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Judging the Independence and Integrity of Foreign Courts

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Chapter Summary

The English courts have recently had to deal with two difficult and related issues. Both involve evaluation by English courts, applying fundamental norms, namely, judicial independence and the principle of adjudicative finality, of a foreign court's exercise of jurisdiction. The Dutch court had held that a Russian court lacked independence when it had decided to annul four Russian arbitration awards. It is submitted that the English Court of Appeal's decision is attractive. It would be surprising and unacceptable if the English courts were in effect to abdicate responsibility for testing whether foreign courts lack independence by instead deferring, under the rubric of issue estoppel, to a third country's prior determination of this point. In both English cases, the status of a foreign decision fell to be determined by reference to a fundamental principle which went to the root of the foreign court's integrity.

Keywords: Dutch court; English courts; foreign court's integrity; judicial independence



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