is 30 years; in Panama, Mexico, Bolivia and Paraguay 35 years; and in Ecuador and Uruguay 40 years. Finally, concerning the candidates' academic and professional requirements and ethical qualities, the national Constitutions of all the countries require that they shall not only be qualified lawyers but shall also have practiced the profession, with good standing, for a prescribed minimum period (5 years in Mexico, 8 years in Argentina, 10 years in Bolivia, Jamaica, Panama, Paraguay and Uruguay, and 15 years in Ecuador) and shall not have forfeited exercise of their civil rights. Sometimes alternative requirements are authorized: the academic requirement (10 years as Professor of Law in Panama, 15 years in Ecuador); past service in the judiciary (10 years in Panama, Bolivia and Paraguay) or entities connected with the justice sector (8 years as agent of the Attorney General's Office (Ministerio Publico) or the Public Prosecutor's Office (Fiscalid) in Uruguay); and past residence in the territory where justice is to be dispensed for the five years prior to appointment (Mexico). The method of appointing a Judge (Magistrado) or Justice (Ministro Juez) of the Supreme Court of Justice differs from one country to another. A factor common to them all, however, is that the appointment is not an act of co-option but one in which other authorities are involved. In most cases Supreme Court justices are chosen by Parliament at the request of the Executive Branch (Argentina, Mexico, Panama, Ecuador) or of the Higher Council of the Judicature or with the prior agreement of the Executive Branch (Paraguay). Exceptionally, selection may be made by Parliament alone (in Bolivia, by the vote of two thirds of the Chamber of Deputies, from a list of three transmitted by the Senate; in Uruguay, by two thirds of the votes of the General

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Assembly). In Jamaica the Chief Justice of the Supreme Court of Justice is appointed by the Governor General at the direction of the Prime Minister following consultation with the Leader of the Opposition. The term of service of judges elevated to the high office of Justice of the Supreme Court varies from country to country. It is 10 years in Bolivia, Panama and Uruguay, 4 years in Ecuador and 5 years in Paraguay (where a justice who has been confirmed for two terms cannot be removed until the age of compulsory retirement), with possibility of re-election, either immediate (Bolivia, Ecuador, Panama, Paraguay) or deferred (Uruguay, after the elapse of five years following retirement). In Jamaica there is a system of quasi-life appointment since justices do not serve for a prescribed term but hold office until the age of 65 years, except in the event of their resignation or retirement in extreme situations such as removal from office for improper conduct. The situation is rather similar in Argentina and Mexico, where justices forfeit their office only in extreme circumstances. In all the countries, the officials at these upper levels of the administration of justice enjoy a certain stability of office that might sometimes suggest that they are immune to removal; however, they can be retired from office in certain, always exceptional, circumstances such as being sanctioned in disciplinary or penal judgments or being of advanced age. Alongside the judicial systems are the alternative mechanisms for settling disputes, such as conciliation, mediation, amicable composition, justices of peace or equity, and arbitration. Although they sometimes involve the performance of judicial functions, these are primarily intended to settle disputes outside the actual structure of the designated judicial authority. Judicial Agencies Because they belong to the judiciary, all these agencies possess the common characteristic of performing the public function of administration of justice. The eight countries studied are no exception to the general rule that the administration of justice is subdivided both vertically (into tiers) and horizontally (into divisions). A general characteristic of the general structure of the judicial systems is that in all eight countries there are at least three institutional tiers: the Supreme Court of Justice; the Higher Courts (Tribunales) and the Lower Courts (Juzgados). Although in the case of Jamaica their designation is not exactly the same, the entities responsible for the administration of justice are ranked hierarchically despite the different political system. Hierarchical Heads of the Systems of Administration of Justice At the apex of the judicial structure, in all eight countries, we find a Supreme Court of Justice, in some cases as the sole maximum authority and in others sharing this primacy with other agencies. The sharing of responsibilities in the latter case is done for reasons of distribution of responsibilities. In Jamaica, however, because of its special political system, there exists the possibility of final appeal to Her Majesty in Council.

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In all eight countries the Supreme Court of Justice is the source and font of the system of administration of justice from which the exercise of dispensing justice originates. In the eight countries, a candidate for the office of Justice of the Supreme Court must meet certain common requirements with respect to ethical, professional and academic qualifications, be of a prescribed minimum age and, as a rule, be a national of the respective country, either exclusively by birth (Argentina, Ecuador, Mexico, Panama, Paraguay, Uruguay) or by birth or origin (Bolivia). The number of members that the Supreme Court of Justice comprises is not the same in all eight countries; indeed, it varies widely, from five in Uruguay to 16 in Ecuador. The most common number is 9 (Argentina, Panama, and Paraguay); Argentina also has a Public Prosecutor (Procurador General). There is no direct relationship between the number of Justices and the country's population. For example, it is not clear why countries with such different populations as Argentina, Panama and Paraguay have the same number of Justices. In Jamaica the size of the court is defined by a law enacted by Parliament. Nor is there any uniformity in the description of the functions performed by the Supreme Court of Justice. However, it can be said that these are usually divided into judicial functions proper and administrative functions. The most important of the judicial functions is that of oversight and custody of the National Constitution. The Supreme Court performs this function in Argentina, Bolivia, Mexico, Panama, Paraguay and Uruguay; it is also, in all eight countries, court of judgment in matters of special jurisdiction. As for other judicial functions, one observes that in a number of countries the Court performs the function of court of cassation (Argentina, Bolivia, Ecuador, Panama, Paraguay and Uruguay) and also of court of review, although this recourse may be limited to specific matters, as in Ecuador, where it is restricted to penal proceedings. However, these functions are not limited to hearing and ruling on special appeals, since in some cases the Court can hear appeals for reversal (Argentina, Paraguay)—acting, in the case of Ecuador, as a court of third instance—depending of course on the procedure under which the proceedings arose. In those countries that have a federal judicial system (Argentina, Mexico), it is logical and understandable that the Supreme Court be responsible for ruling on disputes arising between states or provinces and between the central and state governments. Turning to administrative functions, here again differences exist from one country to another, although there are greater similarities. Thus, while in some countries the Court is competent to administer the budget of the Judicial Branch (Bolivia, Ecuador, Uruguay), in others only to draft it (Panama) and in yet others to perform both functions (Mexico), it is in one way or another required to involve itself in the budget process. In some countries (Ecuador, Mexico, Panama) the Supreme Court of Justice performs a variety of administrative functions as well. In Ecuador, these functions are so numerous that the Court is divided into Administrative and Supervisory Commissions, each with three or more members, whose duties include dealing with complaints and claims filed by citizens, regulating all aspects of the budget and structure of the Judiciary, issuing internal regulations, granting permits, judging all members of the Judicial Branch, overseeing, through periodic unscheduled inspections of the judicial districts and, where necessary, imposing the appropriate penalties.

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In Ecuador a special meeting of Congress is planned to continue consideration of a draft reform of the Political Constitution of the Republic. This reform is based, according to its drafters, on the need "to modernize the administration of justice to enable it to operate more smoothly and efficiently and to provide it with the resources it needs to perform its functions." Included in the wide range of reforms of the organization and functions of the Supreme Court of Justice that are under discussion are: (i) transfer of certain functions currently performed by other authorities to Divisions (Salas) that would be created for the purpose; (ii) raising the prescribed minimum age for candidates for the office of justice from 40 to 50 years; (iii) election of justices by an affirmative vote of the National Congress by vote of at least two thirds of its members, following a report by the Legal Affairs Commission, for a term of six years with the possibility of unlimited re-election; (iv) presentation of equal numbers of candidates, according to the specialized fields set forth in the law, by the National Congress, the President of the Republic and the Judicial Branch; (v) provisional election of replacements until such time as the Congress fills vacancies; (vi) election of associate judges (conjueces) (who shall be prohibited from practicing law, by the vote of two thirds of the justices in office; (vii) election of 18 justices by the National Congress for the period 1992-98, corresponding to the Civil, Commercial, Penal, Social, Labor, Tax and Administrative Law divisions, and of the justice who shall replace whoever is appointed Presiding Justice; and (viii) an appropriation of three percent of the nation's general budget for the Judicial Branch for the years 1993 through 1995. Other Institutions for the Administration of Justice As noted earlier, the Supreme Court of Justice sometimes shares the supreme judicial authority with other entities to which are assigned responsibilities that pertain solely to the Court. Administrative Law Jurisdiction for administrative disputes lies with the Administrative Law Tribunal (Ecuador, Uruguay) and the Fiscal Court (Ecuador), which are separate from each other and independent of the rest of the judicial apparatus. The judges of these courts are appointed in the same way as Supreme Court justices, and they exercise maximum judicial authority in administrative matters. In exceptional cases there is a Constitutional Rights Court (Ecuador), which is autonomous and independent in its decisions. Its responsibility is to safeguard the integrity of the Constitution vis-a-vis regulatory instruments issued at the lower levels. It should be noted, however, that its functions (of exhortation, observation and suspension) do not include abolition of the offending provision but only the authority to suspend it and suggest that it be reissued in conformity with the Constitution. To that end it is established that, in the event of a violation of the Constitution, "the Tribunal shall submit its ruling to the National Congress for decision" and that, in the event of violations by the authorities, it shall communicate its opinion to them, along with a request that the activity in question cease. The draft reform of the Constitution currently under discussion in Ecuador, referred to earlier, proposes to abolish the Tribunal for Constitutional Rights and the Fiscal and Administrative Law and replace them with Divisions of the Supreme Court of Justice.

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Below the Supreme Court of Justice, or below the Administrative Law Tribunals established in some countries, there are the Higher Tribunals (Panama, Paraguay), Higher Courts (Bolivia, Ecuador), Appeals Tribunals (Uruguay), Courts of Appeal (Jamaica), and Collegiate Circuit Courts and Unitary Circuit Courts (Mexico). The ordinary function of these bodies is to serve as appeal courts for judgments of the lower courts (Bolivia, Ecuador, Jamaica, Mexico, Panama, Paraguay, Uruguay). However, they may act as courts of first instance in matters covered by a special code or jurisdiction (Bolivia, Ecuador, Panama) or those that involve habeas corpus petitions or the protection of constitutional rights (Mexico). The judges of these courts are appointed by the superior courts (Ecuador, Mexico, Panama), by the joint will of the superior court and Parliament (Bolivia, Uruguay) or by the Judicial Service Commission (Jamaica). A candidate for the position of judge must meet basically the same requirements as a Justice of the Supreme Court except for a shorter minimum time spent in the exercise of the legal profession or the performance of duties (Ecuador, Mexico, Panama). In all cases, a candidate must be a citizen of the respective country to be a lawyer and to be entitled to exercise civil rights. Below these courts are the Circuit Courts (Panama), the District Courts (Mexico), the District (Partido) Courts and Examining Courts (Bolivia), the Ordinary Courts (Uruguay) or simply the Courts (Ecuador, Paraguay, Jamaica). As a rule (except in the case of Panama), these courts form the base of the judicial system, are responsible for settling the great majority of legal suits, and are grouped into subject categories. These divisions may be according to specific jurisdicta (family, mining law in Bolivia; traffic, lease law in Ecuador; penal, administrative, labor, civil, agrarian and specialized law in Mexico), but courts are basically divided into civil and penal jurisdictions (Bolivia, Ecuador, Panama, Uruguay). In some cases there are municipal courts (Panama) or magistrate's courts (Jamaica, Uruguay) (below the courts discussed in the previous paragraph) that are responsible for smaller matters. In Argentina the Constitution creates a dual judicial order. "On the one hand, there is a national system of justice that operates throughout the Republic with respect to the hearing of matters referred to in Article 100 of the Constitution (federal competence) and all matters involving areas under the authority of the National Government. On the other hand, there is an ordinary or common system of justice that operates through the judicial agencies that each province is required to set up and to organize. This latter system of justice is free of participation by the central government and its competence encompasses the hearing of all matters governed by ordinary and local law, subject to the limitations set by Article 67 (11) of the National Constitution."1 In Argentina, in addition to the Supreme Court (Corte), there are three classes of national judicial agencies: federal, with seats in the various provinces, in the Federal Capital and in the national territory of Tierra del Fuego, Antarctica and the South Atlantic Islands; ordinary agencies of the Federal Capital, with seats in the capital and 1 Palacio, L. E., Manual de Derecho Procesal Civil (Manual of Civil Procedural Law), vol. I, new updated edition; Buenos Aires, Argentina: Abeledo Perrot, 1992, p. 148 ff.

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competence in ordinary matters; and qualified magistrates' courts (organos de paz letrados] of the above-mentioned national territory.2 In addition, there are the Federal Appeals Divisions, "which came to replace the Supreme Court in its appeal-court functions, which as regards the section courts, had been assigned to it by section 27"3 and the National Appeals Divisions. There are also lower federal courts headquartered in their respective districts, national courts of the Federal capital, and qualified magistrates' courts. In addition to the various courts mentioned above, there are magistrates' courts, which differ from the qualified magistrates' courts in that they are "under the charge of lay officials, with competence to hear petty cases and some voluntary suits," in all the administrative districts of the Province.4 Argentina's judicial organization, as described above, makes indentification of a common block or geographic zone comprised of Argentina and its neighbors Paraguay and Uruguaywhose structure in these respects is very different-impossible for analytical purposes. In Jamaica, in addition to the Supreme Court of Justice and the Court of Appeal, there are the specialized courts at the lower levels, the Gun Court and the Revenue Court. The latter is an entity ranking above the Petty Session Court, intended to deal with minor cases in the cities, and conducted by appointed lay magistrates or justices of the peace. Nonjudicial Agencies: The Attorney General's Office A constant in all the systems studied is the existence of an Attorney General's Office orMinisterio Publico, though it does not bear the same name in all the countries. The basic role of this institution, which is designed to be an "external authority (extrapoder}" and as such enjoys autonomy of decision (Mexico, Panama, Paraguay), is to represent the national, social or state interests and generally monitor compliance with the law. It is headed by an Attorney General or equivalent known as a Procurador General (Ecuador, Mexico, Panama) or Fiscal General (Bolivia, Paraguay) whose method of appointment differs from country to country. Ordinarily, the Attorney General is appointed by the President of the Republic, acting either alone (Mexico) or with the consent of the Legislature (Bolivia, Panama, Paraguay). Their term of office varies, and they normally enjoy immunity from removal during that term unless one of the exceptional causes for termination arises. The powers vested in the Attorney General's Office to enable it to perform its basic function vary. It is empowered to institute penal proceedings in all the countries, and in some of them possesses examining court authority in this area (Panama). It can also intervene in legal proceedings, not only in cases in which public persons are parties to a suit but also when the interests of society so require. In most of these cases the Attorney General's Office intervenes as an "impartial party." Although the functions noted are centralized in the head of the Attorney General's Department, this does not mean that the latter does not possess internal 2 3 4

Ibid., p. 148. Ibid., p. 150 Ibid., p. 164.

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divisions. In Panama, for example, in addition to the Attorney General, there are the Administration Attorney (Procurador de la Administration), the Assistant Attorney General or Public Prosecutor (Fiscal Auxiliar de la Republica), the Assistant Prosecutor of the Office of the Attorney General of the Nation, the Higher District Attorneys, the Circuit Attorneys and the Municipal Attorneys (Personeros Municipales), all of whom are subordinate hierarchically to the Chief of the Attorney General's Office. Note that in Bolivia these functions are fragmented among different state entities. In Mexico, in addition to the Attorney General (Procurador General), there is the Public Prosecutor (Procurador General de Justicia) of the Federal District. In Jamaica, the functions that belong to the Attorney General's Office in the other seven countries are performed autonomously by the Prosecutor and the Attorney General. It should be noted that the draft constitutional reform currently under discussion in Ecuador provides for an Attorney General (Ministro Fiscal General) and a Human Rights Attorney (Procurador de Derechos Humanos), both of whom are appointed by a two-thirds vote of the National Congress and who must meet the same requirements as a Supreme Court Justice. The Attorney General will be appointed for a term of four years and have such functions as shall be assigned to it by law. The Human Rights Attorney will serve for six years and be responsible for protecting, exercising, promoting and publicizing human rights. In Argentina, the Public Ministry or Attorney General's Department is divided into three branches, each with specific functions: the Fiscal Branch, the Juvenile Branch, and the Office of the Defenders of the Poor and the Missing. The Fiscal Branch is headed by the Attorney General of the Nation, who is appointed by the President of the Nation and must meet the same requirements as a Supreme Court Justice but does not possess immunity from removal. The Juvenile Branch is responsible for intervening in matters that involve minors or incapacitated persons or their property. Finally, the Defenders of the Poor and the Missing are responsible for representing the poor or missing persons in legal matters. The officials of the last two branches are appointed and removed by the Attorney General's Office. A draft organizational charter for the Attorney General's Department is also nearing approval in the Parliament in Bolivia. Entities Tied to the Administration of Justice A variety of institutions outside the Judiciary play a fundamental role in the judicial system. Some countries (for example, Paraguay) have a Ministry of Justice whose primary functions are to design government policy concerning the administration of justice and to run the country's detention institutions. In others, those functions are assigned to another ministry within the Executive Branch, which may be the Ministry of the Interior, which has an Under Secretariat of Justice for those purposes (Bolivia), or to a Special Commission such as the "National Council for Reform and Administration of the Judiciary" (Bolivia), or to the Ministry of Government and Justice (Panama). In Uruguay, the functions in question are not assigned to any special agency. There are also Judiciary Schools, whose main function is to provide basic and

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refresher training for staff of the Judiciary (as in Uruguay, where training is the responsibility of the Center for Judicial Studies, a transition agency that has not yet been institutionalized). Panama has a Judicial Council whose functions include providing for the training of Judiciary staff. In Paraguay, following enactment and approval of the recent constitutional reform of 1991, the expected changes in the organization of the Judiciary include precisely the establishment of a Judiciary School to train staff. To that end, the justices, officials within the Attorney General's Department, judges and public defenders in Paraguay have been discussing the possible organization of such a school in Paraguay. This discussion is occuring in light of the need that the school serve to promote staff retention and advancement and provide required training for entry into the service of administration of justice. On this matter, we consulted the study Modernization del Poder Judicial by Professors Ramiro Barboza, Luis Maria Benitez Riera and Jose Maria Cabral,5 which comments on various aspects of juridical information technology, the functioning of the Judiciary Council and the bases of the planned Judiciary School. Another work on this subject is Proyectopara la Escuela Judicial Paraguaya (Paraguayan Judiciary School Project) by the Colombian judge Miguel Sanchez Mendez (not yet officially published). The winds of change are blowing in Paraguay; not only for the political system but also for the judicial system and its proper and smooth functioning. The position of Public Defender, whose basic function is to widen access to justice by making legal professionals available, exists in some countries—Ecuador, Uruguay and Bolivia (pilot plan)—but not in others. These functions are sometimes performed by the Lawyers' Professional Associations (Argentina) or the University Legal Aid Clinics (Ecuador, Uruguay). Procedural Systems and Jurisdictional Divisions Although the topics of judicial systems and Jurisdictional subdivision lend themselves to separate treatment, it was decided to study them under a single heading not just because of the link that exists between them but also because it is at times impossible to discuss one without the other. The written system remains predominant in all areas of the law in Argentina, in Bolivia (which even continues to pay homage to the practice of using stamped paper and seals in judicial proceedings), Mexico, Panama and Paraguay. In Ecuador, Jamaica and Uruguay (only in civil proceedings in Uruguay) the tendency is toward the oral form. In Ecuador, in fact, Article 93 of the Constitution provides that: "The procedural laws shall aim at simplification, uniformity and efficiency of proceedings (and) insofar as possible the oral system shall be used." Although in some countries there is a certain tendency toward the oral form, the fact of the matter is that what exists in practice is a diluted form of oral proceedings since the simplest proceedings always

Barbosa, R., Benitez R., L. M. and Cabral, J. M. Modernization del Poder Judicial. Asuncion, Paraguay: Editorial Centre de Publicaciones, Universidad Catolica Nuestra Senora de la Asuncion, 1992.

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have to be set down in writing, a requirement that slows down the rate at which cases are processed. In all the countries, with the exception of Ecuador (where the Constitution mandates that "there shall be no more than three tiers in any suit"), the principle of two-court tiers in legal proceedings is absolute, though provision is made for exceptions in light of the amount at issue or similar factors. All indications are that the three-tier system will be abolished in Ecuador and replaced by the two-tier system found in most countries. In Jamaica, there is a procedure for appeal or review of second-tier judgments to Her Majesty in Council in the case of specific matters spelled out in the Political Constitution. In all countries an investigative tendency is noted in the principles that govern civil proceedings, even though they retain their predominantly dispositive appearance. In other words, a mixed system tends to be used in civil suits, in which the court does not simply play the role of an impassive spectator of the contest unfolding before it but actually becomes an active participant in inquiring into the truth, in furtherance of the clear objective of protective due process rights. The mixture of systems followed in civil proceedings noted in the countries studied is reflected in the fact that, in order to institute proceedings, it is normally necessary to file a suit or petition as a party to the action. Informal institution of proceedings is authorized in exceptional cases, as happens in Ecuador, Mexico, Panama and Paraguay. Of course, once a suit has been instituted, whether officially or upon petition by a party, expediting it is not only the responsibility of the parties but primarily that of the court. This is so because the court posseses the powers of scheduling and organizing hearings and preliminary examinations and the formal and physical direction of the proceedings in order to enable it to bring the suit to completion. Concerning the systems of evaluation of evidence in civil, labor and administrative-law cases, all the countries studied have already, in one way or another, embraced the system of free evaluation and healthy criticism of the evidence, as opposed to the legal rating system. The court consequently assigns a persuasive value to each piece of evidence based on the rules of healthy criticism and on the court's experience. Although all the doctrinal authorities concur in asserting that jurisdiction is indivisible and all speak of unity of jurisdiction, they also admit that it can be divided not only into contentious and voluntary but also into ordinary or common and special jurisdictions. Ordinary or common jurisdiction is of course that which groups together civil and penal courts, which traditionally exist in all systems. Alongside this there are the special jurisdictions, dedicated to specific matters, such as commercial, agrarian, labor, administrative-law, mining, etc. A tendency common to the countries studied is the frequent addition to ordinary or common jurisdiction of more and more special jurisdictions. This leads to judges specializing in hearing and ruling on specific areas of law. Despite this general tendency, there is no uniformity in the number of special jurisdictions the countries are creating. To mention only three countries: Uruguay has special family, labor, administrative-law and misdemeanor courts; Mexico has commercial, administrative-law, labor, family and agrarian courts; and Bolivia has family, labor, controlled substances and mining courts. In Ecuador there are labor,

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lease, traffic, coercive jurisdiction and police courts plus such as may be created by special laws. In jurisdictional organization, Argentina has penal, economic penal, criminal and correctional, commercial, civil, administrative-law, labor, social security, and juvenile court judges, qualified justices of the peace and a notarial judge. An interesting process is currently under way in Argentina to decentralize the agencies that administer justice to the provinces, with the object of decentralizing or in a way "denationalizing" the public justice service. Jamaica does not have codes but rather statutes, which serve together with custom and jurisprudence as instruments for the settlement of legal actions. In Jamaica there are, in addition to the ordinary courts and other agencies mentioned earlier that are competent to deal with matters concerning gun-running, vehicle traffic and petty cases, specialized courts for labor and commercial issues. Alternative Mechanisms for the Dispute Resolution In all the countries studied, mediation, amicable settlement composition, conciliation and arbitration machinery have been set up alongside the state-organized and sponsored judicial systems. Although some or all of these mechanisms exist in all the countries studied, there is a notable reluctance to use them, except in the case of Uruguay. In Uruguay, conciliation has won a major battle, to the point that Uruguay can be regarded, with Colombia, as a pioneer in and a model for conciliation in Ibero-America. Although these alternative mechanisms for settling disputes are intended to be used by persons who are not judges, outside the legal process, they can also be used or applied by judges before or during legal proceedings. Thanks to the hard work of the Ibero-American Institute of Procedural Law (Instituto Iberoamericano de Derecho Procesal), which drafted the model Procedural Code for Ibero-America, conciliation appears to be, without doubt, the most suitable mechanism for settling disputes in the region. It is also the one mechanism that could gain wide acceptance in the countries studied, even though not every country's legislation provides for it. In fact, conciliation is legislated only in Ecuador, Mexico and Uruguay and is really only fully developed in Uruguay. Indeed, in Uruguay, which recently enacted a General Code of Procedure instituted, a preliminary conciliation hearing before court proceedings has been instituted, as suggested in the Model Procedural Code for IberoAmerica. This procedure appears to have reduced congestion even though its effectiveness and appropriateness are not yet recognized in some circles. In Mexico, the magistrates or judges in the civil proceedings, or judicial officers authorized by the Higher Courtâ&#x20AC;&#x201D;provided that they are different from those involved in deciding the case), are empowered, at any stage in the hearing before the judgment, to urge the parties to reach a voluntary compromise as to the substance of the dispute. This compromise is intended to resolve their differences by agreement and to terminate lawsuits. The countries studied possess very little experience with amicable settlement. This is understood as a mechanism by which the parties to a dispute appoint a third

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party to either resolve the dispute or propose a compromise. It does in fact exist in Argentina, and also in Mexico, where in some cases a person unconnected with the suit is allowed to propose a settlement. Arbitration is provided for in all the countries studied but under entirely different sets of regulations. It is generally not compulsory, though in Argentina and Mexico the law compels the parties, in exceptional cases, concerned to submit to arbitration to settle certain commercial and labor disputes. In Ecuador the judges are divided into legal process and conciliation judges, the latter being arbitrators. Arbitration is the preferred way of resolving labor disputes. Generally speaking, arbitration shares the common characteristic in the countries studied of taking place under a prior commitment clause or undertaking entered into more or less formally, depending on the country. Most of the countries require that the agreement to arbitrate be set forth in a private document, in an act performed before a judge or in a public deed (Argentina, Mexico, Panama, Paraguay). In other countries, a telegram, fax or any other means of affirming the commitment to arbitrate is acceptable (Panama, Paraguay). Once the commitment clause or undertaking has been signed, the ordinary courts are prohibited, in all the countries, from hearing the dispute except with the prior consent of the parties. The arbitration agreement can be entered into prior to the start of the proceedings (Argentina, Mexico, Paraguay) or during them (Argentina, Mexico, Panama, Paraguay); in certain cases it is permitted even though judgment has already been given (Argentina, Mexico). As is characteristic of arbitration, in the countries studied, parties resort to arbitration in civil, commercial and collective bargaining matters only when the dispute concerns rights with a property content. Given this, matters pertaining to, inter alia, marital status, penal cases, and future support-order payments are excluded from arbitration (Argentina, Ecuador, Mexico, Panama, Paraguay, Uruguay). The arbitrators decide in law or in equity, as provided for in the arbitration clause or agreement. In the absence of any stipulation on this point, they are required to decide in law in Argentina, Ecuador, Mexico and Panama and in equity in Paraguay. Arbitration tribunals may consist of a single person (Mexico, Panama, Paraguay) or an odd number of persons (Argentina, Mexico, Panama, Paraguay) who are ordinarily designated by the parties in the arbitration clause or agreement. In those countries where arbitration is authorized, the decisions or verdicts handed down have of course the same status as any court judgment, that is they can be challenged, they have res judicata effect, and compliance with them can be enforced by short procedure. Arbitration and conciliation have been receiving increased attention in the countries studied in relation to possible reform. For example, a proposal for reforming the treatment of arbitration and conciliation is currently under discussion in Paraguay and will very probably become law. ANALYSIS OF THE PROBLEM OF THE JUSTICE SYSTEM Judicial Independence Any document that seeks to present an overview of the judicial systems of Latin American and Caribbean countries must necessarily include an analysis of whether

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those systems operate independently of the other branches of government and whether the performance of their functions is hindered by other factors. Clearly the precarious independence of the judiciary is not a problem which is unique to Latin America. It is in fact a universal cause for concern, for only when a country enjoys an autonomous judiciary can its peace and institutional stability be regarded as safe from or feel less threatened by social upheaval. While the list of factors that potentially impair the independence of the judiciary is long, in the particular case of the countries studied here they include, in addition to the very system by which judges are chosen, the undisputable presence of political factors and, fatally, corruption. Paradoxically, the violence that has swayed the will of the courts in other countries and that is a leading cause of their loss of autonomy is not present in any of the countries studied, not even those whose economies are distorted by the scourge of drug dealing. Those systems in which other branches of government, such as the Legislature, have special input into the selection of judges suffer from a loss of autonomy. The same thing happens in systems in which the evaluation of judges is influenced in some way by governmental organs set up with reference to political criteria. Naturally, when political interference in the appointment of judges occurs at the top of the judicial organization, the evil tends naturally to spread by metastasis throughout the entire judicial structure. In this sense, interference is like dominos: once the first has fallen the rest suffer exactly the same fate. Thus, when the Supreme Court of Justice, appointed on the basis of more or less political criteria, exercises disciplinary control over the very judges that it appoints, it is evident that the latter are hardly raised to their high offices before they find that their ability to perform their duties autonomously is restricted. There are no magic formulas whereby disciplinary authority over judges can be prevented from becoming an impediment to their autonomy. All the evidence suggests, however, that the least harmful system would entail entrusting disciplinary responsibility to an administrative organ whose members are chosen independently. There is no intention to advocate a system analagous to those that exist in some countries, in which administrative agencies have been set up to exercise disciplinary oversight over judiciary officers. If these agencies do not officially form part of the judiciary itself, they are, in practice an appendage of it because they consist principally of judiciary staff. What is proposed is the creation of an administrative-type agency, responsible for judging the judges, in which the judiciary is not represented. A factor that can potentially affect the autonomy of judges, and their competence, is the term for which they are elected or appointed. A long term clearly gives judges stability of tenure but has the drawback that it discourages them from keeping abreast of new trends in jurisprudence and legal thinking. A short term, on the other hand, leads to instability of office and thereby impairs judges' autonomy. Re-election of the senior judiciary can give rise to the same questions as excessively long terms. We shall not be so temerarious as to suggest an ideal uniform length of tenure for the countries studied, since their institutions differ in both background and developmental history. We simply call attention to this factor in order to stimulate thinking about the need to permit high-level and even lower-level judges to serve for a term long enough to allow them to perform their tasks competently but not long enough for them to become too set in their ways and to stagnate.

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It is also seems clear that the number of justices who make up the supreme judicial authority should not be left to be determined by the legislature. This is the case because their judicial autonomy could be impaired in the event that the Legislature alters the composition of the court in order to introduce judges with clear political leanings or partisan missions. A surer way would be to prescribe the number of justices in the Constitution itself. This tactic makes it more difficult to change the number of judges as part of a maneuver designed to alter the quorum or composition of the Supreme Court of Justice. A factor that undoubtedly has a direct bearing on the independence of the courts and their staffs, particularly in the middle and lower tiers, is instability of tenure. This instability constitutes a pathological situation that is more obvious in countries where the judicial career is not institutionalized. A system in which judicial offices are filled only through merit and competition could be an effective instrument in those countries, which could well profit from the experience of other Latin American and Caribbean countries. Another aspect that must be considered of paramount importance to the autonomy of the judiciary is the question of whether a specific percentage of the national budget should be allocated to it by the Constitution, and if so, what amount. To the extent that financial support for the judiciary is both significant and compulsory, the judiciary will obviously be less vulnerable to pressure from other spheres of authority with responsibility for distributing government resources. There is no uniformity in the countries studied on this point, which is of considerable importance since the value of the judicial system will be all the greater if the part of the budget allocated to the judiciary is administered directly by it. The involvement of other agencies in this task often means that the administrators of justice end up having to go cap in hand in search of "alms" kindly bestowed on them. Ideally, a specific percentage of the national budget would be allocated to the administration of justice by the Constitution in the countries studied; preferably the same amount in all the countries. Finally, discussing corruption as a factor endemic to judicial independence is not an easy task, particularly since it can also be attributable to factors extraneous to the administration of justice. In some cases corruption originates in the legislation itself. The stringency of certain procedures, coupled with excessive formalism, is without doubt the strongest stimulus to the creation or consolidation of a spirit of corruption in that it generates a tendency to seek solutions to procedural difficulties not in the codes but rather via the tortuous route of swaying officials without convincing them. Clearly this last issue is inseparably linked to the system of remuneration of judges, a system that certainly does not appear to be either entirely adequate or appropriate in all the countries studied. This fact renders judges vulnerable and exposes them to the constant risk of compromising their independence. Inefficiency of the Judicial System A matter of great concern related to the functioning of the administration of justice in Latin America and the Caribbean, is the problem of effectiveness and efficiency, the former understood as the ability of the judicial system to achieve the intended

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results, and the latter as the existence of a situation in which results are obtained under satisfactory conditions of time and cost. The system of justice in Latin America and the Caribbean is neither efficient nor, in many cases, effective. This fact is due to the sluggishness and operational awkwardness of the instruments through which it works and to the lack of rational and effective responses to the obstacles encountered. The following are examples of the phenomenon noted above: in 1991 the Argentine civil law courts settled only 6 percent of the suits filed in that year; in Bolivia, the average duration of a penal suit is about 5 years; and in Paraguay, out of a total of 5,492 cases (499 a month) in 1992 only 409 had been settled by November of that year (37 a month), a ratio of one case completed for every 11 left unresolved. The inadequacy of procedural and operational instruments at the disposal of the judiciary is due, in most cases, to a lack of financial resources. This points to a need for government policies designed to meet the requirements of the administration of justice. To that end the Executive Branch is in need of an appropriate agency to formulate a justice policy and submit it to the legislature or, when appropriate, apply it directly. This function is usually performed by the Secretariat or Ministry of Justice (Argentina, Mexico, Panama, Paraguay). However, in the countries that lack a specialized government agency responsible for justice sector policy, it has been handled by agencies specifically created for the purpose, such as Bolivia's National Council on Reform and Modernization of the Judiciary. Policy planning for the justice sector ought to be based on investigation and examination of the problems encountered in the various systems. Such studies are not, however, generally carried out, for lack of governmental or other agencies to conduct or promote them. Another factor related to the relative inefficiency of the administration of justice is the assignment to its high authorities of purely administrative, disciplinary and financial functions that impose an unofficial burden on them in addition to their natural functions (Argentina, Bolivia, Ecuador, Mexico, Panama, Paraguay, Uruguay). The essential function of the courts of justice is to administer justice, not to manage the judiciary's budget, evaluate the court's work, study the CVs of persons who aspire to enter or rise in the judicial profession, or conduct disciplinary checks on judges in whose selection they may be involved. In contrast, the creation of specialized agencies, like that of the Higher Council on the Judiciary (Consejo Superior de la Magistradura), results in rational and coherent management of the Judiciary's administrative affairs. This is seen in Argentina (provinces of San Juan and Santiago del Estero) and Paraguay, where there exists the added advantage that other governmental authorities do not interfere in the appointment or work of members of such agencies. The absence of efficiency in the performance of judicial functions is also reflected in the excessive congestion of court dockets. This makes it necessary to seek ways of managing the judicial system's workload efficiently. Possible answers include the creation of mechanisms, techniques and procedures aimed at simplifying trial and hearing procedures, and removal of certain disputes from the competence of the courts so that they might be decided by administrative authorities or other similar systems.

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Although legal instruments that confer judicial functions on administrative authorities exist in all the countries studied, they are not employed to a such an extent that they effectively reduce congestion. Argentina, Bolivia, Paraguay and Uruguay still lack conciliation centers as alternative mechanisms for resolving disputes. This lack is regrettable, since in conciliation the dispute and the solution remain the exclusive concern of the parties. No third party (judge) intervenes in conciliation, as in standard legal proceedings, to take the dispute, in the name of the government, out of the parties' hands in order to settle it. Moreover, conciliation eliminates the problems of opposition and resistance to the substance of court judgments, which, even though they are fully grounded in law, cause dissatisfaction among the parties. The option of the arbitration tribunal system, as an alternative mechanism for the settlement of disputes, is currently limited in most cases to the settlement of commercial and labor disputes. This is testament to the under-use of this instrument, an instrument that could well be extended to the settlement of other matters, by agreement between the parties and by legal requirement. Discussion of the excessive "criminalization" of certain acts which would, if taken out of penal law, belong to civil or commercial law, merits a separate discussion. The Outlook for the Justice System A general aim in the eight countries studied and indeed throughout the Latin American and Caribbean family is to strengthen their systems of administration of justice not only as a means of providing themselves with an efficient instrument for the settlement of disputes, but also because it is the only feasible remedy for their frequently threatened democratic systems. Those countries that have a distinctly democratic tradition and respect the rule of law have understood that the responsibility for resolving their problems in the area of administration of justice is not incumbent exclusively on the judiciary, but also concerns the government itself and the entire community. It is this that makes justice an issue of the first magnitude, in one way or another, in government publications, the media and public and private debate in almost all the countries studied. This study, some sections of which may seem harsh, does not take a pessimistic view. On the contrary, it asserts that this may be a positive period for the eight countries covered by the study. A wind of change is blowing across Latin America and the Caribbean, bringing with it the overhaul of the administration of justice. This zeal for change represents, in large measure, a response to the serious ills with which justice is currently afflicted and the felt need to raise it from its present low state. In addition to instituting mechanisms that ensure the independence of the judiciary in the countries in which its functions are vulnerable to political interference, the theme for the period ahead, which will bring us to the threshold of a new millenium, is "Modernization of Justice." This is a matter of conceiving and implementing the design of a system of administration of justice that is able to satisfy the varied aspirations of private individuals and provide them with prompt and just responses. For no one would dare dispute that compromised justice and slow justice are equally inequitable, since both tend to disrupt social tranquility.

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What would be the most suitable instruments through which to approach the task of modernizing justice? While we do not possess a precise list of tried and tested instruments offering guaranteed results, all the evidence suggests that the following improvements would brighten the outlook for the administration of justice: movement toward oral proceedings as the primary vehicle in legal proceedings; better training of officers and employees; properly equipping of offices and introduction of modern technical aids and procedures; encouragement of the filing of class actions by public and private entities; and support for the courts on the part of government and citizenry. As to the first point, the obsession with the written form (Argentina, Bolivia, Panama, Paraguay), combined with all the problems referred to earlier, turns the court into a mere custodian of documents that are referred to only at the moment of pronouncing judgment, the first time that the court gets down to the substance of the suit it is required to resolve. Moreover, in most cases the physical infrastructure of a written system ends up being underused. The oral system that is now being experimented with cannot of course be instituted unless the courts are first provided with the equipment and instruments they need to conduct oral proceedings. Otherwise, the desired improvement in expediting the proceedings will not be forthcoming, and the proceedings would, in fact, be slowed beyond their already sluggish pace. Oral conduct of civil proceedings is not, of course, as experience has already demonstrated, to be recommended at every stage of the proceedings. The filing of the complaint, the gathering of the evidence, and the judgment must be presented in writing since these are the major procedural acts in the proceedings. The plaintiff's petition, the evidence and the judgment can be set forth in precise terms and available for consultation only when they are in writing. If entirely oral, proceedings could be easily falsified. Falsification could taint the intent of the plaintiff, the decision of the court, and even the true import of the evidence gathered. There is also a pressing need to increase the number of judges and support personnel, especially in those countries that opt for oral presentations in civil, commercial, labor, and other types of suits. First of all, adoption of oral proceedings without adequate provision of human resources would serve no purpose whatsoever. Second, an adequate number of good judges is the best way to ensure that decisions will be rendered by legally and professionally qualified officers and not by subordinate employees. This latter phenomenon apparently occurs more frequently in written systems, where there is little or no contact between parties and judge. Hence the importance and appropriateness of Uruguay's decision to raise the clerks of some offices to the level of judges, with restricted competence and subject to clearly defined limitations on their decisions. This fulfills the requirement that introducing more oral presentations in legal proceedings be accompanied by an increase in the number of judges. This observation on the need to increase subordinate staff extends not only to clerks, officials and so on but also to ancillary judicial staff such as assessors and other experts, many of whom are essential support components of the judicial apparatus. Complaints are constantly heard about the lack of training, unhelpfulness and even impropriety of so-called legal assistants, who, even when they are not subordi-

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nates of the court by virtue of the post itself, are indeed its subordinates by virtue of their performance of a public function. This corps of assistants must be upgraded not just by increasing their number but more importantly by raising their ethical and professional character. Finally, a vital instrument that ought to be borne in mind when thinking about the modernization of justice is facilitating access to justice by the entire community. This can be accomplished by providing trained legal assistance and representation for the ordinary people, free of cost, and sponsoring the filing of class actions in protection of public and community interests. Examples of inequity exist that are simply due to outdated and anchronistic practices, such as not making the justice system free of charge, as occurs in Bolivia. Although some of the institutions necessary for promoting citizen and community access to justice (Public Defenders or the appropriate agent of the Attorney General's Office) are already in operation and are resulting in greater popular support and legitimacy of the justice system, there is a need for a more definite policy in this area. In addition to the official agencies, there are Legal Aid Bureaus or Legal Clinics for students (Argentina, Bolivia, Panama) that perform the role of promoting citizen access to justice. The students in these bureaus or clinics must be taught the principle that, above and beyond any personal commitment, they have a higher commitment to the community they are being trained to serve. This pedagogical function can also be supported and organized through the work of the Bar Associations (Colegios de Abogados; Argentina). Procedural protection of collective interests, through the use of autonomous mechanisms that differ from those used to safeguard individual procedural rights, is another way in which the entire community can benefit from a system of justice concerned not only with the fate of individual property and human rights but also with rights of the various communities, including future generations. In sum, respect for human rights, dignity of life, democracy and even survival itself calls for an independent and able system of administration of justice endowed with a sense of social justice backed by theoretical and practical competence and committed to the institutions and the community. In the subject countries of this study, as in the rest of the subcontinent, this principle is already a matter of conviction, and government and citizenry have moved from the stage of concern about it to that of seeking appropriate ways of honoring it and putting it into practice. Thus, the importance of communication, of the steps to be taken, and of the kind of measures and solidarity among peoples.

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Barbosa, Ramiro. "Proceso oral en la jurisdiction del trabajo," in Revista Juridica. Asuncion, Paraguay: Universidad Catolica Nuestra Senora de la Asuncion, 1992. Bergalli, Roberto. Estado democrdtico y cuestion judicial. Buenos Aires, Argentina: De Palma, 1984. Bergalli, Roberto. "El Poder y los jueces latinoamericanos. Los modelos argentino y colombiano," in Revista Afers Internationals. Barcelona, Spain, 1986. Binder, Alberto. "Estrategias para la reforma de la justicia penal," in Congreso Regional Sobre Reforma de la Justicia Penal. Ciudad de Guatemala, Guatemala: ILANUD/Organismo Judicial Guatemala, 1991. Bogarin Gonzalez, Jorge E. "El Codigo Penal y la perentoria necesidad de modificarlo," in Revista Juridica. Asuncion, Paraguay: Universidad Catolica Nuestra Senora de la Asuncion, 1992. Bogarin Gonzalez, Jorge E. "Preliminary evaluation of the Paraguayan sector." Florida United States: Florida International University, Center for The Administration of Justice. Mimeographed Document, 1990. Carcova, Carlo M. "La administration de justicia en la Argentina," in La Administration de Justicia en America Latina. Lima, Peru: Consejo Latinoamericano de Derecho y Desarrollo, 1984. Carranza, Elias et al. Sistema penitenciarios y alternativas a la prision en America Latina y el Caribe. Buenos Aires, Argentina: De Palma, 1992. Carranza, Elias et al. Consejo nacional de reforma y modernizacion del Poder Judicial. Anteproyecto de la ley de organization judicial, Centre de Informatica del Consejo Nacional de Reforma y Modernizacion del Poder Judicial. La Paz, Bolivia, 1992. Carranza, Elias et al. Anteproyecto de la ley organica del Ministerio Publico. La Paz, Bolivia, 1992. Carranza, Elias et al. Codigo Penal, Codigo de Procedimiento Penal, principios penales y procesales. La Paz, Bolivia, 1992. Cortias Pelaez, Leon. Poder Ejecutivo yfuncionjurisdiccional. Mexico City, Mexico: Universidad Nacional Autonoma de Mexico, 1982. De La Rua, Jorge. La codification penal latinoamericana. Buenos Aires, Argentina: Lerner Editores Asociados, 1983. De Rivacoba and Rivacoba, Manuel. "Poder, derecho y justicia en el marco de la reforma penal," in Doctrina Penal. Buenos Aires, Argentina: De Palma, 1988. . "El marco de la reforma penal," in Doctrina Penal. Buenos Aires, Argentina: De Palma, 1988. Eastman, Jorge, M. Constituciones politicas de lospaises andinos. Bogota, Colombia: Secretaria Ejecutiva del Parlamento Andino, Coleccion Fondo de Publicaciones (2nd ed. 1991). Elizeche Almeida, Modesto et al. Sistemapenitenciario paraguayo y reaction estatal contra la criminalidad. Asuncion, Paraguay: Centro Interdisciplinario de Derecho Social y Economia Politica, Universidad Catolica Nuestra Senora de la Asuncion, 1991.

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Entelman, Ricardo. "Algunos aportes tecnicos a la cuestion del poder de los jueces y la autonomia judicial," in La Administration de Justicia en America Latina. Lima, Peru: Consejo Latinoamericano de Derecho y Desarrollo, 1984. Fernandez, Gonzalo, D. Derecho PenalyDerechos Humanos. Montevideo, Uruguay: IELSUR, 1988. Foro politico No. 7. Constitucionalismo y sistema politico. La Paz, Bolivia: Ildis, 1989. Galin, Pedro. "La independencia del Poder Judicial argentino en la dictadura 19761980," in La Administration de Justicia en America Latina. Lima, Peru: Consejo Latinoamericano de Derecho y Desarrollo, 1984. Gessner, Volkmar. "Sobre la funcion de los procedimientos extrajudiciales de resolucion de controversias," in Anuario Vasco de Sociologia del Derecho. San Sebastian, Spain, 1988. Gomez, Miguel and Romero, Ignacio. El lado oscuro de la ley, Asuncion, Paraguay: CEDEM, 1992. Gonzalez Novillo, Jorge R. Comentarios al Codigo de Procedimiento Penal. Buenos Aires, Argentina: AD-HOC SRL, Buenos Aires. (2nd ed. 1992). Gutierrez, Carlos Jose. "Poder Judicial y democracia," in Congreso Regional Sobre Reforma de la Justicia Penal. Ciudad de Guatemala, Guatemala: ILANUD/Organismo Judicial Guatemala, 1991. Harb, Benjamin M. Codigo de Procedimiento Penal. La Paz, Bolivia: Editorial Los Amigos del Libro, 1990. . Codigo Penal Bolivariano. La Paz, Bolivia: Editorial Los Amigos del Libro, 4th ed., 1992. . "Proyecto de ley de declaration de la necesidad de reforma de la Constitucion Politica del Estado." Honorable Camara de Diputados, Comision de Constitucion, Justicia, y Policia Judicial. La Paz, Bolivia, 1992. ILANUD. "Estudio sectorial sobre el Poder Judicial en Bolivia." La Paz, Bolivia: Mimeographed report presented to the Supreme Court of Justice (la Corte Suprema de Justicia), on December 7, 1988. "La defensa publica en America Latina desde la perspectiva del derecho procesal moderno." San Jose, Costa Rica: ILANUD, 1991. . Estudio del funcionamiento del sistema penal en Bolivia, La Paz, Bolivia, 1992. Larrandart, Lucila E. "Acceso a la Justicia y tutela de los derechos de los ciudadanos," in Sistema Penal Argentino. Buenos Aires, Argentina: AD-HOC SRL, 1992. Mackinson, Gladys J. and Goldstein, Mabel R. La magistratura de Buenos Aires, Buenos Aires, Argentina: Literaria Juridica, 1987. Madrazo, Francisco. Ordenjuridico y derecho judicial. Buenos Aires, Argentina: De Palma, 1978. Maier, Julio B.J. "Politica criminal, derecho penal y derecho procesal penal," in Doctrina Penal. Buenos Aires, Argentina: De Palma, 1978. . "Hacia una nueva Justicia penal," in Doctrina Penal. Buenos Aires, Argentina: De Palma, 1988. "Situation de la Justicia penal: fallas de los sistemas escritos y de la organization de los tribunales," in Congreso Regional Sobre Reforma de la

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Justicia Penal. Ciudad de Guatemala, Guatemala: ILANUD/Organismo Judicial Guatemala, 1991. . "Mecanismos de simplification del procedimiento penal," in Revista de Ciencias Juridicas (El Salvador). Centre de Investigation y Capacitacion del Proyecto de reforma Judicial, 1991. . "Investigation de los delitos y la participation de la victima," in Congreso Regional Sobre Reforma de la Justicia Penal. Ciudad de Guatemala, Guatemala: ILANUD/Organismo Judicial Guatemala, 1991. Monta Opardo, Edgar. "Ejercicio jurisdiccional en relation a los poderes." Revista Judicial. La Paz, Bolivia: No. l(4),(Septiembre-Diciembre de 1990). Martinez Vivot (H), Julio J. "El proceso penal oral en el ambito national," in Lecciones y Ensayos 56. Buenos Aires, Argentina: Facultad de Derecho, Universidad de Buenos Aires/Editorial Astrea, 1992. Mora, Luis P. "La importancia del juicio oral en el proceso penal," in Congreso Sobre Reforma de la Justicia Penal. Ciudad de Guatemala, Guatemala: ILANUD/Organismo Judicial Guatemala, 1991. Morelo, Augusto M. La reforma de la Justicia. Buenos Aires, Argentina: Abeledo/ Perrot y Libreria Editora Platense, 1991. Morris, Norval. Elfuturo de lasprisiones. Mexico: Siglo Veintiuno Editores (3rd ed. 1985). Perez Guilhou, Dardo et al. El Poder Judicial. Buenos Aires, Argentina: Institute Argentine de Estudios Constitucionales y Politicos, Ediciones de Palma, 1989. Perez Perez, Alberto. Constitucion de la Republica Oriental del Uruguay de 1967. Montevideo, Uruguay: Biblioteca de Publicaciones Oficiales de la Facultad de Derecho y Ciencias Sociales de la Universidad de la Republica, 1967. Presidencia de la Republica de Bolivia, Decreto Supremo No. 22793 (Supreme Decree No. 22793). Mimeographed document. Rico, Jose Maria. Crimen y Justicia en America Latina. Mexico: Siglo Veintiuno Editores (2nd ed. 1981). Rico, Jose Maria. Las sanciones penales y la politica criminologica. Mexico: Siglo Veintiuno Editores (4th ed. 1987). Riera Hunter, Marcos. El rol judicial en el Estado de derecho, in Revista Juridica. Asuncion, Paraguay: Universidad Catolica Nuestra Senora de la Asuncion, 1992. Rivas, Adolfo A. "El proyecto 'LEVENE' (H) de codigo procesal penal para la Justicia nacional argentina." Bogota, Colombia: Revista del Institute Colombiano de Derecho Procesal (Vol. II, No. 10-11), Ediciones Libreria del Profesional, 1991. Ruiz Perez, Joaquin S. Juez y sociedad. Bogota, Colombia: Temis, 1987. Sagues, Pedro M. Reforma Judicial. Buenos Aires, Argentina: Astrea, 1978. Schiffrin, Leopoldo. "Caracteristicas del proceso de reforma de la Justicia penal en la Argentina," in Memoria Conferencia Iberoamericana Sobre Reforma de la Justicia Penal. El Salvador: Ministerio de Justicia, 1991. Silva Garcia, German. "Algunas concepciones sobre la reforma a la administration de Justicia en America Latina," in Revista de Ciencias Juridicas (El Salvador). No. 1. 1991. . "Justicia, jueces y poder politico en Colombia," in Jurisprudencias. Bogota, Colombia: lisa, 1991.

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. Constitution politica de la Republica de Ecuador. Quito, Ecuador: Sociedad de estudios forenses, 1986. Soto Jimenez, Rolando. "El uso de mecanismos informales en la resolucion de conflictos en los particulares," in La Administration dejusticia en America Latina. Lima, Peru: Consejo Latinoamericano de Derecho y Desarrollo, 1984. Tocora, Fernando. Politica criminal en America Latina. Bogota, Colombia: Libreria El Profesional, 1990. Vasquez Rossi, Jorge E. "Crisis de la justicia penal: diagnosticÂŠ y propuestas," in Doctrina Penal. Buenos Aires, Argentina: De Palma, 1987. Vescovi, Enrique. Education socialy civica. Montevideo, Uruguay: Ediciones IDEA, 3rd ed., 1991. Villamayor Lucia, Fernando. Temas Penales. La Paz, Bolivia: Libreria Editorial Popular, 1991. Virgolini, Julio E.S. "El control social y su articulacion con el sistema penal," in El Sistema Penal Argentina. Buenos Aires, Argentina: AD-HOC SRL, 1992. Zaffaroni, Eugenic R. En busca de las penas perdidas. Bogota, Colombia: Temis, 1990. Politica criminal latinoamericana. Buenos Aires, Argentina: Editorial Hammurabi, 1982. . "La independencia del Poder Judicial en su marco historico," in El Sistema Penal Argentina. Buenos Aires, Argentina: AD-HOC SRL, 1992. "Dimension politica de un Poder Judicial democratico." Conferencia in Guayaquil; Seminar on Judicial Reform in Ecuador. Mimeographed document.

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INTERNATIONAL COOPERATION AND THE ADMINISTRATION OF JUSTICE

PART VII

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Judicial Reform in Developing Countries and the Role of the World Bank

Ibrahim F. I. Shihata1 Vice President and General Counsel, The World Bank Secretary-General, International Centre for Settlement of Investment Disputes.

RELEVANCE OF JUDICIAL REFORM Law has long been recognized not only as a reflection of the prevailing forces in a given society but also as a potential instrument of change and progressive development. These two attributes enable it to play two seemingly conflicting roles: that of a keeper and interpreter of the status quo and, simultaneously, that of a catalyst for its change and the mechanism through which such a change may be brought about in an orderly manner. The intricacies of the role law can play in introducing policy changes and influencing the pace and pattern of development and, conversely, its possible role as an obstacle in the face of further development are yet to be understood fully. A branch of legal education attempts at present to address the role of law in the development process. Building on earlier writings in jurisprudence, it also attempts to provide answers to the time honored questions related to the true role of law in society and why it may function at times to serve its originally intended purposes and at times to promote different or even conflicting purposes.2 A number of modern national and 1 The author wishes to acknowledge the assistance of Mr. Paatii Ofosu-Amaah and Ms. Gillian Kettaneh in the preparation of this paper and the comments made by Messrs. Andres Rigo, Antonio Parra, Peter Fox and Malcolm Rowat on earlier drafts. Responsibility for the views expressed in the paper rests with the author alone. 2 See generally P. Ebow Bondzi-Simpson, The Law and Economic Development in the Third World (1992); Marc Galanter, Delivering Legality: Some Proposals for the Direction of Research (1977); The Political Economy of Law: A Third World Reader (Yash P. Ghai et al. eds. 1987); John H. Merryman, Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977); Robert B. Seidman, The State, Law and Development (1978); David M. Trubek, Towards a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale L. J. 1 (1972);

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international institutes also provide training and encourage research in the various practical aspects of the subjects raised by these questions.3 Yet, for the most part, the discussion of legal reform has hitherto concentrated on the most effective ways in which law may be modernized, that is the introduction of changes in the rules (both substantive and procedural, primary and secondary, etc.) to enable them to meet the constantly evolving needs of the societies they are meant to regulate. This approach assumes that once appropriate changes are introduced in the rules, the legal system as a whole will be more responsive to the demands of modernization and development. Rules, however, are seldom self-executing and even when they are, they need appropriate institutions to ensure their correct application and enforcement and to settle disputes that inevitably arise in the course of their application. A legal system, in other words, consists not only of applicable rules but also of the processes through which these rules are to be applied and of the institutions in charge of these processes. Without such processes and institutions, rules may remain abstract concepts that do not always reflect the law in force.4 An adequate legal reform program cannot therefore be limited to a review of existing rules with a view to introducing the most appropriate changes under the circumstances of the society concerned. It must also include such legislative, administrative and judicial reforms as may be needed to ensure that the rules will be changed to serve the public interest, will be applied in a correct and fair manner so that they may continue to serve this purpose, will be complemented by the necessary regulations and interpretations which facilitate their application and will be subject to future reviews to ensure their continued relevance and usefulness. Such reforms must be equally concerned with the process and outcome of conflict resolution so that the mechanisms of such a process may always be, and appear to be, efficient, fair and nonarbitrary. The need for a comprehensive reform in the rules, processes and institutions that express and implement policy reforms in every field of societal organization is all the more evident in the context of the prevalent transition of many economies from a command to a market system or from the predominance of the public sector to that of the private sector, with the inevitable redefinition of the role of the state that accompanies such transformations. Private investors in particular, whether domestic or foreign, and their financiers even more so, take into account in their investment decisions, along with the primary issues of financial returns and political risks, such questions as whether the legal

Roberto Unger, The CIS [Critical Legal Studies] Movement, 96 Harv. L. Rev. 563 (1983). For a general discussion of Law & Development Studies, see Research Advisory Committee on Law and Development of the International Legal Center, Law and Development (1974). 3 For example, the Institute of International Law (ILI) in Washington, D.C. and the International Development Law Institute (IDLI) in Rome. 4 This is not to suggest, however, acceptance of Learned Hand's view that "[t]he words he [the judge] must construe are empty vessels into which he can pour nearly anything he will." Learned Hand, Spirit of Liberty 81 (1952). Rather, it is to acknowledge that "[t]here is no such thing as 'pure' law. The profession of the law in all its forms has never detached itself completely from the various kinds of human activity out of which it grew. It is essential that no complete detachment ever takes place." Max Radin, Law as Logic and Experience (1940).

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system allows investors' rights to be enforced routinely and disputes arising out of their activities to be resolved in an evenhanded, expeditious and efficient manner. Indeed, serious investors look for a legal system in which property rights, contractual arrangements and other lawful activities are safeguarded and respected, free from arbitrary governmental action and from pressure by special interest groups or powerful individuals. In this respect, the proper functioning of the judicial system is of immense importance, even where an investment is of sufficient size and importance to attract its own special legal regime, as, for example, is common in the mining and energy sector in both developing and developed countries. Such a proper functioning is often lacking, however. In a typical developing country the following features are only too commonplace: "The court system and judiciary may follow protracted procedures resulting in unreasonable delays and may be unable to enforce judgements. No system of commercial arbitration may exist. Even minor commercial disputes may remain unresolved for years. The local legal and accounting professions may be underdeveloped or, given the excesses of the regulatory framework, may perceive their role as agents of avoidance or evasion of binding rules. This situation makes investment decisions more difficult and costly for domestic and foreign investors alike."5 Other problems have also been noted by writers describing the judicial systems in developing countries in the context of the role of law in social change and development.6 In particular, they have observed cases in which the lack of independence necessary for judges to discharge effectively their function has been obvious, especially in disputes arising between the government, on the one hand, and individuals or corporate entities on the other hand. In many developing countries today, the judiciary is strongly influenced, if not controlled, by the executive or legislative branches either directly or indirectly. This influence is manifested in the appointment, promotion and removal of judges, in the determination of their salaries, allocation of budgetary resources required to carry out judiciary functions and, in certain situations, in the control of the outcome of judicial proceedings through special tribunals and quasi-tribunals. In addition, the judiciary may lack the experience and knowledge necessary to apply new legislation. In many cases, there is also a dire need for well-developed administrative and other facilities, including buildings, office space and equipment, and for appropriate systems for the communication of laws to the population at large. 5

Ibrahim F.I. Shihata, The World Bank and Private Sector Developmentâ&#x20AC;&#x201D;A Legal Perspective, in The World Bank in a Changing World 203, 227 (1991) [hereinafter Private Sector Development]. 6 For a review of some of these problems, see, for example, Lawyers in the Third World: Comparative and Developmental Perspectives (C. J. Dias et al. eds., 1981) [hereinafter Lawyers in the Third World]. See also, Universidad Externado de Colombia, Comparative Analysis of the Administration of Justice, a paper submitted to the IDE Seminar on "Justice in Latin America and the Caribbean in the 1990s," San Jose, Costa Rica, February 1993 [hereinafter Comparative Analysis].

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In addition, arbitration facilities and an appropriate legal framework for arbitration are not readily available in many countries. Typically, cases take years to be decided, whether by civil or penal courts.7 The predicament of the judiciary in many developing countries is most obvious in rural areas where "the judge frequently lives as something of a stranger among the people he is assigned to serve, lacking knowledge of their language and customs."8 With this background, it is not surprising that the ongoing structural economic reforms in many developing countries are leading governments to address the reform of the legal system, including the judiciary, as a necessary complement to economic reform. The subject is also gaining increasing recognition in development fora due in particular to its direct effect on good governance in the management of resources,9 and especially on the creation of a hospitable investment climate.10 ELEMENTS OF JUDICIAL REFORM Underlying any successful program of judicial reform are two basic prerequisites: (1) the building of consensus among the judiciary and in the other branches of the state on the relevance and importance of judicial reform and, based on this consensus, (2) an ensuing commitment to make available the required resources on a sustainable basis. Indeed, lack of funds is among the principal reasons for the understaffing of judicial positions and inadequacy of court buildings and other facilities that together account for the congestion of courts prevalent in most countries. Almost every judicial reform program must therefore attempt to tackle the issue of budgetary constraints, as is the case in any reform program of an institutional nature. It would be a mistake, however, to reduce the question of judicial reform simply to a financial issue and to believe that increasing the funds available to the judiciary would automatically alleviate the congestion of courts or upgrade their services. As will soon be seen, the process has many elements; for its successful implementation, financial resources constitute only one of the basic prerequisites. Among the issues to be addressed in a developing country's judicial reform program, the following may prove to be crucial elements. Such elements are not of course a substitute for, but should rather be considered a necessary complement to, the continued search for the causes of disputes with a view to reducing them through legislative and regulatory reform. This latter reform, which is a precondition for 7 For example, "in 1991 the Argentine civil law courts settled only 6 percent of the suits filed in that year; in Bolivia, the average duration of a penal suit is about 5 years; and in Paraguay, out of a total of 5,492 cases (499 a month) in 1992, only 409 had been settled by November of that year." Comparative Analysis, supra note 5 at 20. 8 Clarence J. Dias and James C. N. Paul, Observations on Lawyers in Development and Underdevelopment, in Lawyers in the Third World, supra note 5, at 337, 348. 9 For the relevance of certain governance issues to economic development, see Ibrahim F.I. Shihata, The World Bank and "Governance" Issues in its Borrowing Members, in Shihata supra note 4, at 53 [hereinafter Governance Issues]. 10 See, e.g., Ibrahim F.I. Shihata, Promotion of Foreign Direct Investmentâ&#x20AC;&#x201D;A General Account with Particular Reference to the Role of the World Bank Group, in Shihata supra note 4, at 237-70 and Private Sector Development, supra note 4.

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private sector development,11 would greatly benefit from comparative experience in other countries and should keep abreast of developments in legal science and the constant attempts towards harmonization and unification of law, on the regional and universal levels. Role of the Judiciary While the judiciary is generally seen as the arbiter of legal disputes and the provider of criminal justice in the society, the scope and boundaries of the judicial function differ from one legal system to another and, indeed, from one country to another. Greater differences in this area may also be found in jurisprudential writings. One extreme view claims that the only true law is judge-made law.12 Others assert that "[jjudges make law only in the way that electrons make physics, amoeba make biology and Trobriand Islanders make anthropology."13 Another extreme position limits the role of the courts to merely declaring the law as issued by the legislature, the judge being nothing but the mouth that pronounces the law.14 A host of mainstream views concede, however, that the role of the judiciary is the interpretation and application of the law in specific disputes but differ in the acceptable latitude accorded to judges in the process of such interpretation and application. The fact is, courts under all systems apply existing law (legislation, binding custom and, in the Common Law system, accumulated judicial precedents) but occasionally have to fill gaps in applicable law, sometimes explicitly recognizing such lacunae and sometimes treating them under the cloak of "interpretation."15 In the increasing number of countries where the judiciary reviews the constitutionality of laws (usually through the highest court or a specialized constitutional court) judges can play a more active role in the preservation and promotion of constitutional principles and values as they interpret them. In these contexts, courts do play a role in lawmaking, although the extent of that 11

See Private Sector Development, supra note 4 at 225-32. See, e.g., Jethrow Brown, Law and Evolution, Yale Law Journal 29: 394 (1920); John Chipman Gray, Nature and Sources of Law, pp. 296, 366, 369 (2nd ed., 1927); Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457,461 (1897). Expressed in a more moderate tone, a similar view considered that "the utterances of the judges [are] the best evidence of the state of the law... [because]...in the end it is what the courts choose to say, the courts considered as an entire hierarchical system, that determines the substance of the law." Owen Dixon, Concerning Judicial Method, in Jesting Pilate, 154-155 (1965). 13 Felix Cohen, Ethical Systems and Legal Ideals 12 (1933). 14 See Charles de Secondat, Baron de Montesquieu, L'Esprit des Lois, Liv. XL, Ch. VI, at 181 (Edit, de Leyde 1749). 15 The rule against the bringing of a finding of non llquet prompts many, especially among civil law scholars, to claim that a legal system must be deemed to be complete as a necessity not only of logical, but also of social order. According to Kelsen, the theory of gaps in law is a fiction that enables judges to innovate new solutions when existing ones lead to inequitable results. See Hans Kelsen, General Theory of Law and State, 146-49 (1945). The absence of gaps in the legal order does not mean, however, that every legislation provides complete answers to every situation. It may be more realistic therefore to concede, as Justice Cardozo suggested, that the judge "legislates only between gaps. He fills the open space in the law." Benjamin N. Cardozo, The Nature of the Judicial Process 113 (2nd ed. 1949). 12

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role differs from one system to another; the "Common Law" and "Islamic Law" systems being the most explicit and the broadest in their recognition of such a creative role.16 While the question will remain controversial among scholars, three requirements seem to me to be essential from the practical viewpoint of having an appropriate system of administration of justice. First, the judiciary in a given country should, as a starting point, have a clear and uniform approach to the nature and extent of its role. The extent of the role of the judiciary is a basic feature of the legal system in every country and is usually defined through the highest court in the land which overrules decisions deviating from the generally agreed approach. Where different courts hold different or conflicting views on the extent of the judge's role, for instance, on whether the judge can abstain from applying a certain statute, unwanted confusion and complications may be expected. Second, while the legal codes of a country may deny a creative role for courts and refer them in the absence of text and custom to such sources as "natural law" or "the general principles of morality," it is probably more useful to concede, as the Swiss Civil Code does, that in such cases the judge will rule according to the rules he would have established had he had to act as a legislator.17 In doing so, one recognizes the need for developing a system to assist courts in the identification of appropriate rules. Such a system may result in what a well-known French scholar has termed "free scientific research" in the sense that it is removed from the action of positive authority and is based on objective elements identified only through scientific research.18 In this way, to quote Justice Cardozo, the judge would not "innovate at pleasure" but could "draw his inspiration from consecrated principles.. .exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life."19 Such a disciplined innovation may indeed be inevitable in the modern world in which sophisticated commercial practices reach from the developed to the developing countries through international business and 16

While both systems of law give the judge a great latitude in devising appropriate solutions in the absence of applicable rules, the common law system seems to allow the view that the judge should have the freedom "to do all he legitimately can to avoid [any rule which impairs the doing of justice] or even to change itâ&#x20AC;&#x201D;so as to do justice in the instant case before him. He need not wait for the legislature to intervene because that can never be of any help in the instant case." Alfred Thompson Denning, The Family Story 174 (1981). 17 "Selon les regies qu'il etablirait s'il avail afaire acte de legislateur." Code Civil (Suisse), Art 1. The Article adds that in such a case, the judge will draw his inspiration from the solutions sanctioned by the doctrine of the learned and the jurisprudence of the courts ("par la doctrine et la jurisprudence"). 18 See II Franfois Geny, Methode d'interpretation et sources en droit prive positif: essai critique 77 (1919). 19 Cardozo, supra note 14, at 141. This, after all, is how the common law developed, as recognized by Lord Evershed M.R. in his observation that "[w]hat might otherwise be haphazard and dependent far too much upon the sense and susceptibility of the individual judge, is here knit together by an academic quality, nonetheless scholarly because it is founded on custom and history, and other human qualities of experience that go to make up the Judicial Process." Francis Raymond Evershed, The Practical and Academic Aspects of English Law 30 (1956). See also M. Golding, "Principled Decision-making in the Supreme Court," in Essays in Legal Philosophy 208, at 218 (Robert S. Summers ed. 1970).

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finance, a process that often includes adapting and adopting international codes and statements of practice where no local rules exist, for example, in areas such as bills of exchange or letters of credit. Third, the judiciary should be conscious of the important role it ought to play in the protection of basic individual rights, especially in countries in which both legislative and executive powers are held by the government either because of the nature of the political system or because of emergency situations which allow governments to legislate by decree. In such situations, the judiciary constitutes the only safeguard against tyranny. While a constitution "does not demand the impossible or the impracticable,"20 the judiciary should be able to develop criteria to ensure that rules, including emergency rules, are applied in a nonarbitrary manner and only to serve the public purpose for which they are enacted.21 Thus, the challenge to legal reform programs in developing countries is not simply to outline the role of the judiciary in an unambiguous manner but, where necessary, to redefine it to enable the judiciary to ensure the most effective administration of justice under the prevailing circumstances. It could be argued that this goal may require a greater degree of activism by the judiciary, that is an expansion of its responsibilities to enable it to protect the individual from the abuses of government and deliver to the individual the promise of the welfare state. Such activism, if exercised, will have to come from within the judiciary itself, since it can hardly be legislated or mandated by the other branches of the state. For this reason, it would have to be exercised disinterestedly and with the greatest possible measure of objectivity, lest the process become one of individual judges independently "wresting the law to their authority."22 Independence of the Judiciary The notion of the independence of the judiciary has now been established in most developing countries through specific constitutional provisions or through appropriate legislation. This notion is rooted in the separation of powers doctrine, which, though hardly applied in an absolute sense, has long been advocated as a cornerstone in the checks and balances system characteristic of a democracy.23 In many developing countries, the independence of the judiciary is enshrined in their Constitutions24 or in statutes in order to protect the judiciary from political

Kiyoshi Hirabayashi v. United States, 320. U.S. 1375,1387 (1943) (with respect to the U.S. Constitution). 21 For a famous example of criteria to be devised by courts to limit the exercise of the government's encroachment on individual rights in a war situation, see the dissenting opinion of Justice Murphy in Toyosaburo Korematsu v. United States, 323 U.S. 214, 233-42 (1944). 22 Owen Dixon, supra note 11, at 158. 23 Separation of powers was early advocated by Montesquieu in L'Esprit des Lois, supra note 13. 24 See, for example, Constitution of Bolivia, Titre III, Article 117, which specifies that judges are independent in the administration of justice and are only subject to law; Constitution of Brazil, Title I, Article 2; Constitution of Turkey, Part I, Article IX; Constitution of Hungary,

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pressure and other influences, especially from the executive branch, which may interfere with its objectivity and independence. In several cases, this substantive judicial independence is assured by the protection of the personal independence of judges through the guarantee of tenure for judges, the safeguarding of their salaries and strict constitutional or statutory safeguards for their removal from office (only in cases of misconduct or proven incapacity).25 It is only in such an environment of substantive and personal safeguards that judges are assured a degree of independence conducive to the impartial administration of justice. However, examples exist in some developing countries where the executive branch has unilaterally dismissed judges for decisions unfavorable to the government. An extreme incident took place in Ghana in 1963, when a panel of Supreme Court judges acquitted several persons who were charged with subversion by the executive branch. The Government took action against the judges and finally dismissed them after obtaining in 1964 a constitutional amendment giving power to the President to dismiss judges for any reason that seemed to him to be sufficient.26 The predicament of the judiciary in many African countries, which may also be true in a host of other developing countries, was explained by the fact that: "It would seem that on the whole governments in the newly independent countries hanker after the simplicity of the colonial arrangement, with the primary aim of the courts to uphold the power of the State, enforce its laws and provide stability. The courts' function of protection of the individual from the abuse of power is relatively new and less well appreciated.... In any event until the people develop values to guide their courts, other than that of upholding state power, the constitutional enactment of the separation of powers is bound to remain largely a declaration of intent."27 The importance of the independence of the judiciary has led some countries in Latin America to provide in their constitutions that a certain percentage of the government's annual budget (6 per cent in the case of Costa Rica) should be devoted to the judiciary. The executive branch would thus have no means to influence the judiciary through budgetary allocations. The predetermination of the judiciary's financial needs in such an arbitrary manner may not be advisable, however. What is Chapter X, Â§ 50; Constitution of Egypt, Part Four, Article 65; and Constitution of Burkina Faso, Titre VIII, Article 129. 25 For a detailed discussion of the "substantive" and "personal" independence of judges and their application in one country, see S. Shetreet, Judicial Independence and Accountability in Israel, 33 Int'l & Comp. L. Q. 979 (1984), where the author concludes that judicial independence in that country should be strengthened by restricting executive control over judicial administration and revising the method of preparation of the courts' budget. Also, for a review of the policies on the staffing of courts in the United States, Britain and France, whose practices sometimes influence those in developing countries, see Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of the United States, England and France (4th ed., 1980). 26 For a brief description of this case, see A.N.E. Amissah, The Role of the Judiciary in the Governmental Process: Ghana's Experience, 13 Afr. L. Stud. 4 (1976). 27 Ibid., p. 21.

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important is that the judiciary should have a say in the planning and allocation of its budget and that the resources allocated to it should meet adequately the needs of modernizing and upgrading its services according to well thought out programs that receive the broad support of the legal community and the society at large. While the independence of the judiciary is an important element of a judicial reform program, it should be recalled, however, that such independence is not an end in itself. Rather, it is a means to achieve the goal of the impartiality of the judge and the fairness of judicial procedures.28 This, along with the great expansion in the role of courts in modern societies, have led to the growing recognition that judicial independence ought to be coupled with judicial accountability and that judicial immunity cannot therefore be an absolute concept.29 Indeed, the liability of judges for "wrong" judicial decisions is being recognized increasingly, albeit within certain limits, in developed countries.30 The principle of the independence of the judiciary should not therefore mean that judges be free from any responsibility; it does suggest, however, that disciplinary action should not be left to the executive branch of government. While some countries entrust their parliaments with such a function, it might be more appropriate to vest formal administrative powers over the judiciary in a judicial disciplinary tribunal or council consisting mainly of senior judges, but with significant participation of respected persons from outside the judiciary. Such a council can be of an ad hoc or permanent character. In any case, a transparent and open system should be in place to enable litigants and their counsel to request that judges disqualify themselves from considering the dispute in cases of conflict of interest or prior involvement and to make complaints regarding the incompetence, prejudice or corruption of judges subject to strict safeguards against the abuse of such procedures. Indeed, judicial accountability and the transparency it requires are necessary corollaries to the independence and security which must be accorded to the courts. Security of Judges, Prosecutors and Other Judicial Officers Closely linked to the question of the independence of the judiciary is the issue of security of the judges, both personal and financial. In a few countries, members of the judiciary lead a risky life that requires physical protection from the threats of organized crime and at times from persons in power. Their ability to perform their duties independently and conscientiously under such circumstances becomes a matter of concern and a primary duty of the state.

28 See Mauro Cappelletti, 1983, Who Watches the Watchmen: A Comparative Study on Judicial Responsibility, 31 American Journal of Comparative Law 31:1 and 16. 29 Ibid., pp. 3-17. 30 Ibid., pp. 11-12 and 53-62, where the author concludes by suggesting a "responsive model" that combines a reasonable degree of political and societal responsibility of judges with a reasonable degree of legal responsibility without, however, either subordinating the judges to the political branches, to political parties and other societal organizations, or exposing them to the vexatious suits of irritated litigants.

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Security of tenure has also been mentioned as a means of promoting the independence of the judiciary from the other branches of government. Equally important is the adequacy, not only of remuneration but also of post-retirement pensions and other benefits. While the former provides financial security that reduces the vulnerability of the judiciary to bribery and corruption, the latter provides judges with the insurance needed for the carrying out of their function without the fear associated with an early or abrupt retirement without a secure income. A judiciary that is constitutionally independent will still fail to meet the needs of society if low salaries and a prevailing atmosphere of corruption combine to undermine such independence in practice or to select out potential candidates to judicial appointment who are the most capable and honest. Simplification and Streamlining of Judicial Procedures The objective of this area of reform is to improve the efficiency of the system of administration of justice without sacrificing due process and the safeguards inherent in an appropriate judicial process. The methodology is to identify administrative bottlenecks, in other words, those procedures that create delays and backlogs, and then find ways of eliminating or alleviating them. It is imperative in this respect, however, to find appropriate solutions while maintaining for the parties the protection that was meant to be provided by the procedures that have proved to be cumbersome in practice, that is, to make sure that simplified procedures maintain the opportunity of a "fair hearing" for each party to the dispute. The processing of cases through the system can be accelerated by the implementation of procedures conducive to the expeditious review of cases, the elimination of duplicative or unnecessary measures and the replacement of written procedures with oral ones in certain situations. These improvements can be achieved through revisions of civil and penal procedure codes and the reorganization of court systems to create parallel streams for different types of cases, for instance, small claims tribunals and specialized courts for complicated types of cases such as bankruptcy cases. Where administrative courts do not exist, the creation of a separate system for administrative justice may be advisable in view of the highly specialized nature of this area of the law.31 Also along these lines are programs to introduce alternative dispute-resolution mechanisms. These may include informal procedures that emphasize the rapid settlement of disputes and ensure at the same time that justice is being provided for

31 Separate administrative justice is particularly known under the French-originated system of administrative tribunals grouped under the Conseil d'Etat (which, in certain countries, combines the judicial function with that of the government's legal advisor under two separate departments). This system allows administrative tribunals not only to award compensation for damages resulting from illegal or arbitrary administrative acts but also to annul such acts with immediate, and at times, retroactive effects. This annulment power may have created, however, certain rigidities especially in personnel matters and may account for the lack of innovation in the systems where the judiciary has this power.

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all.32 They may also include quasi-judicial tribunals in fields such as labor disputes, regulation of financial markets and restrictive business practices where membership may not be limited to magistrates and the tribunals may have investigative staff.33 Here again, one of the challenges is to ensure that these alternative procedures are carried out in an evenhanded manner, providing the parties with the same safeguards against arbitrary decision making as those available under the traditional judicial system. It has been reported for instance that congestion of appellate courts was alleviated in certain states of the U.S. through the use of "settlement conferences." In this system, "[t]he parties and their attorneys appear before a settlement conference judge, who may be a sitting judge, a retired judge or a seasoned staff attorney, depending on state requirements,"34 with the aim of encouraging early resolution of the dispute (as is more common under the so-called mini-trial system in private arbitration). Improving Judicial Management The objective of improving the efficiency of the system of the administration of justice can also be achieved through the introduction or enhancement of managerial and administrative functions of nonjudicial staff within the judiciary and the law enforcement agencies. Management and administrative personnel in the courts may thus be given increased responsibilities in "case load management" and may be trained in time-saving office technology skills. This could considerably reduce the nonjudicial duties of courts that often occupy a significant part of the judges' time. For this purpose, certain countries have appointed court administrators who manage all the administrative functions required of the courts, leaving the judges to decide only the disputes submitted to them, that is, to do the job for which they were appointed in the first place. Improved efficiency will also be achieved through the proper institutional allocation of disputes throughout the judicial hierarchy. As already mentioned, this may be achieved through the creation or strengthening of judicial and quasi-judicial tribunals of limited or local jurisdiction,35 as well as by the creation of specialist superior court divisions to deal with complex cases. In fact, the appointment of specialized administrative officers in the judiciary with appropriate managerial qualifications and experience could also facilitate plan-

For a discussion of alternative dispute settlement mechanisms in the U.S. context, see New Directions in the Administration of Justice: Responses to the Pound Conference, American Bar Association Journal 64: 50-1, 53-5 (1978). The Pound Conference was also known as the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, held in 1976. 33 See The 1991 Annual Report of the Chairman of the Development Coordination Committee, Development Issues 1991: U.S. Actions Affecting Developing Countries, p. 22 (1991). 34 See Roger A. Harrison and George W. Hersey, Appellate Court Congestion on How Do You Spell R-E-L-I-E-F?, Governing Florida 1(2): 11, (1991). 35 See B.J. Brown, Justice and the Edge of the Law: Towards a "Peoples' Court," in Fashion of Law in New Guinea, pp. 181-215 (B.J. Brown ed. 1969).

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ning for future court administration and budgeting, allow for better management of personnel matters, including career development and training, and improve the systems for procurement procedures, logistical requirements, physical installations and facilities, statistics and computer services, court libraries.36 Selection and Training of Judges and Other Judicial Officers As "the quality of justice depends more on the quality of the men who administer the law than on the content of the law they administer,"37 issues relating to the selection and training of judges become of paramount importance. The basic criteria in the selection of judges should be personal integrity, good judgement and professional legal expertise. The selection may best be made by the judiciary itself. While countries differ in the methods followed in the selection of judges and several methods may be appropriately followed in the same country, an entrance test of the personal and legal qualifications may be advisable. Many of the skills required for the judiciary are not taught at law schools. Nor are qualities such as personal integrity or good judgement. A rigorous selection process through written and oral tests and simulation exercises could therefore be useful in this respect, especially if followed by a reasonable period (two years for example) of technical preparation in a judiciary school for the selected candidates.38 This could constitute a good beginning for a system in which a judicial career is based on comparative merit, which is itself an important factor in judicial efficiency and distinction. The selection of able judges devoted to the promotion of justice and their education in a specialized institute do not obviate the need for continuous training throughout their careers. For laws to be properly applied, judges must not only be thoroughly familiar with the substance of such laws as they emerge, but also with the manner in which they are applied in fact. In many developing countries, significant pieces of legislation have been promulgated in new areas of the law, such as banking and securities regulation, to assist in the rapid economic development pursued by governments. Even when these laws are written in accordance with the legal traditions and in language familiar to the judiciary (which is not usually the case), judges may still have difficulty in their interpretation or application. This difficulty may also be faced by legal practitioners across the country. The matter becomes more complex when, as is often the case, such laws are promulgated without taking into account the socioeconomic, political and cultural milieu in which they will be 36

For details on judicial management, see I. Lavados Monies and J.E. Vargas Viancos, Judicial Management, a paper submitted to the IDE Seminar on "Justice in Latin America and the Caribbean in the 1990s," San Jose, Costa Rica, February 1993. "Evan Haynes, The Selection and Tenure of Judges, p. 5 (1944). 38 For a description of the specific objectives of a judicial institute, which go beyond training in the required juridical skills and reasoning to include ethical values, the role of the judge in society, etc., see G. Hermosilla Arriagada, Training and Continuing Education for Judges, paper submitted to IDE Seminar on "Justice in Latin America and the Caribbean in the 1990s," San Jose, Costa Rica, February 1993.

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implemented. The situation is further complicated in those countries that are ruled by military governments or other forms of dictatorships, which lack the benefit of a legislative branch to debate draft laws and provide the legislative background (travaux preparatories). To ensure their effectiveness, judges should thus undergo continuous training and study programs to bring them up to date with new laws, especially in the relatively complex areas of economic law such as the laws and regulations governing banking transactions and operations, capital markets and securities, bankruptcy, mining and petroleum, trade in intangibles and futures, etc. Continuing study programs are in fact a feature of the preparation for judges in several developed countries. The issue is more relevant in some developing countries where law schools have become a last resort in university education, typically attracting the least-qualified applicants and admitting the largest numbers of students, with obvious negative effects on the quality of their graduates. Some judicial reform programs in developing countries have thus involved the training of the legal profession as a whole in economic and business law, including the upgrading of law schools by strengthening their curricula and orienting them to deal with practical cases and to provide students with the basic skills needed in the various aspects of the legal profession (rather than the simple lecture method followed in most of these schools at present). Independently from the judges' qualifications and training, the efficiency of the courts also depends in part on the work of process servers, court clerks, transcribers and executors of judgements. The effectiveness with which these individuals carry out their activities contributes to the expeditious administration of justice. As staff to the judicial branch, they are also affected by the budgetary constraints referred to above; in many countries they are underpaid and not qualified to carry out their functions. More often than not, this invites corruption at the lower level of the judicial service, which seriously affects the overall performance of the judiciary. It should also be noted that this support staff is especially affected by the lack of appropriate institutional facilities, including computing systems and in many cases even modern typewriters. Thus judicial reform programs should address the upgrading of such services and training programs should equally reach such lower level officers. These comments apply, perhaps more forcefully, to the recruitment and training of others in the judicial hierarchy who preside over courts and tribunals of limited or local jurisdiction, which are increasingly established to reduce the load on ordinary courts by handling the majority of minor civil and criminal actions. Institutional Facilities The budget deficits affecting all branches of government in the face of the serious economic problems confronting developing countries since the late 1970s and the need for governments to take severe measures to assist in the structural adjustment of their economies have often resulted in inadequate allocation of resources necessary for the maintenance of institutional facilities, such as offices and courts. Major difficulties are encountered in the maintenance of proper archives, acceptable storage facilities for court records and modern office equipment, such as typewriters, computers and copying facilities. In some African countries, it is not uncommon to find

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equipment dating from the colonial era more than 20 or 30 years after independence. The financing of buildings and equipment for courts is therefore a typical component of judicial reform programs in developing countries. In a period of budgetary constraints, the acquisition of books, particularly law books, and the maintenance of up to date libraries have not been found in many developing countries to merit high priority. Indeed, the publishing business in many of the least developed countries has ground to a halt and seldom includes legal publications. Few court buildings include a law library and judges typically write their decisions at home, relying on their limited personal acquisitions. This necessitates the inclusion in reform programs of the establishment and maintenance of a basic law library or libraries including the reference books and periodicals most likely to be in demand. Legal Information Systems In some developing countries it is not surprising to find that laws promulgated by the government are either published in very limited quantities or not published until a significant time has passed. In a few cases, laws have not been published at all for years. The problem is especially acute in some francophone African countries where Official Gazettes have not been published for two decades. This means that the substance of the law is very often known only to a few individuals. This nonexistent or reduced publication of laws and the paucity of books in law libraries for use by the legal profession and the public at large has hampered legal research activities and the development and application of laws in many countries. Without the prompt publication of judgements, both judges and legal practitioners are also hindered in the carrying out of their respective activities. Judicial reform programs must therefore assure that laws, regulations, and court decisions are regularly published in a timely manner, are efficiently indexed so as to facilitate reference to them and are made available in public places. This requires the development of modern legal information systems with adequate resources to cover their costs, and as a minimum, the regular publication of laws and judgements. Access to Courts: Fees and Costs Court fees and costs can be used to regulate the number of claims instituted in the court system by discouraging frivolous claims. However, these same fees and costs can act as a barrier to the access of the poor to the judicial system. In order to ensure respect for the principle of "justice for all" while preventing the build-up of a backlog of cases by discouraging frivolous litigation, it is important for the court system to set court fees and costs at a reasonable level that necessarily will vary from one country to another. To the extent that these fees prohibit the access of poor, legitimate claimants, it is essential that society, through the judicial system or otherwise, provide financial assistance to these litigants. This could either be achieved through public and private legal aid schemes which could cover poor litigants' expenses, following a preliminary screening of the seriousness of their

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Availability of Arbitration and Other Alternative Facilities Many developing countries have traditional systems of arbitration which are separate from the official dispute settlement systems. However, these traditional systems are hardly suited for use in the settlement of disputes arising in the context of complex modern commercial transactions. They are particularly inadequate for dealing with disputes arising out of foreign investments in developing countries. While some countries have in their laws provisions relating to arbitration in cases of commercial disputes, many of these laws are also archaic and difficult to implement in contemporary circumstances. The establishment of new and modern arbitration facilities, including the promulgation of appropriate legislative frameworks and the training of arbitrators, may therefore be an important component of a comprehensive judicial reform program. The same may also be true for nonbinding conflict resolution mechanisms such as mediation and conciliation that may be particularly effective in the context of certain cultures such as those in the Far East and in Arab countries. For these to be effective, however, an elaborate system should be devised for the procedures to be followed in the selection of the mediators and conciliators and the rules to be applied by them in handling the cases. WORLD BANK JUDICIAL REFORM ACTIVITIES Examples of World Bank-financed Projects According to the Articles of Agreements of both the International Bank for Reconstruction and Development (IBRD) and its affiliate, the International Development Association (IDA),39 the principal mandate of these agencies (which have a common staff and governing bodies) is to promote the economic development of their member countries, primarily by providing loans (called "credits" in the case of IDA) and guarantees for the financing of specific projects, including projects of technical assistance. From its early years of operation, the World Bank has recognized that political stability and sound economic management are basic prerequisites for economic development. Its Articles of Agreement, however, prohibit the Bank from: (a) being influenced by the "political character" of its member countries; (b) interfering in the political affairs of any member; and (c) allowing political factors or events to influence its decisions. Political considerations are therefore irrelevant to the Bank's work, unless it is established that they have direct and obvious economic effects relevant to its work, in which case such economic effects may be

39 In this paper the two institutions are together referred to as the "World Bank" or the "Bank" unless the context otherwise indicates.

claims, or through a means test administered by the courts that would excuse from payment those individuals who meet certain requirements.

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taken into account.40 In the meantime, the Bank, as an exception to its main statutory activity, may, under the Articles of Agreement, finance activities other than specific projects as long as these would fall under its general mandate in assisting a member country to stabilize or revive its economy and thus enhance or facilitate investment for productive purposes in its territory. Lending for other than specific projects has in fact expanded since 1980 and accounts at present for some 25 percent of total annual commitments, mostly in the form of structural or sectoral adjustment loans. These loans finance general, and often unspecified, imports by the borrower in the context of its implementation of reform programs agreed to with the Bank.41 Activities such as civil service reform and legal reform have been found to be relevant to the maintenance of "good order" in the management of a country's resources through the introduction and implementation of appropriate rules and institutions and were therefore distinguished from the typical exercise of political power to manage the country's affairs generally, which falls beyond the Bank's mandate. As General Counsel to the Bank, I had no difficulty in reaching the conclusion that the Bank may favorably respond to a country's request for assistance in the field of legal reform, including judicial reform, if it finds it relevant to the country's economic development and to the success of the Bank's lending strategy for the country.42 Such a response may take place in the context of a specific project loan or as part of the reform measures to be implemented under an adjustment loan. In either situation, the Bank's involvement can only take place at the request of the country concerned. Consistent with this view and recognizing the constraints faced by several of its borrowing countries in the administration of justice and the relevance of this matter to their economic and social development, the World Bank has, in recent years, responded favorably to requests by countries for financial assistance in this field. In practice, such activities have increased considerably as several borrowing countries embarked on private sector development programs aimed at improving the enabling environment, as in many Latin American and African countries, or at transforming the very nature of their economies, as in Eastern European and former Soviet republics. In this context, the Bank's Legal Department emphasized at an early stage the importance of having a sound legal framework, properly administered and enforced, for creating an environment conducive to business development.43 The various

40 This conclusion was reached in a paper submitted by the author to the Bank's Executive Directors in December 1990. For a detailed discussion of this subject, see Governance Issues, supra note 8. 41 See Memorandum of the Vice President and General Counsel, Authorized Purposes of Loans Made or Guaranteed by the Bank, dated May 10, 1988 (SecM88-517). 42 Governance Issues, supra note 8, at 89. This conclusion was reached after maintaining that "[l]egal reform requires profound knowledge of the economic and social situation in the country involved and can only be useful if it is done by the country itself in response to its own felt needs." The Bank's role in this area was thus described as assisting the country in its reform efforts. 43 See The World Bank, Legal Department, The Role of Law in Private Sector Development: Implications for the Bank's PSD Action Program (discussion paper) (1989), summarized in Private Sector Development, supra note 4 at 225-230.

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activities financed by the Bank in this context in the last two years have involved many of the elements of judicial reform discussed earlier in this paper. The Bangladesh: Financial Sector Adjustment Credit44 financed activities to enhance the independence of the judiciary. The court system in Bangladesh used to take an average of 10 to 15 years to dispose of suits brought by financial institutions against defaulting borrowers. As a result, the transaction costs were extremely high and collection rates were very low. With the assistance of the Bank and the International Monetary Fund, Bangladesh enacted a Financial Loan Courts Act in 1990 that established special commercial courts in the major economic centers of Bangladesh, whereby financial institutions could bring actions against defaulting borrowers and the loans could be adjudicated. Progress, which to date has been positive, is being monitored under the project and has involved the establishment of courts, the appointment of judges and the disposal of cases. In the same vein, the credit made by IDA for the Guinea Private Sector Promotion Credit45 supported the preparation and implementation of a legal reform program to strengthen the legal system, including training of members of the legal profession, and in particular members of the judiciary. In this connection, the deficient functioning of the judicial system and the legal void on commercial bank sureties were identified as major constraints for banking activity in the country. Banks were found to be unable to enforce their rights as creditors through foreclosures or other court-approved actions, due in particular to debtor-judge collusion and rampant corruption. This operation was a modest attempt at addressing these problems and is meant to be followed by training of the judiciary and other members of the legal profession in banking and commercial matters and by improvements in the material working conditions of the courts. In addition to the above-mentioned projects, the Bank recently has made a grant from its Institutional Development Fund (IDF)46 to Argentina to assist in the financing of a diagnostic review of the judicial system of Argentina. This review will focus on the role of the federal courts and the national courts in Buenos Aires and will deal with issues relating to the operation of these courts, including court procedures, case management, the efficacy of the procedural codes and other procedural rules as well as alternative dispute resolution methods, including arbitration, mediation, conciliation and small claims courts. On the basis of the recommendations emanating from the diagnostic review, the second phase of the program will be prepared. This will consist of a legal education program for judges, lawyers and the public and a training plan for court personnel in modern court-management practices. Upon completion of these two phases, a comprehensive report will be prepared for the consideration of the Argentine Government. Apart from these projects, the Bank has provided financing to cover the comprehensive strengthening of the judiciary, including the upgrading of institutional 44

Development Credit Agreement dated June 18, 1990 (Credit No. 2152 BD). Development Credit Agreement dated September 28, 1990 (Credit No. 2148 GUI). 46 The Institutional Development Fund was established by the Bank as a grant facility, effective as of July 1, 1992, designed to fill gaps in the Bank's instruments for financing technical assistance associated with policy reform measures undertaken by its borrowing countries. 45

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facilities, such as court houses and buildings, and the acquisition of equipment and improvement of libraries. A number of recent operations approved by the Bank are noteworthy in this respect. A landmark operation is the Venezuela: Judicial Infrastructure Project,47 approved by the Bank's Executive Directors on August 7, 1992, which is described below in some detail. Although it by no means covered all or most of the elements of judicial reform listed earlier in this paper, it was the first operation in which the World Bank made a loan exclusively for the purpose of judicial reform. The objectives of this project are: to assist Venezuela in reducing the private and social costs of the administration of justice and to improve the enabling environment for private sector development in Venezuela. This will be done by: (a) improving efficiency in the allocation of resources within the judiciary; (b) increasing courtroom productivity and efficiency; (c) strengthening the institutional capabilities of the institution in charge of the management of the judiciary, that is, the Consejo de la Judicatura (the Consejo) to perform its functions; (d) strengthening the institutional capabilities of the Consejo's institute, known as the Escuela de la Judicatura (Escuela), to perform its functions; (e) strengthening the capabilities of the judiciary personnel to perform their respective functions; and (f) improving the physical condition of the courts. The components of the project financed by the Bank include the hiring of consultants and the carrying out of studies on: (a) the necessary level of budgetary allocations required for operational supplies of the Venezuelan courts; (b) the adequacy of salaries of the judicial personnel in general, including job descriptions, classifications, salary entry levels, and recommendations on criteria for recruitment, promotion and salary increases; (c) budgeting and strengthening of financial management of the judicial system; (d) the development of court performance indicators; (e) the development of an inventory of court buildings and equipment, of standard models of courtroom design, and a long-term investment plan for future physical infrastructure requirements, of a pilot court system and an analysis of training needs of the Consejo staff; (f) policy and technological changes for storing court records and current policies and regulations in respect of court fees and judicial deposits; (g) the design and installation of communication networks within the Consejo; (h) the strengthening of administrative capacity of Consejo staff in the regional offices; (i) the identification and evaluation of, and recommendations on, the existing alternative dispute resolution methods; (j) an alternative means to improve access to the courts for the poorest segment of the Venezuelan society; (k) the private costs of litigation; (1) alternative computerized data base on statutory and case law; (m) priority areas identified in procedural law related to the project objectives; and (n) other technical assistance, including studies, related to the objectives of the project. Training will also be financed with the proceeds of this Bank loan to Venezuela, inter alia, for: (a) Directorates of the Consejo dealing with financial management and policy analysis; (b) statistics (c) administration; (d) personnel; (e) auditing; (f) record keeping; (g) the Inspectorate Directorate staff in monitoring the reliability of court statistics; and (h) court management and supervision. Financing will also be provided for the acquisition of vehicles and office equipment required for the management 47

Proposed Loan Agreement (Loan No. 3514 VE).

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information system, statistical analysis, communication networks within the Consejo and for supervision of the courts by the Consejo. Technical assistance will also be provided to: (a) determine training needs of judicial personnel; (b) develop course curricula for in-service training of judicial personnel; (c) organize training programs for potential instructors among judicial personnel to improve their teaching capacity; (d) develop an evaluation methodology for in-service training courses; (e) deliver and evaluate pilot courses; (f) develop a long-term in-service training plan; (g) study tours for staff members of the Judicial Advisory Commission and potential instructors; and (h) organize regional and national conferences for judicial personnel. The judicial personnel in Venezuela will also receive training in management and selected substantive and procedural legal subjects. The Venezuela project also includes a program to modernize the system of court administration consisting of (a) the design and implementation of organizational models in selected courts and public defender's offices; (b) the provision of legal reference materials, (including procedural legislation and case law) and office equipment; (c) the provision of technical assistance to review all laws, decrees, Consejo's regulations and other pertinent norms regarding court administration for purposes of developing a consolidated manual to be utilized by judicial personnel; (d) the provision of training in software and hardware by court personnel. In addition, the Venezuelan project includes a program to improve the physical condition and availability of court buildings consisting of: (a) physical improvements in selected courts and public defender offices; (b) the construction of 250 courts in various states in Venezuela; and (c) the upgrading of approximately 350 courts throughout Venezuela (primarily to enhance privacy in court operations, improve security spaces for records and equipment and upgrade electrical connections for computers). The credit for the Tanzania: Financial and Legal Upgrading Project48 is another recent example of the financing of judicial reform by IDA. In addition to financing activities relating to the strengthening of the Tanzanian Attorney General's Office and Tanzania's Law Reform Commission the credit will also finance activities designed to strengthen the judiciary in the area of commercial law developments and to streamline procedures to ensure the speedy disposal of cases. These activities include training of High Court judges, resident and district magistrates, registry assistants and registrars of the Court of Appeal and High Court. The proceeds of the credit will also be used to upgrade the High Court's library including the streamlining of procedures, acquisition of books, legal journals and material and training of library assistants. In addition, typewriters and computers will be acquired for use by magistrates and the High Court registries in Dar-es-Salaam and 11 zonal centers. Funds will also be provided to assist in the publication of the Tanzania Law Reports. As is the case with the Tanzanian project, a credit has recently been approved to provide assistance to Mozambique to support a comprehensive list of legal institutions in that country. The Mozambique: Capacity Building, Public Sector and Legal Institutions Development Project49 includes several of the elements described in 48 49

Development Credit Agreement dated September 4, 1992 (Credit No. 2413 TA). Proposed Development Credit Agreement (Credit No. 2437 MOZ).

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Section II of this paper, including the training of judges and court staff, provision of financing to improve institutional facilities (including legal information systems), acquisition of books for law libraries as well as support for a new Center for Judicial Studies. A few projects that involve the establishment or the improvement of arbitration facilities have also been financed or are in the process of being prepared for financing by the Bank. In the context of Cote d'lvoire's Financial Sector Adjustment Loan,50 it was agreed that the introduction of arbitration as a means to directly settle insurance claims would be another alternative for handling disputes and contribute to an expeditious settlement of them. In view of this, the Government of the Cote d'lvoire agreed to promulgate a law on arbitration to respond to this concern. This law, however, extends beyond insurance issues and covers all disputes arising out of general commercial transactions. The law has now been prepared, commented on by the Bank's Legal Department, approved by the Government and is about to be adopted by the Parliament. Further, at the request of the Government, a technical assistance operation is now under preparation that would include a component to provide logistical support and services in the establishment of a commercial arbitration center in Abidjan. The IDA has also been requested to provide assistance to the judiciary in the course of the preparation of a private sector development project in Senegal. This project has a component regarding the preparation of arbitration rules and the establishment of a center in support of its existing arbitration legislation. In this connection, the Bar Association and the Chamber of Commerce are working jointly on the establishment of an arbitration court in Dakar, the institutional framework of which may be supported by the proposed IDA operation. Finally, the Government of Bolivia, with the assistance of the Bank, is presently preparing a proposed public enterprise and privatization project which will include studies on Bolivia's administrative law (contencioso administrative) and enforcement of arbitration awards. Other Relevant Bank Activities In connection with its private sector assessments in its borrowing countries, the Bank normally carries out a review of the legal and institutional framework in areas of law relevant to that sector. These studies are being undertaken in the newly created democracies of Eastern Europe that are in the process of transforming their economies from command to market systems. A good example of this is the review carried out recently in Moldova where many of the problems indicated in Section II of this paper may be discerned. The recommendations emanating from that review indicate that, in order to ensure proper application of new laws that need to be promulgated, Moldova will have to take measures that will ensure the independence of its judiciary, provide the courts with clear and final authority to meaningfully resolve commercial disputes, provide training for its judges so that they can deal competently and efficiently with 50

Loan Agreement dated October 4, 1991 (Loan No. 3408 IVC).

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complex commercial disputes common in market economies, and institute systematic publication and wide dissemination of judicial decisions and legislative acts and regulations. Studies of this nature have also been undertaken in Armenia, Azerbaijan Republic and the Philippines. In Guinea, the Bank has recently assisted the Government in the organization and execution of a seminar designed to review the legal system of Guinea and to determine actions that ought to be taken to improve the administration of justice in that country. This highly appreciated seminar led to a request by the President of Guinea to IDA for assistance in the design and possible financing of a legal sector development project. A similar seminar has been undertaken in the Central African Republic and a legal sector development project is in the initial stages of project preparation. Available Instruments of Bank Support to Judicial Reform As is clear from the examples cited above, the Bank's response to the needs of its borrowing countries to reform their judicial systems has not only had varying components but has taken place by virtue of different instruments. These have included: • a free-standing loan for judicial reform as a self-contained project, the only example so far being that of the loan to Venezuela; • project loans of a broader scope (normally of an institutional development character) that include judicial reform as a component of the project, such as the credits to Guinea, Mozambique and Tanzania; • components of the measures to be implemented under an adjustment loan, such as the sectoral adjustment credits to Bangladesh and Cote d'lvoire; • studies and pilot projects financed by a grant from the recently established Fund for Institutional Development, such as the recent grant to Argentina; and • other studies, seminars and conferences organized in the normal course of preparation for Bank operations such as the recent review for Moldova and the seminars in the Central African Republic and Guinea. The choice among these instruments is normally based on practical considerations relevant to the overall Bank lending program to the country and the timeliness and convenience of the forms of support available to it. Like in other instances of financing technical assistance and reform programs, borrowers are not advised to embark on borrowing for such purposes unless they are seriously committed to following through with the implementation of the reform programs. Adding further studies to dusty shelves is obviously a waste of scarce resources. It may also be noted that institutional reforms require for the most part the financing of local costs which may also be of a recurrent nature. External development finance agencies normally have certain limitations on the financing of such costs. Recurrent costs in particular cannot be financed in perpetuity from external sources. The Bank's readiness to be involved in the financing of judicial reform programs, whether directly or through counterpart local funds generated under adjustment loans, should not therefore be seen as a normal or permanent feature of its operations. Rather,

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it is a complementary measure to be considered for those countries that are keen to implement such reforms and lack the means to do so through their own resources. It should also be noted that the Bank's readiness to assist in judicial reform and its actual involvement in this area since 1990 are limited by the Bank's mandate as defined in its Articles of Agreement. As explained earlier, such mandate is not so broad as to cover any reform in the Bank's member countries but is formulated mainly in terms of the financing of specific projects for productive purposes. Although this mandate has been interpreted to cover assistance in economic development in a broad sense, it cannot, in the view of this writer, be stretched so as to cover broader reform issues such as those of a clearly political character or those far removed from the facilitation of investment for productive purposes such as the efforts related to improving the conditions of prisons. The Bank therefore is not as free in the area of judicial reform as other agencies such as the United States Agency for International Development (US AID), which has actively pursued judicial reform for over 10 years without necessarily limiting its activities to reforms related to economic development.51 DISPUTES WITH FOREIGN INVESTORS An area of conflict resolution which deserves special treatment in an overall review of the judicial system in a given country is the settlement of disputes that arise between the government and a private investor who is the national of another country. Typically, foreign investors in developing countries request that this type of dispute be settled through independent arbitration, preferably outside the host country concerned. The issue seldom arises in developed countries, where governments rarely enter into contractual relationships with foreign investors and where the history of dispute resolution before national courts in this field has not been particularly controversial. In developing countries, by contrast, the question has been fraught with problems and has often led to the espousal of the claims of many western investors by their governments. Such espousal, under the international law doctrine of diplomatic protection, has repeatedly ended in international adjudication or arbitration and, in times past, in the actual resort to force. Developments in Latin America in particular led to the evolution of a negative attitude towards international arbitration and to the emergence of the Calvo doctrine enshrined in many constitutions. In this context, the Calvo doctrine requires that disputes between a government and foreign investors be settled by national courts according to national law. However, this principle does not deprive the governments of such investors of the right to espouse the claims of their nationals. Such espousal, which escalates the disputes to the arena of international law, is likely to remain a common practice unless the country of the investor waives it in advance, for instance in the context of an international mechanism for the settlement of disputes agreed upon by treaty. 51

See, Agency for International Development, Bureau for Latin America and the Caribbean, Office of Democratic Initiatives, The Administration of Justice Program in Latin America and the Caribbean, p. 1, (1992).

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The attitude of developing countries in general (and Latin American countries in particular) towards international arbitration is changing, however, especially as a result of the development of new mechanisms of arbitration which address the major concerns of these countries. I have in mind in particular the arbitration facilities of the International Centre for Settlement of Investment Disputes (ICSID).52 ICSID was established over 25 years ago under a multilateral Convention, prepared by the World Bank and known as the 1965 Washington Convention. In accordance with this Convention, ICSID provides facilities for the conciliation and arbitration of legal disputes arising out of an investment between a member country of ICSID and a national of another member country. The World Bank sponsored the establishment of ICSID in the belief that the availability of a dispute settlement machinery of this kind could help to promote increased flows of international investment and would thus serve the interests of its developing member countries without undermining their rights. The jurisdiction of ICSID tribunals is based on the mutual consent of the parties to the dispute. Membership of ICSID does not by itself imply acceptance by the state of such jurisdiction. Resort to ICSID deprives the state of the investor from exercising diplomatic protection in its favor. Furthermore, ICSID tribunals apply, in the absence of agreement by the parties an applicable law, the law of the host country (complemented by such rules of international law as may be applicable). And the host state may require the foreign investor, as a condition of the state's acceptance of ICSID's jurisdiction, to exhaust local remedies. The World Bank covers the cost of ICSID's Secretariat, which charges the parties to a dispute only the actual cost of the proceedings including a fixed per diem for the arbitrators. There is hardly a mechanism for international arbitration that is more favorable to developing countries desiring to establish a hospitable environment for foreign investment. Since it was opened for signature in 1965, over 120 countries have signed the ICSID Convention. Of these, 107 countries have also ratified the Convention and have thus become members of ICSID. The member countries include some 80 developing countries, few of which are Latin American countries. It is for this reason that I conclude this paper, which addresses judicial reform in developing countries, with particular emphasis on the Latin American region, by calling the ICSID system to the attention of those concerned with enhancing the attraction of their investment environment to foreign investors.

52 For an explanation of the ICSID system and its advantages over an insistence on the strict application of the Calvo doctrine see Ibrahim F.I. Shihata, Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA, in Shihata supra note 4, at 309 (also available as an ICSID publication in English and Spanish).

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International Cooperation in the Administration of Justice

James H. Michel Acting Administrator, United States Agency for International Development

At the outset, I want to express to the President and officers of the Inter-American Development Bank my admiration for their foresight in conceiving and organizing this timely and important conference. Also, I would like to use this opportunity to express appreciation to the Government of Costa Rica, and especially to Minister of Justice Elizabeth Odio, for hosting this historic event. A PERIOD OF CONVERGENCE AND CONSENSUS The Americas are going through a remarkable period of convergence and consensus that has profound implications for all of us, and for future generations. Historic divisions and conflicts—chasms of geography, culture, ethnicity, and divergent political and economic interests—are being overcome by shared values of democratic societies and by common interests of trade and investment among open markets. There is unprecedented reason for hope that, 500 years after the initial encounter between indigenous and European cultures, we have at last embarked upon an era of interAmerican cooperation based on mutual responsibility, mutual benefit and mutual respect. Latin America has been undergoing what Enrique Iglesias has aptly called "the silent revolution"—silent in comparison to the more dramatic and highly publicized events in Central and Eastern Europe and in the former Soviet Union, but equally profound. • Just 15 years ago, only about one-third of the region's countries had elected civilian governments. Today, an unprecedented 96 percent of the Hemisphere's population lives under elected civilian rule. The principal exceptions, Cuba and Haiti, are recognized by all as failed anachronisms whose authoritarian systems cannot long endure.

Chapter 20

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• The collapse of the statist economies of the former Soviet Union and its satellites has served only to confirm what many leaders in Latin America had already concluded—that market forces work and that excessive government controls, distortions and interventions retard rather than advance development. Most Latin American leaders now agree that prospects for economic growth and the well-being of their people lie with the adoption of open, market-based economies. The most successful have been those that have adopted and sustained sweeping economic reforms that have contained budget deficits, limited excessive monetary emissions, eliminated import and export licensing requirements, reduced and simplified import tariffs, privatized government enterprises and opened major industries to greater national participation and international competition. These political and economic reforms, and the consensus which supports them, are interconnected and reinforce each other. As citizens in more democratic societies are better able to participate in public policy issues, governments will be increasingly pressed to deliver broader participation in the economy and sustainable economic growth. Economic progress, in turn, is broadly recognized as crucial to sustaining the still fragile process of deepening the democratic transition and strengthening the institutions of democracy. Further, the incentives for policy makers to be responsive to voters and to engage successfully in the global economy are beginning to produce new and encouraging efforts to improve the efficiency and effectiveness of social policies in such fields as primary education and preventive health care—and these efforts are essential to reduce the poverty that so many still suffer. ENCOURAGING RESULTS Thus far, there is reason for hope that the gains being realized by the new consensus will succeed in causing the promising trends to represent a fundamental change of direction and not just another swing of the pendulum. • On the political front, elected governments are succeeding elected governments, bringing unprecedented stability. Legislatures are gaining experience and skills in representing constitutents, exercising oversight and producing technically sound legislation. Judicial reforms are increasing resources available to this long-neglected branch of government. Decentralization is shifting the locus of decisions from anonymous officials in distant capitals to local and municipal authorities, facilitating public participation. The press is increasingly willing to report on controversial issues that previously had been shielded from public debate. Citizens are organizing themselves in labor unions, professional associations and community groups in order to have a more effective voice on public issues that affect their lives; the number of legally constituted nongovernmental organizations has exploded in recent years to more than 11,000. Citizens are demanding greater transparency and higher standards of ethical and efficient performance in the public sector. • Economic results are also encouraging, thus far. Overall growth for the region, which averaged less than 1.5 percent during the 1980s, is estimated to exceed 3.2

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percent in 1992. Inflation is being brought under control with only five countries showing rates exceeding 20 percent last year. Trade with the world grew by more than $100 billion in the five years from 1986 to 1991, and is estimated to have grown an additional $30 billion (to $330 billion) in 1992. Net capital flows have risen dramatically from less than $10 billion in 1989 to $57 billion in 1992. And, the burden of debt appears to have peaked and is becoming a shrinking percentage of a growing regional economy. But, the future, by definition, is unknown. It is sobering to reflect on the reality that trends usually do not continue, that change is the only constant. Democracy and economic progress in Latin America and the Caribbean will face many challenges. Some traditional elites will resist the loss of privilege. Some impatient populists will advocate that discipline be abandoned so that benefits can be accelerated. The corrosive influence of drug traffickers and the debilitating effect of epidemic disease and environmental degradation pose special threats. And the appeal of authoritarian solutions to complex problems remains disturbingly strong, especially in countries without well-established democratic traditions. THE IMPORTANCE OF THE ADMINISTRATION OF JUSTICE I need not elaborate upon why it is in the interest of the international community to see a continuation and a deepening of the trends toward broadly based and sustained growth and stable, participatory democracy in the Americas. But, of all the needs that exist, and of all the potential areas for international collaboration, why should the administration of justice be given priority? I first asked myself that question more than 10 years ago, in the darkest days of the political and economic crises that gripped Latin America. At that time, I concluded that without strong and respected institutions capable of guaranteeing in practice security of person and security of property, the aspirations of the people to participate in the benefits of liberty and economic opportunity could not be realized. It is the justice system that protects the citizen against common delinquency and against arbitrary or corrupt governmental misconduct. It is the justice system that provides an objective forum for resolving disputes on the basis of generally accepted norms, thereby facilitating peaceful commerce, economic competition and productive investment. And it is the justice system to which the citizen can appeal directly, without the intervention of bureaucratic or political or economic patrons, to apply the rule of law to safeguard that citizen's rights. Over the years, as the "silent revolution" has continued to sweep away authoritarian government and statist economic policies throughout the hemisphere, I have become even more convinced of the importance of the administration of justice. The evolution of democracy and economic and social development will increasingly depend upon the ability of the rule of law to extend the necessary radius of trust among the members of a complex, modern society. But, without adequate institutions to give effect to the rule of law, to make it a reality in human experience, contradictions will develop between declared ideals and everyday life. These contradictions inhibit citizen participation, investment, commerce and cooperation. To the contrary, they

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tend to foster distrust, cynicism, the seeking of unfair advantage, the erosion of democracy and impediments to development. During the past 10 years, the United States has undertaken a broad range of programs of bilateral cooperation with countries throughout Latin America and the Caribbean seeking to strengthen the administration of justice. These programs, financed primarily through the Agency for International Development in an amount exceeding $200 million, have involved practically every country in the hemisphere. They have involved law modernization and harmonization, management reforms, institutional development, professional training and exchanges, improvement of physical infrastructure (including automation and libraries), alternative methods for dispute resolution, combatting corruption, and a number of other themes identified through an ongoing process of dialogue as being of priority interest. Collaborators have included government ministries, courts and legislatures, as well as professional associations, universities, foundations and other nongovernmental organizations. Today, I am humbled to reflect upon the enormity and the endless character of the task of improving the administration of justice. As I have learned more about the complexities of the subject matter and observed the limitations on the role of international cooperation in dealing with those complexities, I have sometimes felt doubts about what the United States could contribute to the efforts under way in Latin America and the Caribbean. At the same time, it has been encouraging over the years to see a growing determination in many countries to convert the rule of law from a cherished but unattainable ideal to a practical reality. There has been impressive growth in the ranks of the reformers. We are now seeing other international donors initiate programs to respond to an increasing demand for improved administration of justice. It has also been encouraging to see a growing realization that there exists a positive correlation between the quality of political and civil rights in a society and economic and social well-being. There was a time when many academic "experts" were intrigued by the ability of authoritarian regimes to impose sound economic policies. Freedom could come laterâ&#x20AC;&#x201D;after the people were fed, healthy, educated and productive. But experience has shown that democracies have built-in incentives to deliver. Over the long term, there is an incompatibility between an open, marketdirected policy environment that is conducive to development, and a closed political system that denies participation and shields public institutions and officials from accountability. The World Bank has done pioneering work in analyzing the relationships among three factors: (1) the economic rate of return on development projects, (2) the policy environment, and (3) good governance that will sustain sound policies. There seems to be no dissent from the conclusion of the World Bank's studies that an objective and efficient system of justice is an essential characteristic of good governance. If the international community is going to be serious about fostering economic and social development, it must be concerned about the policy environment. And if it is concerned about the policy environment it must, in turn, be concerned about the political framework in which policies are made. Among other things, this means that there must be a system of justice that protects citizens against each other, as well as against abuses of official power, a system that is impartial in protecting the rights of

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the majority and of the minority, a system that helps maintain public order and provides timely and reliable indicators of how the laws will be applied so that productive economic activity is encouraged and participation in regional and global markets is facilitated. And so it seems appropriate to reflect upon what we have learned over the past decade about international cooperation in the administration of justice as we look forward to the challenges and opportunities that lie ahead in the 1990s. First, we have learned that effective and efficient administration of justice is far more than a technical matter. It is a reflection of the values and priorities of the broader society. If the people don't expect much of their justice system, elected political leaders won't give it a high priority. If the political leaders don't invest resources and support, the system won't be able to perform well. And if the system doesn't perform well, the public won't expect much of it. Breaking that vicious circle and achieving dynamism among the three elements of popular expectations, political will and professional and technical competence remain a major challenge for reformers. We have to keep thinking about the interaction among these three elements and resist the temptation to deal only with the technical aspects of projects. We have also learned that external support must not be intrusive and that donor resources cannot substitute for local initiative. Assistance in this sensitive sector must be open and transparent. It must support the reformers without becoming identified with particular factions or political parties. It must focus on long-term institutional development rather than on day-to-day bilateral issues. A noteworthy aspect of assuring respect for local initiative and avoiding the unsustainable importation of inappropriate models is the value of working with local institutions and regional organizations. Another is participation in arrangements involving multiple donors and multiple recipients so as to diffuse and diminish bilateral pressures. Within this framework of sensitivity, respect and awareness of the long-term and continuous nature of the process, international cooperation can make valuable contributions to improved administration of justice. • The international treaty law of human and workers' rights, the sale of goods, intellectual property, narcotics control and a host of other themes offers a source of useful models that can be drawn upon to foster the spread of more harmonized norms. We could all benefit from considering the body of work already done by the Organization of American States, the United Nations Commission on International Trade Law, the International Labor Organization and the Hague Conference on Private International Law, among others, as a source of national law. • The European Community has developed a network of institutions and procedures that could well inform the development of legal structures for Latin American and Caribbean economic integration. • The United States has had much useful experience in improving the efficiency and productivity of courts through improved management, professional training and alternative means of dispute resolution. Most of the progress in my country can be attributed to the work of nongovernmental institutions, many of which have become significant actors only during the past 50 years. The experience of the National Center for State Courts, the American Judicature Society, the American

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Law Institute and the American Bar Association could help to accelerate the strengthening of such institutions in Latin America. • Perhaps the most directly relevant experience is that of successful reforms within Latin America and the Caribbean, the reforms of criminal procedure in Colombia, of civil procedure in Uruguay, the work of citizens' groups like Poder Ciudadano in Argentina and Participa in Chile, of national commissions to establish priorities and coordinate reforms as here in Costa Rica as well as in Honduras, the law harmonization of the Caribbean Law Institute and the University of the West Indies, the training programs of the Latin American Institute for Prevention of Crime and Treatment of Offenders (ILANUD). Sharing all this experience can help to accelerate the efforts of national reformers to make the administration of justice an effective instrument for achieving a more prosperous and democratic hemisphere. Some of that sharing is beginning to occur. Events like this conference provide opportunities to consider how that process can be better organized and expanded, and how limited resources can be applied in a more coordinated way to help achieve maximum results where demonstrated political will, popular expectations and progress toward increased technical competence offer the best prospects for success. What has been accomplished to date is no more than a prelude. Those of you who have been involved from the beginning know that we have learned a lot about what the problems are, how to analyze them, and what kinds of actions have been effective—and which have proven ineffective. Yet, the realization of a culture of the rule of law, and the institutional base to sustain that culture, remain a challenge for the future. My sense is that people throughout the Hemisphere are increasingly ready to respond to that challenge. It is encouraging that so many talented people in Latin America and the Caribbean, and in the broader international community, are engaged. It is particularly heartening to see the increased interaction among them. A VISION FOR THE FUTURE To conclude, I want to mention the transition in government that has just occurred in the United States. President Clinton has observed that "we face an unprecedented convergence of ideals" and that "together we can construct a genuine hemispheric community of democracies." His foreign policy in this Hemisphere will be based upon the three pillars of economic strength, security and the promotion of democracy and free markets. It will build upon the continuum of what has gone before—from the Alliance for Progress to the Enterprise for the Americas. I can assure you that the administration of justice will continue to receive attention under President Clinton and Secretary of State Christopher as an essential component of a hemispheric community of democracies. I see early in the next century a network of governmental and nongovernmental institutions throughout the Americas, working together to help all of us learn from each other how to strengthen further the rule of law and the administration of justice as a unifying theme in a new era of inter-American relations. I see those efforts

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contributing to the consolidation of a prosperous and democratic hemisphere whose people are joined ever closer by their common interests and shared values. This conference and your participation in it this week are significant steps toward that vision.

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The IDE and the Administration of Justice

Nestor-Humberto Martinez Neira Deputy General Counsel, Inter-American Development Bank

The many papers presented over the course of this Seminar have demonstrated an unequivocal consensus on the priority that should be given to the judicial sector in the process of modernization of the State and on the need for consolidation of the legal system in our countries, a consolidation that will permit a closer tie between legal precepts and the economic and social development of the region. The law-development equation comes into being at a moment in which most of the countries of the area have been adopting structural reforms of an institutional and economic nature in an effort to achieve ambitious growth rates sustainable over the long term and from which all sectors of the population can benefit. It is really within this context that one perceives the importance of the aspect of the State's obligation that takes the form of the creation of a normative system that adequately organizes community life, that facilitates rather than disturbs those interpersonal relations that tend to create wealth and development, and that offers wide and democratic access to the different institutional mechanisms of an efficient and convenient administration of justice. It is not necessary to reiterate the themes that have been widely debated during the prior two days of this Seminar. It is appropriate to highlight the role that international cooperation can have in the effort to bring to fruition some responses to the challenges expressed here. In particular, I have the honor to describe the role played in recent years in this field by the Inter-American Development Bankâ&#x20AC;&#x201D;the IDEâ&#x20AC;&#x201D;and to the institutional instruments that it currently has available for increasing its activities in development of the justice sector in Latin America and the Caribbean. LEGAL-INSTITUTIONAL FRAMEWORK The Bank's Charter, signed in 1959, delineates the legal limits of its operative capacity. According to the Charter (Article I, Section 2), one of the Bank's objectives is to contribute to acceleration of the process of economic and social development, both individual and collective, of the regional member countries in the process of

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development. For this reason, the IDE may use its resources for (i) promotion of public and private investment for development; (ii) financing for member countries with priority to loans and operations that contribute most effectively to their economic growth; (iii) promotion of private investments in projects and enterprises that contribute to economic development; (iv) assistance in the orientation of development policies of member countries toward a better utilization of their resources; and (v) provision of technical assistance for the preparation, financing and implementation of plans and projects, including the study of priorities and the formulation of specific project proposals. This reading of the objectives and functions of the Bank permits us to conclude that the Bank is authorized by its member countries to act in programs that support the judicial systems of the region, given that the strengthening of states of law and of their efficient performance constitutes a fundamental prerequisite to consolidation of an adequate institutional framework for economic development. Taking a broader view, we may say, in the words of President Iglesias in the inauguration of this forum, that "the efforts to modernize, reform and better focus the action of the Bank are considered in the region to be an essential requisite for the application of present development strategies and for the acceleration of economic development accompanied by greater social equity." It is thus that, though the IDE has traditionally been committed to financing investment projects, it has recentlyâ&#x20AC;&#x201D;particularly since the Seventh General Replenishment of Resources approved in 1989â&#x20AC;&#x201D;agreed to use up to 25 percent of its resources in multisectoral loans. These are loans to support institutional changes and policies on a sectoral or subsectoral scale, to improve the efficiency of that sector and to transfer to it the resources that make this possible. As to which sectors are eligible for financing, the Assembly of Governors has decided, in an interpretation of the Bank's proper scope of activities, that there are no a priori restrictions since "all sectors contribute to economic development." l It is due precisely to this interpretation that the Bank has recently taken more direct action in the area of law reform and the regional issue of justice. In addition to aid provided in the form of technical cooperation as it is traditionally conceived, the IDE has been including in its sectoral investment programs a component directed towards the reform of the administration of justice systems, with the clear understanding that the investment climate in a country improves when there exist efficient mechanisms for the protection of the rights of individuals, whether nationals or foreigners, and when citizens are provided with the means by which to avoid arbitrary or poor decisions rendered by the public administration. THE IDE EXPERIENCE The history of the IDE includes some experience in the field of judicial management itself. This does not lessen the relevance of the role that the Bank has begun to play in a wider context: that of the modernization of law and of some legal institutions. A

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systematic review of the Bank's work in this area indicates that it has included a few of what should, in our opinion, be many activities aimed at integral, ambitious reform in the field of law and justice, compatible with the contemporary economy and with changes perceived to be occurring in relationships in the life of the community. The Legislation The role of the norm is undeniably important in the dynamics of any society, and particularly important in civil law countries. When that norm is not sufficiently adaptable to the reality it ought to govern, it departs from the values that law ought to impart, or obstructs the facility with which social relations, whatever their nature, should be carried out: it ceases to be an element of social order and becomes a source of conflict. When this occurs, the particular seeks to overrule the general norm, and the State becomes a soldier in a useless battle for application of an inapplicable law. Thus contributions from many disciplines should be brought to bear on the formulation of the law, so as to create the basis for social equilibrium, to facilitate the movement of our economies into the world economy, and to avoid a reduction in the efficiency of regional productivity. It is precisely in the contribution to formulation of modern legislation that the work of the Inter-American Development Bank has been richest. Support for modernization of the legal order is a constant in Bank loan contracts and technical cooperation operations, which often finance studies by national specialists in the appropriate field for the revision of legislation in the sectors in which the Bank works. Innumerable examples can be cited in relation to legislation in the agricultural, environmental, educational, financial, securities markets, intellectual property, public enterprise and industrial property rights fields, among others. 2 Mention should also be made of the work done by the Bank through the Institute for Latin American Integration (INTAL) in the unification and integration of business law. The need for homogeneous rules among the different countries is especially great now that the conditions of international trade are leading to the globalization of markets, particularly in those matters that govern the exchange of goods and services or that uphold the international system of payments. This process has been enriched by INTAL's works, which include "Normativa Uniforme sobre Oferta Publica de Titulos Valores" of 1986 and the "Proyecto de Ley Uniforme de Titulos Valores para America Latina" published in 1967 under the coordination of Professor Cervantez Ahumada and an important regulatory source in many of our countries. Alternate Dispute Resolution Mechanisms Law attains development when it lends harmonious order to the expressions of the will of negotiating parties. It becomes fully effective when it discourages such relations from escalating into situations of conflict. 2

Some examples are as follows: Hondurasâ&#x20AC;&#x201D;Agricultural Sector Adjustment Program I (Loans 607/OC-HO and 847/SF-HO signed on December 7, 1992); Hybrid Program for the

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We recognize, then, that the law has a metalegal or metaprocessual scope. It is the task of the law, when presented with a controversy affecting the rights of the State or of private actors, to provide a formula for solution of the conflict within prevailing norms. A judicial verdict does not, however, constitute the only manifestation of a State's sovereign power of conflict resolution. The institutional order of a country can, and in fact does, admit alternatives for the resolution of controversies that occur in a society. These alternatives not only bring about a speedy, competent and technical resolution in accordance with the demands of the citizenry, but also contribute to decongestion of the courts. Conciliation and national and international arbitration are thus valuable instruments for the resolution of legal disputes, particularly those that involve complex financial and economic relations. For this reason, the Bank has been a great promotor of conciliation and arbitration within the region, processes that are regulated by legal instruments particular to the Inter-American system: the Panama Convention of 1975 and the Montevideo Convention of 1979, which deal with the validity of arbitration and the recognition and execution of foreign arbitration awards, respectively. The International Commercial Arbitration Seminar, which was organized jointly with the Superior Council of Official Chambers of Commerce, Industry and Navigation of Spain, took place in Madrid, Spain on December 1982. It was designed to increase understanding of the capacities of this Council and the ways in which the Ibero-American community could best benefit from it. As a result of this Seminar, there emerged an interest in the formation of arbitration centers that opened the way for the so-called institutional or administered arbitration. Several such centers have since been organized and currently operate with great success in Latin America under the auspices of the Inter-American Arbitration Commission, or IACA. This has also reactivated interest among those in the legal community of Central America with respect to commercial arbitration, leading to a similar academic event in the city of Guatemala in 1983, which served as a foundation for organization of the Central American Institute for Arbitration Law. In 1987, the Bank promoted the organization of the Second Seminar on International Commercial Arbitration. This took place in Guatemala and was intended to improve professional training for personnel who advise the public and private legal sectors in Latin America and create a technical understanding of arbitration. More recently, the IDB has carried out specific projects in alternative dispute resolution, through establishment of specialized entities for mediation, conciliation and arbitration. Paraguay's Sectoral Investment Program, for example, which involves a loan contract and technical cooperation agreement signed on December 1992,3 includes financing for a study of the regulatory framework for investment. This framework allows arbitration and conciliation for resolution of commercial conflicts

Energy Sector (Loans 644/OC-HO, 645/OC-HO and 868/OC-HO signed on January 7,1992); Panama-Public Sector Reform Program (Loans 688/OC-PN and 689/OC-PN, Non-Reimbursable Technical Cooperation No. 690/OC-PN and ATN/TF-4036-PN, signed on August 12, 1992); Nicaragua-Agricultural Sector Adjustment Program (Loan 724/OC-NI signed on December 15, 1992). 3 Loan 727/OC-PR and Reimbursable Technical Cooperation 728/OC-PR.

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and the establishment of a national arbitration center to encourage use of arbitration at the domestic level. Paraguay has several mechanisms for making such solutions binding at the international level, including treaties and its recent adherence to MIGA (Multilateral Investment Guaranty Agency) and to ICSID (International Center for the Settlement of Investment Disputes). Similar events have taken place in Uruguay, as is discussed later in this presentation. A review of the extent to which conciliation and arbitration are used in other latitudes, made possible by the intense work of institutions such as the International Commercial Chamber of Paris, the Inter-American Arbitration Association and the Court of London, leads us to conclude that we must work unceasingly in this field in Latin America. It will also be necessary to study and encourage other forms of dispute resolution that are beginning to be used in some countries with considerable success and which could be beneficial to the whole region. Use of justices of the peace, and the participation of administrative personnel from specialized state agencies in mediation and dispute resolutionâ&#x20AC;&#x201D;for example, bankruptcy proceedings in Colombia, the centers of conciliation of the National Banking Commission in Mexico for financial matters, or the intervention in insurance matters by the Securities and Insurance Superintendency of Chileâ&#x20AC;&#x201D;are particularly worthy of attention in this regard. Judicial Administration Another area requiring decisive and consistent work on the part of those responsible for the public justice system is that of the operative and functional modernization of the system. The management or administration of the human, administrative and financial resources of the justice system is often characterized by deficiencies that must be overcome in order for judicial activity to be successful. This is obviously a rich area for wide and useful international cooperation. While respecting the definition of those aspects of structure or procedure that are tied to state sovereignty, we believe that through consultancies, exchange of experience and pilot projects, it should be possible to undertake joint work for the reform of managerial systems and procedures used in the administration of justice. The objective must be the creative design of mechanisms that permit access to the benefits of computerization and economies of scale, and that assure judicial training and modern planning for the use of scarce resources. We must seek to avoid simplistic solutions that experience has made obsolete. The Bank has begun a project in Uruguay that will benefit the administration and efficiency of the legal system within the framework of a sectoral investment reform program. 4 This project, signed at the end of 1992, complements reforms introduced by Uruguay in 1989 to transform justice into an efficient and timely service. It may be said that this is the first systematic incursion of the IDE into administration of justice, from which we will gain lessons that are bound to be valuable to the Bank. 1

Technical Cooperation Agreement 704/OC-UR of 1992.

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The Uruguay project includes training for judges and court personnel in commercial law and mercantile practices, labor law and labor relations. Also included are an evaluation of bankruptcy legislation and the preparation of simplified and updated legislation in this area. As part of policy strategies to be promoted in this field, we foresee the contracting of consultancy services to help design a system to facilitate conflict resolution in commercial and labor cases, publication of information about new dispute resolution methods, and the evaluation of possible alternative mechanisms for financing the judicial system. Also contemplated is a pilot project that will create a record of the oral phases of the new civil process in the courts, which is based on testimonial evidence. Financing will be provided to five courts for development of a pilot project using multitrack tape recorders in the courts, thus eliminating the need for a written record. As a truly innovative element and on the initiative of the Supreme Court, research is included that will result in the preparation of a code of ethics for the legal profession. This code will include measures to address the behavior of those lawyers who may be contributing to a negative professional environment. Pedagogy for a New Legal Order All the activities to be undertaken as part of the worthy effort of strengthening the conditions in which justice can flourish are insufficient if they are not accompanied by a cultural change with respect to the perception of the necessity of the legal order and the function of law. This change demands, in the first place, that new generations be educated in a culture that respects the law and, in the second place, that institutional channels be established for publishing and studying the law and the principles behind the laws. For many years the IDE, together with universities and other organizations of legal professionals, has carried out nonreimbursable technical cooperation that aims at publication of the law and its study in the context of commercial reality and comparative law. This activity should be continued by the State with perseverance and consistency. FRAMEWORK FOR FUTURE PROJECTS The President of the Bank declared at the beginning of this seminar that the IDE "has decided to act in the field of law and justice." The Bank will do so in accordance with the mandates established by the Eighth Replenishment of Funds. The Eighth Replenishment of Funds The initial discussions of the eighth replenishment of funds for the IDE highlighted the importance of governability and the existence of a transparent and stable legal

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framework as essential conditions for economic growth. These discussions also emphasized efforts to create an investment climate that operates as a catalyst for development, for overcoming poverty, and for the incorporation of all social sectors into the productive process. The discussions pointed out that a common requisite to achieving these objectives is that of the existence of a rule of law, of a modern legal order and of the adequate administration of justice. These are necessary conditions both for the efficiency and stability of economic transactions, and for improving employment, income and the modus vivendi of the poorest groups of the population. These are important elements that underlie present development strategies in Latin America and the Caribbean. The IDE is incorporating these issues into its working agenda. The Bank can cooperate with its member countries in strengthening the legal apparatus and in modernization of laws, through the institutional channels of financial and technical support. Institutional Channels for the Support of Judicial Reform Projects can be financed through the institutional channels of loan operations, national and regional technical cooperation and, more recently, Multilateral Investment Fund operations. Loan Operations To meet the development needs of its member countries, the Bank operates both with its own resources and with resources provided under agreements with individual countries for the administration of financial resources. The purposes, terms and conditions dictating how these latter resources can be used are stipulated in the respective agreements. Operations financed with the Bank's own funds are divided into ordinary operations and special operations. The former are financed with the ordinary capital of the Bank and consist of reimbursable loans in the currency or currencies specified in the loan contract. Special operations are financed by the Fund for Special Operations, created under the Bank's Charter to make "loans on terms and conditions appropriate for dealing with circumstances arising in specific countries or with respect to specific projects."5 Technical Cooperation In accordance with Article VI, Section 1, of the Bank's Charter, and at the request of a member country or countries or private companies that are eligible to obtain loans from the institution, the IDE can facilitate assistance and technical advice within its field of activity, particularly for (a) the preparation, financing and execution of development plans and projects, including the study of priorities and the formulation 5

Art. IV of the IDE Charter.

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of loan proposals with respect to specific national or regional development projects; and (b) the development and advanced training, through seminars and other forms of instruction, of personnel specializing in the formulation and implementation of development plans and projects. In short, the objective of IDE technical cooperation is to contribute to the transfer of knowledge and experience relevant to the economic and social development efforts of its member countries. Subject to Bank policies, the financing terms and conditions for both loan and technical cooperation operations may take into account the socioeconomic conditions present in the region. The Multilateral Investment Fund One of the newest of the Bank's financing mechanisms is the Multilateral Investment Fund, the MIF, which may in the near future be an appropriate vehicle for transfer of resources to the legal sector. The idea for the creation of a Multilateral Investment Fund administered by the Inter-American Development Bank was born within the framework of the "Enterprise for the Americas Initiative." Its purpose is to finance activities that improve the investment climate for the private sector and increase the financial resources available to small and microenterprises in order to support the profound economic reforms put into place in the region over the last decade. The Fund was officially established on January 11,1993, upon its ratification by five of the 21 countries that agreed to its creation (United States, Honduras, Chile, Japan and Peru). The pledged contributions of these countries amounts to $ 1,006,000,000 of a total of $1,261,300,000 which constitutes the Fund. A country's eligibility for monies from the Fund is dependent upon the progress it has achieved in the enforcement of its economic reforms (Section 5). In large part, support from the Fund will be provided through nonreimbursable technical cooperation to finance technical assistance, education and other activities oriented toward accelerating reform and transformation in the productive sectors. There will also be an investment fund for revolving loans and capital investments to support the development of micro- and small enterprises. Resources of the Fund will be distributed in annual installments over a period of five years. The Fund will have three technical cooperation facilities aimed at: • the identification and support of political reforms necessary for the transformation of the economies of beneficiary countries; • human resources to mitigate social costs of economic restructuring programs, through training of displaced workers and strengthening of the productive capacity of the labor force, from workers to managers; and, • promotion of small enterprises to widen participation of low-income groups, women and minorities in the economies, through support of the development of enterprises and their increased access to the financial system. These facilities provide sufficient flexibility to design aid programs that can be adjusted to the necessities of each country. After consulting with governments of

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donor countries, the resources can be transferred from one facility to the other, as necessary. Section 2 of Article 3 of the MIF Charter states that resources will be provided from the Technical Cooperation Facility for technical assistance to finance, among other things: "(b) the development of national country plans for comprehensive reform of the policy and legal environment for investment, in conjunction with, and complementary to, Bank country programs; and (c) advisory services to implement plans mentioned in paragraph (b), which may involve advice on reforming investment laws, laws on intellectual property rights, commercial laws, tax systems, labor laws, laws to protect the environment, legal procedures, as well as advice on implementing those laws, and regulatory agencies." During negotiations of the text of the Charter of the Fund it was determined that the term "legal procedures" mentioned in the previous paragraph includes the financing of activities for the improvement of justice (or judicial procedures) in the countries of the region, within the spirit and objectives of the Charter. Thus both the spirit and letter of the constitutive document of the Fund lead us to conclude that it can be an important vehicle for the development of activities in this sector. SUMMARY AND CONCLUSIONS This summarizes the efforts of the IDB in the areas of modernization of law and justice and outlines the Bank's credit and financial facilities. From this point forward, the activities of the Bank in this field will be defined by conditions established by the Eighth Replenishment and the decisions of the Directors, and will depend on the interests of the member countries in receiving the cooperation that the IDB offers. This cooperation will be viable only if it comes at member countries' initiative and is carried out within a framework that zealously respects the sovereignty of states, the autonomy of the legal sector, the independence of judges and the development of projects sustainable over time. This forum will permit us to delve more deeply into the issue of justice in the region and illustrates the extent of our commitment to the future of that sector.

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REPORT AND CLOSING OF THE SEMINAR

PART VIII

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Ivan Lavados Montes Executive Director, Centra Interuniversitario de Desarrollo, Chile

Juan Enrique Vargas Viancos Director, Corporation de Promotion Universitaria, Chile

The following statements summarize what, in our opinion, are the most important contributions made during a highly successful seminar. These include not only ideas expressed by the moderators for each of the major themes around which the seminar was organized but also the topics raised in the many and varied papers received and, of course, the ideas developed in the course of subsequent discussions among the participants. However, this document is by no means intended to be an exhaustive review of the voluminous materials generated in the course of those days. Rather, it attempts to highlight the most compelling proposals put forward and the points of consensus reached during the seminar. Furthermore, the ideas expressed here are not necessarily presented in the same order as they were dealt with in the seminar, and we have refrained from directly quoting the participants. Although it goes without saying that our own thinking has influenced the way in which this paper is organized, we have done our best to remain faithful to the tone and spirit of the seminar. GENERAL THEMES Law, Justice and Development One clear conclusion emanating from the meetings is the need to go beyond a narrow, parochial view of the law and its role in development. It is a mistake to think of the law solely in terms of providing a framework for socioeconomic development, or to restrict the notion of justice to the mere settling of conflicts between contending private interests. In fact, both of these concepts form an integral and indispensable part of a broader conception of developmentâ&#x20AC;&#x201D;one in which we see development as something more complex than simply striving to reach quantitative goals in terms of economic indicators. Instead, we must link development directly to the achieve-

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ment of more complex objectives relating to the quality of life, the effective realization of the most pressing needs of our people, and the creation of genuine opportunities for individual advancement. Seen in this light, the law can contribute substantially to achieving those goals, primarily through the levelling effect it has within society. For its part, justice has its own role to play in this framework. Any failure to ensure justice for all will inevitably lead to the worst forms of insecurity and arbitrariness, both of which are diametrically opposed to what might be thought of as an enlightened society. Within this framework, not only do law and justice combine to produce a modern vision of social development, they also become fundamental elements of full democracy. This understanding of justice and the law is of no small significance. On the one hand, it provides the methodological perspective to adopt in approaching them; on the other hand, it heightens the chances of obtaining an increase in resources—always in short supply—by encouraging authorities to view justice and the law as part of the social sector in our countries. The Mission of the Judicial System In this context, it is necessary first to specify exactly what we can expect of the judiciary—to establish an initial standard against which particular systems can be evaluated. The divisions made between the various powers and functions of the judiciary are entirely arbitrary, and it must be borne in mind that they are in fact interrelated and mutually dependent on one another. Paramount is the court's role par excellence as ultimate arbiter of disputes brought before it by opposing parties. There are two consequences resulting from this function. On the one hand is the duty of the judiciary to provide broad access. This is the only way to ensure that all who become involved in such disputes can obtain a remedy via the courts. However, these days there is considerable support for the idea that not every dispute need go before a judge—that this is neither possible nor, in fact, desirable. Thus the access problem goes beyond the judicial system, encompassing both the formal judiciary (courts) and informal systems. Both of these answer to the State and, as such, are perfectly capable of working together (informal preliminary stages followed by automatic referral to the formal system.) Integrating the two systems in this way would enable the judiciary to provide comprehensive coverage, on par with that provided by other public services. On the other hand, the routine dayto-day activity of the courts, the processing of litigation, allows them to refine legal standard and to create new law. In this sense, the courts are fundamental to the establishment of what we may term the "rules of the game," or, in more technical terms, the rule of law. The judiciary must guarantee the legal force of fundamental laws established in their entirety by international instruments and the respective national constitution. Although conceptually preceding the most basic of the State's powers, this role has in fact arisen as a separate and independent function only after the Second World War. Unquestionably, the social legitimacy of the judicial branch depends upon its success in carrying out this function.

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Closely related to the above is the judicial system's role in overseeing the other branches of government, a task derived primarily from the doctrine of separation of powers. As such, it encompasses the exercise of those functions and attributes of the other branches that come within its purview. Independence and Relations with Other Branches of Government Strong assertions were made to the effect that in order to fulfill its mission, it is essential that the judiciary maintain a degree of independence and autonomy from the other branches of government. At the same time, it must not allow itself to become isolated. This is true because the theory of democracy rests in part upon the existence of checks and balances between the judiciary and the other branches. These reciprocal controls are in fact one of the most efficient defenses against arbitrariness. By the same token, allowing the other branches of government a voice in the judicial system is simply quid pro quo for the influence that the courts enjoy over the affairs of these branches. At the same time, it also lends democratic legitimacy to the actions of the judiciary by allowing democratically elected representatives to intervene in decisions within its domain, such as in the designation of magistrates. This calls into question the widespread strategy aimed at increasing the influence and effective power of the judiciaryâ&#x20AC;&#x201D;which is very limited in the majority of our countries todayâ&#x20AC;&#x201D;by formal and absolute insistence on the separation of powers, quite apart from the democratic usefulness that makes this so valuable. In reality, the surest method of achieving this objective is to enhance both the capacity of the judicial system to generate methods of improving service and the social legitimacy that naturally derives from the proper exercise of its vital function. To this must be added the historical fact that power within the State is not apportioned automatically; rather, it must be earned. Clearly, this represents a challenge to those who are interested in the development of the system of justice. We should also note here the comments made to the effect that the problem of an independent judiciary is not necessarily limited to what might be termed the system's external relations. There is a significant internal component as well. Judicial power is personified in each of the judges who decides case, and clearly these magistrates are not independent if in reaching their decisions they are not free to weigh only matters bearing on the situation at hand but must also take into account pressures relating to their status within the system. Modernization and Cultural Change The concept of modernization is related to the changes that the judiciary must undergo in order to respond to the requirements of social and economic development and to keep up with a way of life every sphere of which has been evolving at ever-increasing speed in recent years. To do so, it is not enough to incorporate new technology. Of even greater importance is the need for far-reaching changes in the role of the

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magistrate—or, better still perhaps—in the ethos of modern jurists themselves and the related officials who assist them. This, combined with the growing complexity of legal issues, underscores the vital need to broaden our focus, transcending what is narrowly considered judicial and integrating ideas of proven utility developed by other disciplines. MODERNIZATION OF JUDICIAL ACTIVITIES Any attempt to characterize judicial systems must begin by distinguishing between two very different tasks carried out by the courts: one involves the judicial function per se and embraces all those activities that are proper to and characteristic of the courts; the other is administrative and includes all those elements that enable the court to engage in these activities and consists of the organization and structure of the legal profession and so-called court administration. This distinction has important methodological and practical ramifications when selecting a strategy for reforming the sector. The first (judicial function) aspect goes to the heart and substance of the courts, while the second (administrative) component is necessarily secondary to and intended for the service of the first. Losing sight of this and limiting changes to administrative details may lead only to a waste of both effort and resources and result in the ultimate dissatisfaction of those served. Judicial Functions There is a pressing need to delve more deeply into judicial activities—what judges actually do—by means of both doctrinal and practical studies (the latter being few and far between in our discipline). This is vital if we bear in mind that substantive change is what is called for here, and that the judicial sector cannot be improved simply by carrying on as before, or by moving more quickly. For this path may lead to nothing more than faster processing of cases and thus to a greater number of injustices. In this regard, efforts throughout the continent have—in a curiously uniform manner—concentrated on procedural reforms aimed at introducing oral proceedings open to public scrutiny. It should be noted that this change refers not just to the form in which the business of the trial is conducted; nor is it intended solely to speed up such proceedings. It is in fact a more profound issue directly related to the fundamental principles upon which judicial activity and the corresponding procedures should be constructed. This is a matter dealing with requirements such as the existence of a preliminary tribunal capable of determining cases. That is to say, the need for a single judge who can rule on an issue, and in whom there can be vested all of the essential powers needed to obtain direct access to all records and—of fundamental importance—all matter offered in evidence. This would go a long way toward eliminating one of the most widespread abuses in our judicial systems: the delegation of responsibilities. The only known method of accomplishing this is by means of oral proceedings. However, this implies a need for effective reinforcement of the right to defend oneself, a right

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Administrative Component We would like to indicate a few of the more important elements highlighted as fundamental to the success of the courts' mission during the Seminar. Career Path This includes the criteria and systems used in selecting staff, as well as supervision of activities and mechanisms for advancement. There is a need to develop a consistent, objective and transparent system for entering the profession and moving up the career ladder. With regard to advancement, the aim should be to base promotions on professional merit, rather than solely on seniority. Above all, the democratic ideal that all appointments to public office be made with the best interests of all citizens in mind must prevail. An interesting phenomenon in this respect is the existence in both Latin America and Europe of institutions that are commonly known as National Councils of Justice (Consejos Nacionales de la Justicia). Because of their broad membership including both elected officials and judges at various levels of the judiciary, these bodies are in the best position to make the necessary career path decisions, thus freeing the highest courts from having to devote valuable time to this administrative task. In this and other ways, the National Councils of Justice can have a direct effect on judicial administration. Financial Resources It is necessary to bear in mind various facets of the problem of funding. It is not simply a matter of seeking an increase in the sector's resources, despite the fact that these are, in general, extremely limited. In this vein, it is essential that the greatest care be taken in preparing budgets, taking full advantage of the technical advances needed to maximize accuracy. At the same time, creative efforts are needed to diversify sources of income, to the extent that the respective domestic legislation permits. Special attention must be paid to rationalizing expenditures. As pointed out earlier, there is a widespread impression that, in general, our judiciaries lack sufficient funding. Yet, at the same time, participants also felt that there were no policies, mechanisms or procedures for making efficient use of the funding that does exist. The combination of sound financial management, wiser use of available resources, and the ability to generate attractive development proposals that will result in a clear improvement of the sector's services will significantly help to increase the resources available to the sector. It should be kept in mind that just as in other types of government activity, there is growing demand on the part of the general populace for tighter control of, and greater say in, the allocation of resources raised through taxes. Finally, and in light of the above, the costs and benefits of those judicial systems

enjoyed by all persons under all circumstances. Once again, the only way to make this a reality is by allowing public scrutiny of trial proceedings.

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Organization and Methods All courts must question procedures whose only justification is "it's always been done this way." These procedures should give way to rational systems of organization incorporating existing methods that enjoy wide acceptance in other areas of public administration in our countries. The first step in this direction is to obtain reliable statistical data enabling officials to evaluate the sector and its problems. Based on this information, they can then prepare efficient administrative procedures, computerized support systems and—of crucial importance—modern and transparent personnel systems. ACCESS AND ALTERNATIVE CONFLICT-RESOLUTION METHODS The limited studies that have been conducted in this field show that, in general, the poorest segments of the population do not have access to the existing (formal) court system. This necessitates a search for alternative methods for resolving conflicts, systems of arbitration, conciliation and mediation. Recourse to these methods will make it possible to address the problems of overcrowded courts and limited free legal aid services. Strategies of this type also make it possible to better target spending within the judicial sector in order to avoid what usually happens when new tribunals are created: the more powerful sectors of society taking advantage of the new tribunals in such a way that their creation comes to represent a regressive form of social spending. In short, these mechanisms are of proven effectiveness in the mounting of an efficient and economical attack on the problem of providing legal services for those excluded from the formal judicial system. They do this by both reinforcing the legitimacy of the law and enabling the courts to concentrate on those problems that only they can handle. The new forms of economic integration and globalization in Latin America, to which we will refer below, have created the need for faster and more modern dispute settlement methods, which in turn gives rise to greater use of private forms of negotiation such as international arbitration. Development and specialization in these systems—aimed primarily at increasing their effectiveness—will be of vital importance in attempting to attract new investment to the region. TRAINING OF JUDGES Legal systems around the world operate on three fundamental levels: the axiological, doctrinal and effective levels. The axiological level involves the fundamental values that must be present in any juridical system. The concepts of liberty and justice are the fundamental principles upon which these values rest. At the same time, there are elements that remain to be

with constitutionally protected minimum funding guarantees must be examined in detail, and compared with those subject to budget negotiation.

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incorporated at this level, including human rights concepts currently endorsed by the international community. The doctrinal level refers to the substantive content and explicit norms laid down in existing jurisprudence. Lastly, the effective level relates to the capacity of the law to influence social behavior, especially with regard to the prevention and settlement of disputes. All three levels must be taken into account in structuring the pertinent curricula used in the education and training of officers of the law. Thus, for example, subjects such as philosophy and—more specifically—ethics are essential to ensure coverage of the axiological level, while economics and sociology must be included for purposes of the effective level. In our countries, both in undergraduate law programs and in the training of court officials, the focus has been almost exclusively on the doctrinal level. This has been the result of—and, at the same time, has provided strong reinforcement for—the formalist approach to law. In the undergraduate training of lawyers, a clear distinction must be made between the basic core curriculum and specialized coursework. The former is essential in that it enables authorities to integrate all three levels referred to above, and because it makes possible the achievement of the fundamental objective of university studies: namely, to provide a solid grounding in general knowledge that will permit the individual to adapt easily to the various tasks that await. In other words, it is a matter of learning how to learn. Clearly, specialized coursework must be designed to provide the extra knowledge and skills that will prepare future professionals to carry out the social duties they will be called upon to perform. In this connection, it is important to remember that less than 60 percent of graduating lawyers will eventually be entrusted with judicial functions. In the Seminar, the topic of training for judges centered primarily around Judicial Training School (Escuelas Judiciales). There was a consensus that Judicial Training Schools should have a flexible system that integrates judicial education and training capacity that already exists in the various countries. This system should include a central core of personnel responsible for overall direction and definition of policy, teaching methods and course contents and for providing permanent coordination of the work done by part-time staff. It was emphasized as well that the schools have a role to play both in providing formation and training for entering professionals and in offering continuing education for serving members of the judiciary. In this regard, much stress was laid on the need to ensure that the work of Judicial Training Schools should contribute to greater transparency and objectivity in the appointment and promotion of court officials. It was also clear that the schools, as a system of training and upgrading of judicial skills, cannot be expected to resolve or remedy problems inherent in undergraduate programs in law. Judicial Training Schools will begin with individuals who have undergone basic training in the undergraduate disciplines and who already possess the required minimum knowledge of judicial systems. Experience shows that the preferred area of concentration for the School's curriculum should be on the skills and abilities peculiar to the judicial function. It is thus a matter of focussing on practical problem solving, bringing in background theory

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INTERNATIONALIZATION OF THE LAW AND THE NEW CHALLENGES FOR JUSTICE During the Seminar, special attention was given to the process of internationalization that is taking place within the law, and the requirements that this process is engendering for systems of justice. The Seminar brought out the fact that the growing internationalization of law is the result of two interrelated variables. On the one hand, there is the development of a general world culture that is taking place today. This process, together with the growing globalization of individual economies, is strongly and directly influencing development strategy in our countries. These processesâ&#x20AC;&#x201D;especially those in the economic sectorâ&#x20AC;&#x201D;have brought new actors onto the stage, and are giving rise to new types of business at the national, international and transnational levels. All of these are generating new, varied and complex problems for the law and the justice system. And on the other hand, the process of internationalization of the law is related to the evolution of the international judicial system itself. The direct causes for these changes cited during the Seminar include: the impact of International Law on domestic legal systems; the regional integration processes now underway; the international protection of human rights; and the efforts being made to harmonize national legislation. One of the central themes to come out of the Seminar is the rapid and dynamic changes that are taking place in the field of law and justice with respect to the separation between national and international jurisdictions. One must always be cognizant of the fact that the existing boundary is constantly being shifted to accommodate advances in international legislation, with the resultant natural expansion of the areas over which international law holds sway. The new challenges that this internationalization of the law presents can be met by developing new tools for use at the national and international levels. In the Seminar, it was pointed out that at the national level there is need for generating conditions that will ensure a smooth transition to a global economy and a more international approach to law, consistent with each nation's conditions and strategies. In this sense, emphasis was placed on the law as a stabilizing influence, and its functions in promoting social integration and the consolidation of democracy. From the international point of view, it was pointed out that these new requirements and challenges can be met by developing new instruments such as regional tribunals and subregional integration organizations. Other suggestions included methods of international arbitration and the study of innovative solutions such as meetings of judges to seek consensus on pretrial criteria.

where necessary and employing methods borrowed from adult education programs, all of which should be directed at assuring continuous participation by the student.

Elizabeth Odio Benito Minister of Justice of Costa Rica

The Inter-American Development Bank, as sponsor of this important Seminar, has graciously called on me to attempt to summarize some of the ideas that have come out of the valuable discussions of the last few days. Seminars like this one usually end with a report presented by a person acting as rapporteur. Owing to technical problems, which at times befall us, we have not been able to put together a single document and will have to adopt a different approach. As part of this alternative approach, I have been sifting through the very rich outpouring of ideas over the last few days to glean some of the key points that I can share with you by way of a final summing up. First, however, I should like to tell you how the idea of this Seminar came about. I feel that it is very important that you should know. One day, in my capacity as Minister of Justice, I was visited by an IDB mission headed by Dr. Sara Ordonez (known to her friends as Sarita). Sarita was very concerned because the administrative procedures embodied in our public law were hampering approval of loans to the Government of Costa Rica, loans that were badly needed. This was the first occasion on which Sarita and I had had to talk, and, after having identified the problem, we took the opportunity to exchange ideas about the need for legal regulations that do not hamper the development of our countries but rather facilitate it. We spoke about the need for bureaucracy, both local and international—we have both varieties—to understand what its true function was. Sarita said to me, "What if we were to suggest to the Bank that it assemble those venerable gentlemen who look after justice on our continent, the judges, chief justices and attorneys-general.. .would you help me put the idea to Enrique Iglesias?" To this I replied, "Of course I will." Thus, we two daring women won over a very daring President, who trusted in us and in this idea. Let us meet to talk about law and not economics; let us get together to explain why at times we impede development, yet why we are so necessary to development; why we cannot in fact visualize an institutional future if we, the jurists, are not there. This important gathering that we have participated in over the last two and a half days is the result of the efforts of the IDB and the Government of Costa Rica, and of the ideas thought up by Sarita Ordonez, Enrique Iglesias and myself. Thank you very much for being here. In my capacity as rapporteur of this Seminar, now drawing to a close, I think it is fitting not only to offer an overall summary of the different papers that have been

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so brilliantly presented and discussed this week, but also to comment on aspects that, in one way or another, are of paramount interest for the development of justice within our countries. As the President of the IDE very aptly remarked in his inaugural address, the world in general and Latin America and the Caribbean in particular are currently immersed in a fast-paced process of change that is moving not only toward new forms of trade among the countries, but also toward a redefinition of the priorities and needs that each government must address for its citizens. With this century drawing to a close, economic and political interdependence has become a phenomenon that we all must confront with courage and imagination. We took up Law, Justice and Development as the first of the topics to be analyzed. In this context we also reviewed the concept of government and the fate that has befallen the interventionist state. I would say that every one of the papers and presentations we have heard at the Seminar this week contains material that would warrant its own seminar. It is a truly impossible task to try to summarize them all. I believe that on our return to our respective countries we should reflect calmly on all the topics covered in these presentations and on the comments that followed them. Allow me, however, to venture to make a few personal reflections on these topics of Law, Justice, Development. We believe that we cannot speak in terms of adequate development of our societies unless we have a body of legal rules and principles that reflects the true character of civil society and offers fair, prompt and effective solutions to every kind of dispute that arises within the society. We think that attainment of desirable development for our peoples should be accompanied by a legal structure that allows that arm of government responsible for enforcing and interpreting the rules to perform its assigned function with full independence and effectiveness, so that all members of the social fabric, both individual and collective, find their interests met adequately and without delay. As was eloquently pointed out by several panelists, there is a clear interrelationship between development, legal order and justice. Justice is part and parcel of social development, which in turn calls for the efficient administration of justice. Considered in broad terms, development is linked to the defense of human rights, to the dignity of mankind, and to the need to appreciate the social and institutional reality on which the economic and social growth that we call development is predicated. The fact that, as Enrique Iglesias very aptly stated, development does not occur in an institutional vacuum, poses, at the outset, a legal issue: the national character of any development program. This is a process that must necessarily take account of the internationalization of contemporary relations, but that must be guided and planned by each country's own political and economic agents. There can be no one model, predefined and standard for every kind of country, because the characteristics of each society, of each government, its legislative rules, and its social and economic reality, should be considered. The effectiveness of the development program carried out will depend very much on such considerations. It would be very simple, in fact, if there were universal prescriptions we could follow to solve our problems, but there are none. What we do have is the opportunity to draw on international experience and international assistance; but it is we who are the actual agents and protagonists in this process of development, it is we who have to carry out the task.

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Our discussions focused on the need to move beyond the purely economicsdriven concept of development, a concept that will endure as long as we fail to ascribe due importance to the diverse social dynamics being brought about by the current movements toward internationalization and economic liberalization. Growth cannot be understood solely as the report of such macroeconomic indices as inflation control, export growth, and balance of payments equilibrium, to name a few. If we restrict ourselves to this terrain, we might well have a society that is economically stabilized but socially destabilized. This is why privatization of the law, which has been posited as one of the consequences of globalization and of reform of the role of government, cannot be allowed to lead to disregard for the social conflicts prevailing at any given time, or to denial of the fundamental rights of only part of the population, however subjective or diffuse they may be. In light of this new conception of development, let us also examine the essential link between social aspects and development programs. Let us take a moment to ask ourselves what modernization of the productive apparatus or enhancing external competitiveness can really mean to the "man in the street" or, especially, to the marginal sectors, those groups of human beings often referred to as "minorities" (among whom we women must be the majority of the minority). What do these changes mean if the introduction of new technologies is perceived as threatening, or if it is not likely to promote improved living standards but may instead lead to a real deterioration in their environment? How much confidence can these men or women in the street have in the legal system if they do not feel that government and society are protecting their rights but are, on the contrary, trampling them underfoot? In such a situation, not only is development with justice not being achieved, but neither is development with legal security. To attain legal security, treatment under the law may need to be differentiated, using discrimination to achieve equality. Let us remember, as we said in the context of human rights, that discriminating means treating differently what is equal but also treating equally what is different, hence the statement that the law must respond to social conflicts with nondiscriminatory rules must be nuanced; otherwise we run the risk of intensifying socioeconomic imbalances. Paradoxically, from the legal standpoint, we would encourage international rapprochement through integration of the law by such processes as regional integration, international regulation of foreign trade, transfer of technologies, and transfers of capital, yet inside our own societies the delinking of law and society would become still more pronounced, with basic human rights left increasingly unprotected. Any development program undertaken should therefore lean toward greater integration within society as a prerequisite for successful operation of the economic model it is supposed to apply. I believe that integration should also be social in characterâ&#x20AC;&#x201D;a means of empowering individuals to take decisions and exercise their individual freedom with responsibility and social solidarityâ&#x20AC;&#x201D;and not simply an incorporation into the productive process. Even where there is no lucid social or political awareness, this social integration becomes an imperative in that productive capital calls for social stabilization and the legitimation of government. This lends a degree of importance to the role that the IDE has proposed for us as legal operators in a genuine social reform of our countries. The discussions we have had on law, justice and development, and on law,

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democracy and development are, in a way, the same ones we find when we speak of government, market and individual freedom. These three planes—government, market and individual freedom—are the three diagonals that define a new ethical and ideological concept of human organization now being postulated. Each of these three diagonals is being redefined and repositioned. We speak today of efficient government, with a lean bureaucracy capable of meeting expectations for public services. But in order for the whole package to make sense, it is absolutely essential, as part of this reconceptualizing, to redefine without delay the role of the Judiciary or the role of the administration of justice, as some call it, with a view to giving legal agents a broader sphere to work in. Accordingly, in drawing up the agenda for our seminar, we placed the Judiciary front and center. And for the same reason we devoted a very large part of our discussions to it. My friends and colleagues in Costa Rica have heard me say often, and in very different fora, that in democracies like ours—and in democracy in general, when viewed as a theoretical concept, the Executive and the Legislative branches can continue though they are weakened, they can endure in more or less inept hands, and can even survive corruption. But if there is one branch that cannot be left to either incompetent or corrupt hands, it is the Judiciary. For should this occur, democracy will fall, as the institutions themselves crumble, which of course means in turn that development becomes impossible, since there can be no development in an environment of institutional convulsion. For those in the legal profession, the fundamental issue raised by the new economic and social phenomena is how to determine what the ultimate goal of the legal order—and hence of the administration of justice—should be. We believe this goal to be to promote more humane justice based on respect for the dignity of individuals and for their basic social and economic rights. The law is not only an engine for transforming government machinery and driving economic development, but is also a frame of reference for justice, for realizing mankind's fundamental values, and an instrument for a society that is showing increasing solidarity in this respect. We accept that the administration of justice must get away from its formalism in order to become immersed in the social reality that the law is supposed to interpret. This is a point that we debated at length and on which we should reflect because it is not an argument for a judge to set himself above the law. The rule of law should enable the judge to discern the values that the law seeks to advance, so that he can offer society fair settlement of its conflicts. The importance of judicial reform does not derive merely from the function performed by the legal process in ensuring the effective application of substantive law; its importance deriving essentially from the fact that the legal system's authority serves to legitimize the political system, as we said earlier. As is well known, distrust of the legal system undermines the fabric of democracy and, as has been stated in masterly fashion by the panelists, acts as a destabilizing element by threatening a country's institutions. This calls for recognition of the fact that, quite apart from the intrinsic political and legal character of the role of judicial interpretation, the Judiciary is a political actor, a political actor to be reckoned with by the other branches and by civil society alike. This, in turn, implies changing the way the Judiciary sees itself as well as the way it is viewed by other political actors and different social groups.

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Yet how can we speak of the Judiciary's political role when there is evident in society a decline in the importance assigned to the administration of justice? Our friend Perez Perdomo hit the nail on the head yesterday when he said, "As a taxpayer, I'm not interested in being taxed more heavily so the Judiciary can get more money." The Judiciary—and this goes for the judiciaries in all our countries—must seriously rethink its entire relationship with the political facet of its function. Handing down a judgment is an act of government by "the cops," not mere formalism; it is not simply an administrative procedure. It is essential that judges keep this in mind at all times. Lack of prestige is attributed basically to the way in which the service of justice is rendered, to the impossibility of real access to justice, or to how strange and incomprehensible the judicial system appears to the average citizen. This is something to be borne in mind not only by judicial officials but also by all of us involved in the justice sector. It is clear then—and it came out clearly in our discussions—that any decision taken to reform government should ultimately strengthen the Judiciary. This institutional strengthening must go beyond guarantees and include a modernization of judicial management. The Judiciary's political function also obliges it to be efficient and, to this end, it should overhaul its operating procedures with the aid of new management methods and technologies. Its everyday procedures, not only in administrative matters but also in terms of its judicial work proper, should be governed by planning and programming, both of which are essential tools if financial and human resources are to be put to good use. Moreover, since the Judiciary cannot isolate itself as far as its structure and operation are concerned, there will be administrative aspects that it will have to coordinate with the other branches of government so as to allow for society's needs and possibilities. But perhaps the greatest difficulty to be confronted by the reform process is how to adapt the kind of justice found in an interventionist state—as ours have historically been—to one in keeping with a state in which individuals have greater freedom. In this vein, we examined several topics related to the effort to ensure that the Judiciary is truly independent in its operations: the separation between administrative and judicial tasks and the training of judges. It was pointed out that such training should include ethical, methodological and technical components. Law schools were mentioned as a very important vehicle for training, with some debate as to where they should be located. However, in my view the location of law schools is not the number one issue, but rather the need for these law schools to exist. Also mentioned as factors related to the ability to adequately respond to the need to resolve disputes were the establishment of careers in law, security of tenure for judges, and their compensation. Another issue raised during our reflections on the administration of justice was its role vis-a-vis the ongoing processes of globalization, a process that embraces various aspects of social life, and is the result of the growing interaction among societies and economies. Globalization brings with it the need to adapt an administration of justice suited to an interventionist state to that form of justice that exists within a framework of deregulation and broad affirmation of freedom. Apart from the transformation of

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government that this entails, the reform at issue includes the relationship between Public Law and Private Law, the search for mechanisms to resolve social disputes and, ultimately, the problem of access to justice for low-income groups. Deregulation and a reduced role of government call for a redefinition of the relationship between Public and Private Law. This involves a transition from a legal regime in which social relations were predominantly public in character to one in which law has a more private character. This process of privatization encompasses two fundamental tendencies: on the one hand, the contractualization of economic relations and, on the other, resort to out-of-court mechanisms for resolving disputes. The role of justice in light of the internationalization of the law was one of the most interesting and indispensable topics in the conceptual framework we used in preparing for this Seminar. This so-called internationalization of the law is a judicial response to economic evolution and to the technological changes that societies have undergone of late. These changes necessitate a new way of adapting states' domestic legal orders to the new international legal order to ensure that justice realizes its full potential. This is true of both public and private law, and in terms of both the substantive and procedural aspects. Internationalization is not a random phenomenon. Economic globalization has demonstrated that our domestic legal orders cannot equitably resolve the disputes that they themselves generate so long as they do not routinely incorporate principles of public and private international law. In this connection, this Seminar has brought home the need for the internationalization of the law to include both the concept of ordinary judges applying international rules and the assignment of supranational areas of jurisdictional competence to international organizations. From practical solutions that can be applied at once—such as the proposal that judges of different jurisdictions should be the ones who define jurisdictional spheres, through a series of joint discussions—to the need to vest new powers in officials within the judicial system, it has become evident that disputes of an international nature, both public and private, call for a redefinition of the role of international law in the region. This redefinition is necessary in order to give force to judicial decisions. An important step in this process is that domestic law should embody treaties and conventions needed to assure a common framework of rights and respect for individual and social liberties. This quest to incorporate international rules calls for a clear definition of state political bodies. It is also necessary to reformulate the concept of sovereignty. The movement toward internationalization requires a concept to supersede the outdated doctrinal framework. This new concept must assure that national governments agree to the establishment and enforcement of a basic body of common rules that acknowledges the status of each state's legal order. In this same context, we discussed alternative dispute resolution mechanisms. If the essential function of the legal system is to settle any dispute that arises, there is an urgent need—within the formal framework of the Judiciary, but also as part of the administration of justice in general—for us to seek alternative forms of dispute resolutions, such as mediation, conciliation, and arbitration. In this respect, we must make headway in our region in finding the solutions that globalization compels, in both the national and the international sphere. To this end, experience with administrative

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tribunals like those already in place in several agencies, including the IDE itself, offers an avenue well worth exploring. Allow me, in closing, to make a final comment. In order for legal systems to fulfill their essential function of serving justice and development within the new concept of the state, they must operate in both the national and international spheres. There is within our domestic spheres of government a mechanism that is in my view the most important instrument at our disposal as we seek to modernize and update our legal systems. I refer to our constitutional law. I believe it to be an indispensable vehicle, indeed the indispensable vehicle, for providing the necessary link between national and international aspects of the administration of justice and our legal systems, and I submit that, even without formal legal reform, our societies can push ahead with their efforts to modernize through the mechanism of constitutional law. The innovative role of constitutional law is a topic I feel we should explore at other seminars like this one. For a specialized body of law capable of harmoniously and effectively applying the constitutions of states is embodied in our basic charters, which enshrine the fundamental values that underlie any endeavor by a society to achieve truly just governance. This is why we attach so much importance to the role of the judges responsible for applying and interpreting constitutional law, a task that calls for great sensitivity, composure, balance, and professional ability. Their rulings are bound to have a decisive influence on the evolving shape of the body of rules that development requires, as they adapt them to the rapid changes our societies are now witnessing. This dynamism in constitutional interpretation is conducive to appropriate interaction between civil society and the basic organs of government in a way that precludes any possibility of the kind of violent upheaval that has occurred in Latin America and the Caribbean at other times in their history. This is why I attach paramount importance to the roles of constitutional law and constitutional judges in the processes we are analyzing. In Costa Rica, whose experience I know best, as part of our structural adjustment programs, we underwent structural reform on a scale we had never dreamed of when we moved from a legalist regime to a constitutionalist regime. This was a country of laws; this was a country where in order to do anything we needed a permit, a legal authorization. I am not referring to the public sphere, where obviously the legalist principle remains indisputable. I am talking about the private sphere, where we used to need some legal rule to sanction virtually any activity, however minor. The advent of constitutional law altered this focus: it changed it through a revolution that has touched all of us. A revolution that, like all revolutions, has its good points and its bad points. We must therefore reflect with great composure on the importance of constitutional law and on the role that constitutional judges play in these processes. Whenever a law is declared unconstitutional in this country, a hole is made in the legal fabric, and that hole is not always easy to close. Constitutional law can serve as a very important lever, a crucial tool, when it comes to redrawing the boundaries of individual freedom in a market economy, under a new concept of the state. In our country, during these nearly forty months of constitutional law, individual rightsâ&#x20AC;&#x201D;individual freedomâ&#x20AC;&#x201D;have been thrust to the forefront of society's consciousness. I believe that the best chance for justice to

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succeed—social justice, that is—lies in finding the right balance between the interests of the individual and those of society. Hence the need to consider this issue with care. Today we have heard, in three dazzling presentations by the World Bank, the Inter-American Development Bank and the Agency for International Development, that our societies have partners who are prepared to help us carry through with the modernization processes that our societies require. It has been very gratifying to learn from Dr. Shihata, Ambassador Michel, and Dr. Martinez of the IDE that there is an open door at each of these three agencies where we can go for any outside assistance we may need in our modernization efforts. Let us remember that unless we modernize the judicial apparatus we will not be able to implement economic policies fully or truly achieve our goal of creating just societies. In the year just ended, 1992, we celebrated the quincentenary of our first visit by Europeans. They brought us their language, their religion, and their laws. Ever since, we in Latin America have been searching for a language of our own—a legal order of our own—using their superb legacy of a vocabulary that allows almost all of us to understand each other. Latin America and the Caribbean constitute a region in which intermarriage has produced very particular societies. They have called us the "Continent of Hope;" they have called us the "Continent of One Hundred Years of Solitude;" they have called us many things, but I believe—and this seminar now ending proves it to me once again—that we are capable of finding our way, that we are capable of finding the instruments, that we are capable of seeing our problems, that we are capable of identifying our shortcomings but that we are also capable, precisely as I said at the beginning, of seeking solutions with courage and imagination. This continent of racial blends must show the world that we are, in reality, the continent of the future. I should like to thank Enrique Iglesias and, through him, all our friends at the IDE for the opportunity they have given the Government of Costa Rica to have all of you here. I am sorry to see you leave, but I know we shall continue to meet. You have opened the door to us, and we must take advantage of it. To all of you who made it possible, my deepest thanks.

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Enrique V. Iglesias President of the Inter-American Development Bank

It is my task to offer some final words to close this meeting. I must begin by thanking all of you for your presence here, and I especially wish to thank the keynote speakers who established the parameters for the discussions. I likewise wish to acknowledge the presence of companion agencies such as the World Bank and AID and organizations such as ILANUD and the Inter-American Human Rights Institute. Finally, I would like to highlight the richness of the debates that have taken place here. The Minister of Justice of Costa Rica has just presented a detailed overview of this meeting, and there is little to add to what she has said. I consider it important, in the first place, that this seminar has taken place. Also important, in the second place, are the depth and relevance of the analyses and conclusions presented here. THE INSTITUTIONAL FRAMEWORK OF DEVELOPMENT As I said in opening the seminar, the development process does not take place in an institutional vacuum, as economists often assumed in recent times. It is not simply the result of market operations or of the application of correct policies. The development process is the outcome of the actionâ&#x20AC;&#x201D;and interactionâ&#x20AC;&#x201D;of multiple social and economic agents. The conduct of these agents is always controlled, but is either cramped or allowed to flourish by the institutional framework in which they operate. This framework is therefore a determining factor in the direction and outcome of the development process. Since the beginning of the last century, classical economists like Adam Smith have emphasized the institutional aspects of economic growth. In recent decades, economists have tended to forget those aspects. The enormous changes that the world has recently undergone, especially since the 1980s, have altered social values, the structure of production, business organization and individual behavior, forcefully pointing to the need to build new institutions to channel new realities. I do not hesitate to state that this problem has become the main challenge for many industrialized nations, as it clearly is in the countries of Eastern Europe that must develop completely different institutions to accede to democracy and the market. The same thing is happening in Latin America. Soon after returning to the twin paths of democracy and growth, which had been so imperiled in the recent past, the

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countries of the region realized that the continuity of both processes required bold modernization by the State. In view of the interrelationships of the various elements that make up the State, its modernization could not be undertaken by any one sector alone, but required a comprehensive approach. This approach should include the public sector—that part of the economy controlled by the State—as well as the process of government and the operation of public powers, and the realignment of relations between the State and the various sectors of civil society. Modernization of the law is inherent in reform of the State. Both aspects are essential for development and are part of it. In this respect, the field of justice is of key importance. THE MODERNIZATION OF LAW AND JUSTICE Within the framework of this seminar, it has been important to achieve clear consensus on the need to rebuild the legal order based on rules that permit efficient social development and reestablish the principle of good faith, with the understanding that they must facilitate and make viable the development of our economies. This is the concept of law shared by the ordinary citizen, the entrepreneur, the academic, and the political leadership of Latin America. Consequently, this community aspiration can be postponed no longer. Unless legal rules are geared to new realities and applied through the courts, there will be substantial deterioration in the atmosphere, which is required for investment, the certainty of economic transactions, and even the situation of the poorest groups, aggravated by inadequate regulation of areas such as their labor and family relations. In these terms, reformulation of the legal order should also give consideration to the need to truly reconcile the State and civil society, developing tools to implement effectively the fundamental collective rights of citizens: the right to social security, the right to preservation of the environment, consumer rights, and the inalienable rights of marginal sectors and ethnic groups—in sum, that array of rights that lacks groups or individuals from the community to defend it since it affects diverse interests. At the same time, the transformation of values, occupational outlooks, and forms of organization in modern society leads the public to harbor high expectations about the way in which law and the courts should protect and facilitate implementation of those values. It would not be surprising if the public were eventually to exert pressure to achieve this end. Improvement of the judicial system, then, should be regarded as an integral part of social development. Failure to effect this improvement tends to isolate this sector from the public debate about development, to limit the resources available for it and, what is worse, to cause its development to be planned from narrow or inadequate perspectives. Nevertheless, it is worth repeating that the judicial system does not bear sole responsibility for all of this but shares that responsibility with the obsolescence, rigidity, and formality of the law. Modernization of the judicial branch is inseparable from change in the prevailing legal culture. The necessary transformation of legal culture has two aspects. The first refers to

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the different activities of those who engage in the legal profession, and it involves replacement of the traditional formalist and dogmatic orientation of men of law by a vision that is more sensitive to the interpretation of new realities. The second involves the need to introduce appreciation for the legal order into civic values and behavior in areas such as payment of taxes, respect for family values, observance of environmental regulations, and the rejection of delinquency and terrorism. Modernization of the law and the administration of justice constitute an integral part of the reform of society and the State. This seminar has clarified the demands made today by economic and social development in law and justice. These demands differ greatly from those of the past. The public wants its concerns to be recognized in legal concepts and applications. The law must likewise meet the demands arising from the globalization and internationalization of today' s world, in which Latin America is also involved. If left unmet, these demands give rise to what Jim Michel aptly referred to this morning as the "vicious circle of frustration." This frustration leads public opinion to expect little of the existing legal system. The absence of expectations, and pressures, means that political bodies respond weakly to the needs of the community, causing a decline in the administration of justice, which feeds back into the frustration of public opinion. Modernization of the courts is closely linked to their institutional structure. In recent years in some countries, there has been a tendency to strengthen the independence and autonomy of the judiciary not simply with regard to administering justice, as might be expected, but also to planning its own institutional development and financing. This is positive since no one knows its needs better than the judiciary itself, but it should be recalled that within democratic theory the principle of separation of powers is never absolute. To the contrary, it is assumed that they operate as an effective system of checks and balances, that there is efficient and consistent coordination among them, and that all are accountable to the people. The success of efforts to modernize the judicial branch will depend fundamentally on the confidence it inspires, the independence and efficacy with which it administers justice, and its ability to respond to constantly changing social demands. Among the demands discussed over the course of these days are the challenges that the Minister spelled out in detail in her final statement. They consist of the need to overcome the limitations that stem from the formalistic tendencies of the law, which is no less important than the need to ensure that development surmounts purely economistic approaches. These needs are closely related and must be reconciled. Other demands include challenges to the professional training of jurists to capture and include the living dynamics of reality and, from an organizational perspective, the need to improve the administration of justice and make it better able to plan its development internally, while still retaining a broader view of its relations with the other branches of government, society, and the public. They include, as well, demands for greater access to justice, already mentioned by the Minister, and formulas to allow cases to be settled before they reach the higher courts. Justice should not be regarded as aloof from what the Anglo-Saxons call "accountability" to society and its representative bodies. Finally, we must recognize the responsibility of citizens themselves, who have rights but also obligations to society and the State, which include supporting the enforcement of the law, paying taxes, and rejecting all kinds of delinquency and terrorism.

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JUSTICE AND DEVELOPMENT

What shall we do now, and how shall we continue this dialogue? The Bank realizes that its members are according greater importance to the institutional framework of development, and, if requested, is prepared to assist their efforts to strengthen it. This is especially applicable to the modernization of law and its implementation by the courts. As I pointed out at the beginning of the seminar, these meetings were not organized casually, but as a reflection of the Bank's long-standing concerns in this field. It must be recognized, first, that we are not starting from zero. International cooperation has made major advances in this sector, and here I must point to the admirable work performed by AID, of which many of you are users and witnesses, as well as the actions that the World Bank has been undertaking more recently. Institutional interaction is basic to any effort the Bank may make to cooperate with its member countries in this sector. I also wish to recall the words of Dr. Shihata in making clear that the aim of international bodies is not to replace the governments of their member countries, nor to give them prescriptions, but to support them in their policy decisions and to facilitate their implementation. We must never consider requests for cooperation from these bodies as unwelcome meddling. In all events, we have been engaging in discussions with colleagues and collaborators, trying to draw some initial conclusions about the work that the Bank might undertake in this field alongside the agencies that have been working in the area, with a view to the future and to pursuing the task we have learned about during the past few days here in San Jose. I have identified 10 fronts on which I believe the Bank might take action in the short and medium terms: • In the first place, we consider it important to intensify the study and analysis of these issues in the Bank, creating a focal point within the institution under the leadership of its Legal Department. In doing so, we are simply reflecting the firm support that the Board of Directors of the Bank has given to this seminar. • In keeping with the opinions we have heard, we consider it important to hold this seminar regularly every two or three years and to continually expand and renew its audience, involving an ever-increasing number of people with the responsibility of defining the law and applying justice. I believe that a meeting of this type, which has proven so successful, deserves to be continued in the future and possibly duplicated in different Latin American countries as a way of magnifying the results achieved in San Jose, Costa Rica. • We plan to publish the materials and conclusions of this seminar with great care, so that they may serve as a reference for governments in their efforts to modernize the law and the courts. Along this line, we invite all those who have participated to send us additional thoughts or comments that might be included in the publication of this seminar. • We plan to invite AID and the World Bank to join us immediately in beginning a process of evaluating the very useful experience that is being gleaned in countries of the region and outside it, which could serve as a kind of inventory for what Latin America is doing with respect to modernizing its system of justice.

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• The fifth conclusion is that workshops should be organized on specific subjects, since efforts of this kind have produced good results in the past, including the oral proceedings that have prospered in Uruguay, organization of the Office of the Attorney General in Costa Rica, penal reform in Argentina, and mediation and arbitration in Colombia, to mention only a few of the successes. In doing this we could focus on smaller, more specific, and more operational meetings that could help to publicize the successes that are being achieved in Latin America. • The Eighth Capital Increase of the Bank is an occasion on which the Bank engages in policy discussions with all the governments of its member countries. The discussions are not limited to the increase in Bank resources, but extend to the policies, objectives, and programs that are the Bank's mandate for the following period. We plan to suggest to the Bank's Board of Executive Directors and its Governors that linking the Bank to the concern of justice be made an objective of the work of the Bank in Latin America during the next four years, beginning in 1994, and that this aspect be included in the bases for the Eighth Replenishment. • The Bank engages in ongoing planning with its countries, which consists of dialogue with our Governors and, through them, with other State agencies to identify projects or action programs of interest to them. We plan to include the subject of the administration of justice in this planning exercise. • We believe that it would be useful to make technical assistance available to Latin American governments and their judicial bodies in order to identify general problems and solutions for the sector, which could serve as a starting point for the subsequent development of specific projects. • Beginning with the suggested evaluation of national problems and strategies, the Bank could undertake loan and technical assistance operations to strengthen and modernize judicial systems, including organization and information systems, training, and structural improvements. • Finally, we plan to revive and review INTAL' s international and regional legal experience, so that that institution can include the subject of law and its application to integration in its programs. These 10 points seem to me to be some of the conclusions that the Bank as an institution can draw from this seminar. We propose to talk about them in Washington, discuss them with our authorities—the Board of Executive Directors and the Governors—and cooperate with the World Bank and AID, inviting them to engage in dialogue on these ideas. Of course, we intend to act prudently to avoid undertaking projects that may lead to unwarranted regional or institutional failures. From this perspective, it does not seem appropriate under the current circumstances and in the present stage of this initiative to start out with very narrow specific tasks, or actions geared to special requirements of the national judiciaries of our member countries. Instead, we should look to projects based on a general analysis of the judicial sector in the region or in any given country. I recall that Mr. Felipe Herrera always said that this institution should be something more than a Bank, that it should not just make loans or offer technical assistance, and it is this "something more than a Bank" that has allowed us to join you, our governments, and administrators of justice, in the role of catalyst in supporting

CLOSING REMARKS

JUSTICE AND DEVELOPMENT

efforts of this kind. If we have managed to draw your attention to this cause, I would say that our expectations have been fully met. I wish to thank all of you who have honored us with your presence, and the Government of Costa Rica for its support, and to express my hope that this will be the first step towards fruitful cooperation in the future.

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OFFICIAL DELEGATIONS

Pedro Lafont Pianetta Chief Justice of the Supreme Court

ARGENTINA Oscar Lujan Fappiano Attorney General

Francisco Jose Sintura Varela Deputy General Prosecutor Hernando Yepes Arcila President, Consejo Superior de la Judicatura (Supreme Council of the Judiciary)

BAHAMAS Joaquim Gonsalves-Sabola Chief Justice Orville A. Turnquest, Q.C. Attorney General and Minister of Justice BARBADOS Maurice A. King Attorney General Denys Williams Chief Justice BELIZE George N. Brown Chief Justice BOLIVIA Javier Dips Zogbi Prosecutor for the District of La Paz Edgar Oblitas Fernandez Chief Justice, Supreme Court Carlos Saavedra Bruno Minister of the Interior, Migration, Justice and Social Defense BRAZIL Tercio Sampaio Ferraz Jr. Attorney General CHILE Francisco Cumplido Cereceda Minister of Justice COLOMBIA Giro Angarita Baron Justice, Constitutional Court Carlos Gustavo Arrieta Padilla Attorney General Roberto Hinestrosa Deputy Minister of Justice

COSTA RICA Edgar Cervantes Villalta Chief Justice, Supreme Court of Justice Luis Paulino Mora President, Constitutional Chamber, Supreme Court of Justice Elizabeth Odio Benito Minister of Justice Adrian Vargas Benavides Attorney General DOMINICAN REPUBLIC Nestor Contin Aybar President of the Supreme Court of Justice Efrain Reyes Duluc Attorney General ECUADOR Carlos Larreategui Attorney General EL SALVADOR Jorge A. Giammattei Aviles Justice, Constitutional Chamber, Supreme Court Rene Hernandez Valiente Minister of Justice Jose Vicente Machado Salgado Attorney General GUATEMALA Francisco Perdomo Sandoval Minister of the Interior Juan Jose Rodil Peralta Chief Justice, Supreme Court

LIST OF PARTICIPANTS

JUSTICE AND DEVELOPMENT

GUYANA Bernard C. DeSantos Minister of Legal Affairs and Attorney General

TRINIDAD AND TOBAGO Keith Sobion Attorney General and Minister of Legal Affairs

Kenneth George Chancellor of the Judiciary Supreme Court of Judicature

URUGUAY Rafael Addiego Bruno Former Chief Justice of the Supreme Court of Justice

HONDURAS Orlando Lozano Martinez President of the Supreme Court of Justice

Rafael Robatto Calcagno Attorney General

Leonardo Matute Murillo Attorney General Roque Ruben Pascua Rivera Deputy Minister of the Interior and Justice JAMAICA Rt. Hon. Edward Zacca Chief Justice of the Supreme Court MEXICO Humberto Roman Palacios Member, First Circuit Court of Appeals in Penal Matters NICARAGUA Guillermo Vargas Sandino Attorney General Enrique Villagra Morales Judge, Supreme Court of Justice PANAMA Juan B. Chevalier Minister of the Interior and Justice

VENEZUELA Alirio Abreu Burelli First Vice-President of the Supreme Court of Justice

SPEAKERS Rafael Addiego Bruno Former President of the Supreme Court of Justice Uruguay Hector Alegria Professor Universidad de Buenos Aires Argentina Carlos Gustavo Arrieta Padilla Attorney General Colombia Antonio Boggiano Chief Justice of the Supreme Court Argentina

Carlos Lucas L6pez T. Chief Justice, Supreme Court of Justice

Carlos Eduardo Bosisio Attorney Brazil

PARAGUAY Luis Escobar Faella Attorney General

William Douglas High Commissioner of Barbados to the United Kingdom Barbados

Marcos Riera Hunter Judge, Civil and Commercial Court of Appeals Judicial Branch

Hector Fix-Zamudio President of the Inter-American Court of Human Rights

SURINAME Cicile George De Randamie Attorney General Reinier E. Th. Oosterling Chief Justice of the Supreme Court

Hector Gros Espiell Ambassador of Uruguay France German Hermosilla Arriagada President of the Court of Appeals of Santiago in San Miguel Chile

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PARTICIPANTS

Fernando Hinestrosa Rector Universidad Externado de Colombia Colombia Ivan Lavados Monies Executive Director Centra Interuniversitario de Desarrollo Chile Nestor-Humberto Martinez Neira Deputy General Counsel Inter-American Development Bank United States James H. Michel Acting Administrator Agency for International Development United States Didier Opertti Badan Ambassador to the Organization of American States Uruguay Rogelio Perez Perdomo Scientific Director International Institute for the Sociology of Law Onati, Gipuzkoa, Spain Tomas de la Quadra-Salcedo Minister of Justice Spain Ibrahim F. I. Shihata Vicepresident and General Counsel World Bank Luis Fernando Solano Carrera Justice Supreme Court of Justice Costa Rica Francisco Villagran-Kramer Member United Nations International Law Commission Guatemala

SPECIAL GUESTS Eduardo Aldana Fundacion para la Educacion Superior (Foundation for Higher Education) Colombia

William Alexander Former Congressman for the State of Arkansas U.S. House of Representatives Edgar Ayales Executive Director Inter-American Development Bank Edgar Barrientos Cazazola Chief Justice Tribunal de Justicia del Acuerdo de Cartagena Ecuador Baltasar Cavazos Flores Judge Administrative Tribunal IDB Gonzalo J. Facio Ambassador of Costa Rica to the United States Washington, D.C. P. Telford Georges Member Inter-American Juridical Committee Alfredo Martinez Moreno Judge Administrative Tribunal IDB Ildelio Martins Judge Administrative Tribunal IDB Didier Opertti Badan Ambassador of Uruguay to the Organization of American States Sara Ordonez Noriega President Financiera Energetica Nacional Colombia A. Humberto Petrei Executive Director Inter-American Development Bank Hernan Saenz-Jimenez Executive Secretary Administrative Tribunal IDB Roberto Salazar Manrique President Tribunal Andino de Justicia Ecuador Kenneth G. Smith Former President Administrative Tribunal IDB

Rene Hernandez Valiente Minister of Justice El Salvador

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OBSERVERS Beatriz Abreu Herrera Attorney Venezuela Jose Arthur Alves Da Cruz Rfos Vice President, Consejo Consultivo de ILANUD Mariana Argudo Chejin Minister of State for Social Weil-Being and President, Consejo Consultivo de ILANUD Ecuador Francisco Barahona Assistant Rector Universidad para la Paz Costa Rica Elfas Carranza Lucero Assistant Director, ILANUD Gustavo Certad Maroto Special Assistant ILANUD Carl Cira Chief, Office of the Administration of Justice, AID Chile Jose Jesus Conejo Amador Ambassador of Costa Rica to Barbados Gregorio Contreras OAS Representative Costa Rica Victor Corzo Cabanas Advisor to the Attorney General Mexico Laura Chinchilla Office of the Administration of Justice, AID Costa Rica Jose Davalos Morales Deputy Attorney General, Office of the Attorney General Mexico Raymond De Roon Counsellor Justice Embassy of the Netherlands The Netherlands Aura Emerita Guerra de Villalaz Deputy Chief Justice, Supreme Court of Justice Panama

Walter Guerrero Vivanco Former Chief Justice of the Supreme Court Ecuador Linn Hammergren Chief, Office of Administration of Justice, AID Costa Rica Arturo Herrera Porras Comptroller ILANUD Deborah Kennedy de Iraheta Agency for International Development El Salvador Anna Klenicki Agency for International Development El Salvador Jose Antonio Lopez Sanabria Advisor Office of the Attorney General Honduras Alberto Luna Yanez Under-Secretary of Justice Ministry of the Interior, Migration, Justice and Social Defense Bolivia Waleed Malik Public Sector, Management Specialist World Bank Fernando Marquez Diaz Special Assistant to the Minister of Justice Colombia Luis Jose Mejia Senior Public Sector Management Specialist World Bank Adolfo Montero Stanziola Advisor to the Attorney General Panama Osvaldo Navarro Advisor to the Attorney General Honduras Jorge Obando Advisor Ministry of Justice El Salvador Benjamin Odio Chang Legal Counsel ILANUD Rodolfo Osorio Ponce Director of Planning ILANUD

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PARTICIPANTS

Fernando Pastor Lopez Under-Secretary Ministry of Justice Spain Carmen Puig Galindo Executive Advisor, Minister's Cabinet Ministry of Justice Spain Malcolm D. Rowat Project Analyst World Bank Camilo Sanpedro Arrubla Advisor, Ministry of Justice Colombia Douglas Tinsler Assistant Director, AID Costa Rica Juan Enrique Vargas Viancos Director Corporation de Promotion Universitaria Chile Gisele von Mulenbrock Michaelis Cabinet Chief of the Ministry of Justice Chile Christa Wellman Executive Assistant Presidency of the Supreme Court of Justice Guatemala Ronald Woodbridge Officer, International Cooperation ILANUD

IDE ADMINISTRATION Enrique V. Iglesias President of the Bank John M. Niehuss Legal Counsel Andres Bajuk Chief, Office of the Presidency Nestor-Humberto Martinez Neira Deputy General Counsel Juan Manuel Corredor Representative in Costa Rica Andres Marchant Deputy Representative in Costa Rica Maria Elisa Bernal Special Advisor Economic and Social Development Department Christina Biebesheimer Attorney Legal Department Carlos Cordovez Attorney Legal Department Edmundo Jarquin Consultant Project Analysis Department Santiago Gomez Consultant Legal Department

Oscar Antonio Oyuela Advisor to the Attorney General Honduras

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