Presentation on impact of lack of judicial independence in transnational and international litigation. ABA, Miami, October 2012. Lack of judicial independence impacts not only internally to the citizens who suffer that, but can also hinder enforcement of judgments in foreign jurisdictions as well as create a cause of action in human right and foreign investment claims, inter alia.

1. Omar E. Garcia-Bolivar
Lack of judicialLack of judicial
independence:independence:
impact in transnationalimpact in transnational
and international litigation.and international litigation.
How to determine that?How to determine that?
ABA/IABA Meeting. Miami.ABA/IABA Meeting. Miami.
October 19October 19thth
, 2012, 2012

2. Omar E. Garcia-Bolivar
Lack of judicial independence: What.Lack of judicial independence: What.
 Judiciary is not reliable.Judiciary is not reliable.
 Judges are prone to influence and are perceivedJudges are prone to influence and are perceived
to decide cases based on factors different thanto decide cases based on factors different than
the law and the facts.the law and the facts.
 Influence can be political or economic. MassInfluence can be political or economic. Mass
media/public opinion?media/public opinion?

3. Omar E. Garcia-Bolivar
The standard: enforcementThe standard: enforcement
 Analysis is not of a specific case but of theAnalysis is not of a specific case but of the
whole judiciary.whole judiciary.
 Enforcement of foreign judgment:Enforcement of foreign judgment:
 UFMJRA:UFMJRA: system of impartial tribunalssystem of impartial tribunals..
 Hilton:Hilton: system…system… likely to secure an impartiallikely to secure an impartial
administration of justiceadministration of justice and…nothing to showand…nothing to show
prejudice in the court or in the systems of laws..prejudice in the court or in the systems of laws..
 OsorioOsorio: in: in practicepractice……

4. Omar E. Garcia-Bolivar
The standard: FNCThe standard: FNC
 Adequacy: systemic analysis or not.Adequacy: systemic analysis or not.
 SchwarzingerSchwarzinger: case: case would not be decided onwould not be decided on
meritsmerits in alternate forum, hence notin alternate forum, hence not
appropriate.appropriate.
 Banco LatinoBanco Latino: adequate forum need: adequate forum need not be anot be a
perfect oneperfect one. Only corruption in particular case. Only corruption in particular case
will warrant finding of alternate as inadequate.will warrant finding of alternate as inadequate.

5. Omar E. Garcia-Bolivar
The standard: InternationalThe standard: International
Investment LawInvestment Law
 CAFTA: FET includesCAFTA: FET includes obligation to not denyobligation to not deny
justicejustice in accordance with principles of duein accordance with principles of due
process of law…process of law…
 U.S. BIT-Ecuador: obligationU.S. BIT-Ecuador: obligation to provideto provide
effective meanseffective means of asserting claims andof asserting claims and
enforcing rights.enforcing rights.

6. Omar E. Garcia-Bolivar
Lack of judicial independence: WhyLack of judicial independence: Why
 Enforcement of foreign judgments.Enforcement of foreign judgments.
 Forum non conveniens: adequacy.Forum non conveniens: adequacy.
 Insurance policy claims.Insurance policy claims.
 Denial of justice under international investmentDenial of justice under international investment
law.law.
 Human rights violationHuman rights violation..
 Futility argument.Futility argument.

7. Omar E. Garcia-Bolivar
Lack of judicial independence: HowLack of judicial independence: How
 Delicate matter. Unbiased:Delicate matter. Unbiased: OBJECTIVEOBJECTIVE..
 System in reality: contrast of law and facts.System in reality: contrast of law and facts.
 Factors:Factors:
 Appointment of judges.Appointment of judges.
 Decision making.Decision making.
 Discipline.Discipline.
 Removal of judgesRemoval of judges
LAW FACTS

8. Omar E. Garcia-Bolivar
Lack of judicial independence: HowLack of judicial independence: How
 Validation:Validation:
 360 degree approach.360 degree approach.
 Secondary sources:Secondary sources:
 No indicators on judicial independence.No indicators on judicial independence.
 State Department reports.State Department reports.
 World Bank.World Bank.
 United Nations.United Nations.
 European Union.European Union.
 NGOs.NGOs.

9. Omar E. Garcia-Bolivar
Lack of judicial independence: endLack of judicial independence: end
 Lack of judicial independence matters in a globalLack of judicial independence matters in a global
world.world.
 It is measurable.It is measurable.
 Challenges ahead: objective way to do it.Challenges ahead: objective way to do it.
 It can be of use to policy makers in reformIt can be of use to policy makers in reform
agenda.agenda.
ThanksThanks,,

10. Omar E. Garcia-Bolivar
Lack of judicial independence: endLack of judicial independence: end
 Lack of judicial independence matters in a globalLack of judicial independence matters in a global
world.world.
 It is measurable.It is measurable.
 Challenges ahead: objective way to do it.Challenges ahead: objective way to do it.
 It can be of use to policy makers in reformIt can be of use to policy makers in reform
agenda.agenda.
ThanksThanks,,