International Journal of Public Law and Policy

Vacca, Alessia

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060078

This paper is aimed to analyse the functions of the European Court of Auditors and of a domestic Court of Auditors, the Italian one, to underline how performance auditing is important in fighting corruption and mismanagement in the public administration. Indeed, performance auditing is an important instrument in order to improve transparency, efficiency and accountability in public administration. This is an important issue when domestic public administrations are managing EU funds. Performance auditing is a cornerstone to ensure good public sector governance. The establishment of institutions aimed at providing accountability is an important step in order to guarantee transparency and, consequently, democracy but, more important, is to ensure their efficiency. An efficient public administration is necessary in order to guarantee prosperity in a country.

Mmusinyane, Boitumelo ; Serumaga-Zake, Steven Sekirya

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060079

Africa has for long been seen as a hub for the cultivation and preservation of dictators hoping to stay in power forever. The adoption of the Rome Statute seems to have brought an immunity paradigm shift by bringing hope to the victims of these tyrannical rules. Although the ICC is viewed by many African leaders as a tool used by the West to victimise African leaders and humiliate them on the international platform, this paper attempts to critically justify the ICC’s mission through evaluating possible reasons why the ICC should be supported and encouraged. Advantages such as the possibility of redressing the rampant impunity pandemic is the major justification why it may be using Africa as a test to bring an end to impunity at the same time rehabilitating those still in power to comply with the international humanitarian and human rights law obligations.

Srinivasan, Divya ; Pathak, Harshad ; Panjwani, Pratyush ; Varma, Punya

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060080

The issue of bribery in international commercial arbitration throws up complex issues throughout the proceedings. The given paper addresses the three procedural concerns associated with claims tainted by bribery – arbitrability, admissibility, and investigative powers of arbitral tribunal. Regarding arbitrability, it is amply clear that claims tainted by bribery are no longer non-arbitrable in nature. However, an arbitral tribunal ought to proceed to the merits of the dispute only in the circumstance that such claims are found to be admissible before the tribunal. With respect to admissibility of such claims, the authors suggest that if bribery is shown to exist, then such tainted claims shall be procedurally barred due to the application of the Doctrine of Clean Hands and the public policy implications. Lastly, the paper also discusses the three-fold duty of an arbitrator as to determination of corruption in a commercial dispute.

Ndlovu, Lonias

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060081

In comparison with other countries in the SADC region, South African courts have relatively been active in developing World Trade Organization (WTO) law in the municipal context. This development has widely been confined to dumping/anti-dumping matters and to a very limited extent, safeguards measures. In this paper, I critically analyse one contentious case, namely, Progress Office Machines CC v South African Revenue Services and come to the inescapable conclusion that the decision in the case was wrong. Such a conclusion is borne out of the fact that the Court’s ruling had no textual basis either at WTO law or municipal law. The above criticism notwithstanding, the judgement does make a modest contribution to the development of South African jurisprudence on the subject of dumping/anti-dumping. Therefore, the decision has both positive and negative aspects which this paper attempts to highlights in a balanced critical manner.

Momen, Md. Nurul

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060082

Access to justice is the keystone of good governance. This article examines the current political environment of the important so-called democracy in South Asia: Bangladesh. There were the hopes of the people in Bangladesh that new democracy in 1991 would bring significant changes in access to justice in the country, but the new democracy has not brought any changes to the lives of the people. In the findings, in general, the research found that access to justice in Bangladesh; it is the controversial political environment which is challenging for promoting access to justice.

Akhtar, Zia

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060083

The legal regime has become increasingly strict for those facing deportation as ‘illegal’ migrants in both the UK and the USA. The UK Borders, Citizenship and Immigration Act 2009 has created an overlap between criminal and the seeker of asylum or refugee. It has led to the overstayers’ confinement without safeguards for their age and medical condition. As a consequence the legal system has been lacking in protection of human rights for those pending deportation. In the USA, the Intelligence Reform and Terrorism Prevention Act 2004 enforces the Western Hemisphere Travel Initiative 2009 that enables the federal government to monitor and detain people in transit from the southern hemisphere breaching due process. The empirical studies show the link between detention, disease and epilepsy of irregular immigrants. This article argues for a more humane policy from the rigor of incarceration if the migrants do not present a clear and present danger.

Mapuva, Jephias

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060084

Democratisation process in Africa has been under increasing threat from despotic political leaders who have failed to contend with the sweeping forces of globalisation demanding for the opening up of political space. Armed with claims of the liberation struggle, most of them failed to provide for their people with many incidences of high poverty levels, and high illiteracy rates among the grassroots people. A strong prodemocracy wind that has swept across the continent has been viewed with suspicion by most African leaders who perceive it as Western attempts at neo-colonialism. This has further compromised the relationship between the state and civil society as governments have accused civil society of being conduit to destabilise African countries. The continued existence of ex-dictators in active politics or in influential positions in many African countries, have remained a threat to the restoration or deepening of democratic institutions within the African continent.

Smith, Nucharee Nuchkoom

2014 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2014.060120

Thailand, as a major trading nation, has been entering into trade agreements for centuries. Over recent years there has been an emphasis on an ever increasing number of bilateral and multi-lateral free trade agreements (FTAs). One of the social impacts of any change in the economic structure of a country is the negative impact on some sectors of the economy. Thailand entered into its first Free Trade Agreement with a developed country in 2004 when it joined with Australia to form the Thailand-Australia Free Trade Agreement (TAFTA) which covers trade in both goods and services. Opening of markets can have both beneficial and detrimental effects on the livelihoods and social fabric of the member countries. TAFTA addresses the potential issue of social dislocation by allowing Thai industry time to adjust to the changed trading environment. This paper will show that overall, TAFTA will have a positive impact on the Thai economy largely in part to the complementarity of the Australian and Thai economies and the changes required to the Thai legal and administrative frameworks to be competitive.