widely recognised and applied. Also, the EU instruments of procedural law have
limited scope and do not extend to all sectors and cases. Hence, the search for
sovereignty in dispute resolution would be defective, if national instruments were
ignored. Two examples of UNCITRAL’s work are discussed. The first is the
1958 New York Convention negotiated through UNCITRAL, which has 159
parties, established case law, and is widely recognised and respected.
50 The
second example tells a different story. Since 2010, UNCITRAL’s Working
Group III has focused on drafting uniform procedural rules for ODR, with very
little progress.
National legislation
In Finland, the separation of powers between the legislative body and the
judiciary is provided for in the Constitution of Finland (731/1999). The section
is located just after the section on democracy and rule of law, which accentuates
that the powers of the state are vested in the people represented by the Parliament, and establishes that the exercise of public powers must be based on law.
The section is followed by a section on the territory of Finland. According to
section 3:
(1) The legislative powers are exercised by the Parliament, which shall also
decide on State finances. (2) The governmental powers are exercised by the
President of the Republic and the Government, the members of which shall
have the confidence of the Parliament. (3) The judicial powers are exercised
by independent courts of law, with the Supreme Court and the Supreme
Administrative Court as the highest instances.
51
Section 3 of the Constitution of Finland is the highest order provision in the
national legislation regarding the delegation of power between different branches
of government. In addition to this provision on principles of organisation, the
basic right to a fair trial is provided for in section 21, titled ‘Protection under
the law’:
(1) Everyone has the right to have his or her case dealt with appropriately
and without undue delay by a legally competent court of law or other
authority, as well as to have a decision pertaining to his or her rights or
obligations reviewed by a court of law or other independent organ for the
administration of justice. (2) Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the
right of appeal, as well as the other guarantees of a fair trial and good
governance shall be laid down by an Act.
This division between the organisation of the judiciary and the right to a fair trial
is not out of the ordinary. Neither one of the quoted provisions are surprising,
nor do they reveal some hidden meanings on closer inspection. What makes their
122 Three quests for justification
limited scope and do not extend to all sectors and cases. Hence, the search for
sovereignty in dispute resolution would be defective, if national instruments were
ignored. Two examples of UNCITRAL’s work are discussed. The first is the
1958 New York Convention negotiated through UNCITRAL, which has 159
parties, established case law, and is widely recognised and respected.
50 The
second example tells a different story. Since 2010, UNCITRAL’s Working
Group III has focused on drafting uniform procedural rules for ODR, with very
little progress.
National legislation
In Finland, the separation of powers between the legislative body and the
judiciary is provided for in the Constitution of Finland (731/1999). The section
is located just after the section on democracy and rule of law, which accentuates
that the powers of the state are vested in the people represented by the Parliament, and establishes that the exercise of public powers must be based on law.
The section is followed by a section on the territory of Finland. According to
section 3:
(1) The legislative powers are exercised by the Parliament, which shall also
decide on State finances. (2) The governmental powers are exercised by the
President of the Republic and the Government, the members of which shall
have the confidence of the Parliament. (3) The judicial powers are exercised
by independent courts of law, with the Supreme Court and the Supreme
Administrative Court as the highest instances.
51
Section 3 of the Constitution of Finland is the highest order provision in the
national legislation regarding the delegation of power between different branches
of government. In addition to this provision on principles of organisation, the
basic right to a fair trial is provided for in section 21, titled ‘Protection under
the law’:
(1) Everyone has the right to have his or her case dealt with appropriately
and without undue delay by a legally competent court of law or other
authority, as well as to have a decision pertaining to his or her rights or
obligations reviewed by a court of law or other independent organ for the
administration of justice. (2) Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the
right of appeal, as well as the other guarantees of a fair trial and good
governance shall be laid down by an Act.
This division between the organisation of the judiciary and the right to a fair trial
is not out of the ordinary. Neither one of the quoted provisions are surprising,
nor do they reveal some hidden meanings on closer inspection. What makes their
122 Three quests for justification