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DISPUTE RESOLUTION: COMPARATIVE STATE PRACTICE

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Prepared by The Public International Law & Policy Group

November 2006

DISPUTE RESOLUTION: COMPARATIVE STATE PRACTICE
Executive Summary The purpose of this memorandum is to provide a brief overview of alternative dispute resolution (ADR) bodies formed to resolve governance disputes between central and provincial governments. ADR bodies may be used to resolve governance disputes in states with highly autonomous provinces or states where various levels of power have been devolved to a province. In most states, ADR bodies operate outside the formal judicial system. The Court of Arbitration in Belgium; the Ad Hoc Board in Denmark; the Åland Delegation in Finland; and the Legislative Mediation Committee in South Africa highlight the variety of ways ADR bodies may be designed and incorporated as a mechanism to resolve disputes relating to devolution of power.

DISPUTE RESOLUTION: COMPARATIVE STATE PRACTICE
Table of Contents Statement of Purpose Introduction Belgium Parties Involved Mandate and Operating Powers Composition Referral Process Decision-Making Process Denmark and Greenland Parties Involved Mandate and Operating Powers Composition Decision-Making Process Finland and the Åland Islands Parties Involved Mandate and Operating Powers Composition Decision-Making Process South Africa Parties Involved Mandate and Operating Powers Composition Decision-Making Process Conclusion 1 1 1 1 2 2 3 3 4 4 4 4 4 5 5 5 5 6 6 6 7 7 7 8

Dispute Resolution: Comparative State Practice

DISPUTE RESOLUTION: COMPARATIVE STATE PRACTICE
Statement of Purpose The purpose of this memorandum is to provide a brief overview of alternative dispute resolution bodies formed to resolve governance disputes between central and provincial governments. Introduction This memorandum provides a review of alternative dispute resolution (ADR) bodies formed as a mechanism to resolve governance disputes between central and provincial governments. Some states that devolve power to a province or autonomous region establish ADR bodies that operate outside of the formal judicial system. Operating outside the formal judicial system and allowing both the central and provincial governments to appoint members to the body is often done to ensure that the ADR body remains impartial. This helps give credibility to the findings of the body and encourages all parties to accept the results. This memorandum reviews the following ADR bodies: the Court of Arbitration in Belgium; the Ad Hoc Board in Denmark; the Åland Delegation in Finland; and the Legislative Mediation Committee in South Africa. For each of the selected states, this memorandum provides a summary of the parties involved; the mandate and operating powers; the composition of the body; and how the decision-making process is conducted. Belgium Parties Involved The parties involved in the Court of Arbitration include the central government in Belgium and its three regions,1 three communities,2 and four linguistic regions. The linguistic regions are the French-speaking region, the Dutch-speaking region, the bilingual region of Brussels, and the Germanspeaking region.3

1 2

These include the Walloon region, the Flemish region, and the Brussels region. These include the French Community, the Flemish Community, and the German Community. 3 Constitution of Belgium (1997), Articles 1-4, available at http://www.fed-parl.be/constitution_uk.html.

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Dispute Resolution: Comparative State Practice

Mandate and Operating Powers The Belgian Constitution was amended in 1980 to include a Court of Arbitration.4 The Court, which began operations in 1985, is a specialized judicial authority that is independent of the central and regional legislatures, executives, and judiciaries.5 The organization, jurisdiction, functioning, and procedure of the Court were established by statutes, which were generally passed by a special majority of the national legislature.6 The Court has the exclusive authority to review laws and regulations to ensure they are in compliance with the constitutional division of powers among the central government, communities, and regions.7 Composition The Court is composed of twelve judges, whom the King appoints for life. The King selects the judges from a list of candidates proposed alternately by the House of Representatives and the Senate.8 A majority of the members of the nominating body must support each candidate on the list.9 The overall composition of the Court must maintain a linguistic balance, as well as a balance of judges with legal and legislative experience. Of the twelve judges, six must belong to the Dutch linguistic group and six to the French linguistic group.10 At least one judge must have adequate knowledge of German. Within each linguistic group, three judges must have a legal background, and three judges must have at least five years’ experience as members of parliament.11 The Court has two presidents on the Court, one elected by each linguistic group. The role of the presiding judge is filled by one of the two presidents, determined by a yearly rotation.12

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Constitution of Belgium, Article 142. In 1988 and 2003, the scope of the court’s mandate was expanded and it now operates as a constitutional court in addition to a court of arbitration. The Place of the Court of Arbitration, Court of Arbitration of Belgium website, available at http://www.arbitrage.be. 5 The Place of the Court of Arbitration, Court of Arbitration of Belgium website. As states decentralize, either within a unitary structure, or from a unitary to a federal structure, it becomes increasingly necessary to have an ADR body whose mandate is to adjudicate disagreements between the center and the provinces. 6 The Place of the Court of Arbitration, Court of Arbitration of Belgium website. 7 The Place of the Court of Arbitration, Court of Arbitration of Belgium website. 8 Organization of the Court of Arbitration, Court of Arbitration of Belgium website. 9 At least two-thirds of the members must be present when voting on the candidates. Organization of the Court of Arbitration, Court of Arbitration of Belgium website. 10 Organization of the Court of Arbitration, Court of Arbitration of Belgium website. 11 Organization of the Court of Arbitration, Court of Arbitration of Belgium website. 12 Organization of the Court of Arbitration, Court of Arbitration of Belgium website.

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Dispute Resolution: Comparative State Practice

Referral Process Cases to annul laws or regulations may be brought to the Court by government representatives and citizens and may be instituted in Dutch, French, or German.13 Government representatives eligible to bring cases to the Court include the central government’s Council of Ministers and the governments of the communities and regions. Additionally, the presidents of all legislative assemblies may bring cases, at the request of two-thirds of their members.14 Citizens may also bring cases if they can demonstrate that they are likely to be “personally, directly and unfavourably affected” by the challenged regulation.15 Generally, cases must be referred to the Court within six months of the publication of the challenged law or regulation.16 The Court may also hear questions brought by administrative tribunals. If a tribunal will hear a case that addresses a question about the division of powers among the state, communities, and regions, it must raise the issue preliminarily with the Court of Arbitration.17 That means that the Court must address that question before the tribunal may pass judgment on the case. Decision-Making Process A panel of seven judges hears each case. 18 Each panel must consist of three judges from each linguistic group, two former members of parliament, two judges with prior legal backgrounds, and the two presidents.19 The Court is empowered in “exceptional circumstances” to grant a preliminary injunction for up to three months while it decides the case.20 A preliminary injunction orders the action or legislation to stop until a decision is made as to whether the legislation or action is valid. The Court rules by majority vote. If there is a tie, the presiding judge will cast the deciding vote. 21 The court may decide to partially or entirely annul a law or regulation; these rulings have “absolute binding force.”22 For preliminary issues raised by tribunals, the Court’s ruling is binding on the

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How the Court of Arbitration Operates, Court of Arbitration of Belgium website. Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 15 Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 16 Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 17 Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 18 Procedure before the Court of Arbitration, Court of Arbitration of Belgium website. 19 How the Court of Arbitration Operates, Court of Arbitration of Belgium website. 20 Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 21 Procedure before the Court of Arbitration, Court of Arbitration of Belgium website. 22 Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website.

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Dispute Resolution: Comparative State Practice

tribunal.23 All judgments of the court are legally enforceable, and none are open to appeal.24 The Court’s deliberations are not made public and there is no provision for recording concurring or dissenting opinions.25 The presiding judges announce the judgments of the Court in public sessions in Dutch and French.26 Excerpts of the judgments are printed in a designated publication in all three languages and the full judgments are published in Dutch and French on the website of the court.27 Denmark and Greenland Parties Involved The parties involved in the Ad Hoc Board include the central government in Denmark and its autonomous province of Greenland. Mandate and Operating Powers The Greenland Home Rule Act establishes the relationship between Denmark and its autonomous province of Greenland. The Act provides for the creation of an Ad Hoc Board to resolve jurisdictional conflicts between the central and provincial governments.28 Composition When convened, the Ad Hoc Board consists of two delegates from Denmark, two from Greenland, and three judges from the Danish Supreme Court. The members are nominated from their respective jurisdictions. One of the Supreme Court judges serves as chair of the Board.29 Decision-Making Process The delegates from Denmark and Greenland first try to resolve the dispute and come to an agreement. The members of the Supreme Court are on the Board only to decide the issue if the delegates cannot reach an agreement on
23 24

Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. Jurisdiction of the Court of Arbitration, Court of Arbitration of Belgium website. 25 Procedure before the Court of Arbitration, Court of Arbitration of Belgium website. 26 If a case was instituted in German, the judgment will also be presented to the public in German. Procedure before the Court of Arbitration, Court of Arbitration of Belgium website. 27 Procedure before the Court of Arbitration, Court of Arbitration of Belgium website. 28 Greenland Home Rule Act (1987), Section 18, available at http://www.nanoq.gl/English/The_Home_Rule/The_Home_Rule_Act.aspx. 29 Greenland Home Rule Act (1987), Section 18.

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Dispute Resolution: Comparative State Practice

their own.30 The Danish central government has the authority to suspend a decision of Greenland’s government until the Ad Hoc Board reaches a decision.31 Finland and the Åland Islands Parties Involved The parties involved in the Åland Delegation include the Government of Finland and the Government of the autonomous Åland Islands. Mandate and Operating Powers The Åland Delegation was established in the Act on the Autonomy of Åland as a joint organ of the Finnish and Åland governments.32 The Delegation may review laws passed by the Åland legislature if there is a question regarding the division of powers between the central and Åland governments.33 In addition, it also oversees the transfer of funds from the central government to the Åland Islands.34 The role of the Delegation is somewhat limited, because other mechanisms exist to minimize conflict between the parties. For example, central authorities must obtain the Åland government’s view on any legislative proposals of “special importance” to the Åland Islands.35 Additionally, the Åland government may present proposals on national matters to the central legislature via the central government.36 Composition The Delegation is composed of five members. The Council of State— the cabinet appointed by the President—elects two members, and the legislative assembly of the Åland Islands elects two members. 37 The governor of the Åland Islands, who represents the central government, serves as chair of the Delegation.38 If for some reason the governor is not the chair, the Finnish president appoints a chair after agreement with the speaker of the Åland
30 31

Greenland Home Rule Act (1987), Section 18. Greenland Home Rule Act (1987), Section 18. 32 Act on the Autonomy of Åland, (1951) Section 5, available at www.regione.taa.it/biblioteca/statuti/Aland.pdf. 33 Act on the Autonomy of Åland (1951), Section 56. 34 Act on the Autonomy of Åland (1951), Sections 45, 56. 35 Act on the Autonomy of Åland (1951), Sections 28. 36 Act on the Autonomy of Åland (1951), Sections 22. 37 Act on the Autonomy of Åland (1951), Section 55. 38 Act on the Autonomy of Åland (1951), Section 50.

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Dispute Resolution: Comparative State Practice

Assembly. 39 The Delegation operates in Swedish—the primary language in the Åland Islands.40 Decision-Making Process The Delegation reviews legislation upon request by the central government’s Council of State and its ministries, the Government of the Åland Islands, and the courts.41 Once the Delegation reaches a decision, it forwards it to the Ministry of Justice, which may also write its own opinion. The Ministry then forwards both opinions to the President. After the President receives both opinions, he or she and may annul the legislation, but only after receiving a third opinion from the Supreme Court. The President is not legally bound to rule in accordance with the opinion of the ADR body or that of the Supreme Court. 42 This is a departure from the normal requirement that the President act on the advice of the cabinet. 43 It is argued that this discretion allows the President to be mediator between the central and Åland governments. According to convention, the President will only solicit an opinion from the Supreme Court if the Delegation declares a law to be outside the Åland Assembly’s competence. Also by convention, the President will not annul a law unless the Supreme Court advises that the law exceeds the competence of the Åland Assembly. 44 The final decisions appear in a designated annual publication.45 South Africa Parties Involved The parties involved in the Legislative Mediation Committee include the National Assembly of South Africa and the National Council of Provinces (NCOP). The NCOP represents South Africa’s nine provincial governments.

39 40

Act on the Autonomy of Åland (1951), Section 55. Act on the Autonomy of Åland (1951), Section 36. 41 Act on the Autonomy of Åland (1951), Section 56. 42 Act on the Autonomy of Åland (1951), Section 19. 43 Act on the Autonomy of Åland (1951), Section 58. 44 Yash Ghai, Resolution of Disputes between the Central and Regional Governments: Models in Autonomous Regions, 5 Journal of Chinese and Comparative Law 1, 13 (2001-02). 45 Yash Ghai, Resolution of Disputes between the Central and Regional Governments: Models in Autonomous Regions, 5 Journal of Chinese and Comparative Law 1, 12 (2001-02).

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Mandate & Operating Powers The constitution adopted following the end of apartheid established the Legislative Mediation Committee. 46 The mandate of the Committee is broadly structured so that it may review legislation passed in the National Assembly that “affects the provinces.” 47 The mandate is limited, however, by the specific exclusion of the authority to review “money bills” such as those dealing with taxes, levies, and duties.48 Composition The Committee is composed of eighteen members. The National Assembly selects nine members, and each of the nine provinces selects one member from their delegation to the National Council of Provinces to serve in the Committee. 49 Decision-Making Process Legislation is referred to the Committee when a provincial legislature rejects a bill, passed by the National Assembly, that affects the province.50 The Committee makes a decision based on a majority vote. This majority must include five delegates from the National Assembly and five delegates from the National Council of Provinces (NCOP).51 The Committee may: (1) accept the version of the legislation passed by the National Assembly, (2) accept the version of the legislation passed by the NCOP,52 or (3) suggest a new version of the legislation.53 If the Committee suggests a new version of the legislation, both the National Assembly and the NCOP must vote on and pass the bill for it to be enacted into law. 54 If the Committee approves the legislation offered by either the National Assembly or the NCOP, the bill must be referred back to the National Council and /or Assembly to receive final passage. All bills must then be submitted to the President for assent.55 If the Committee is unable to reach a decision within
46

Constitution of the Republic of South Africa (1996), Article 78, available at http://www.info.gov.za/documents/constitution/index.htm [hereinafter Constitution of South Africa]. 47 Constitution of South Africa, Article 76. 48 Constitution of South Africa, Articles 76, 77. 49 Constitution of South Africa, Article 78. 50 Constitution of South Africa, Article 76. 51 Constitution of South Africa, Article 78. 52 If the NCOP passes an amended bill, it must then go to the National Assembly. If the National Assembly does not pass the amended bill, it goes to the Mediation Committee. Constitution of South Africa (1996), Article 76. 53 Constitution of South Africa, Article 78. 54 Constitution of South Africa, Article 76. 55 Constitution of South Africa, Article 76.

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Dispute Resolution: Comparative State Practice

thirty days, a piece of legislation can only be passed if two-thirds of the National Assembly votes to approve it. 56 Conclusion Alternative dispute resolution (ADR) bodies are formed as mechanisms to resolve governance disputes between central and provincial governments. The mandate, composition, and decision-making process often vary among ADR bodies. The Court of Arbitration in Belgium; the Ad Hoc Board in Denmark; the Åland Delegation in Finland; and the Legislative Mediation Committee in South Africa highlight the variety of ways ADR bodies may be designed and incorporated as a mechanism to resolve disputes relating to devolution of power. When ADR bodies are perceived as impartial and credible, they may assist in enhancing relations between the central and provincial governments.

56

Constitution of South Africa, Article 76.

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