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Inaugural Lecture Maurits Barendrecht | Presentation


Published on

27 September 2011

Inaugural Lecture Maurits Barendrecht
HiiL's Visiting Professor on the Rule of Law


Published in: News & Politics
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Inaugural Lecture Maurits Barendrecht | Presentation

  1. 1. Inaugural lectureCourts, Competitionand InnovationMaurits BarendrechtHiiL – Hague Visiting Professor on the Rule of Law• Professor of Private Law at Tilburg University, TISCO• Chairman Executive Board of Innovating Justice
  2. 2. CourtsCompetitionInnovation
  3. 3. The Third BranchCharles Louis de Secondat,Baron de La Brède et deMontesquieu(Château La Brède, 18 January 1689 –Paris, 10 February 1755)
  4. 4. The Third Party 1999• ‘The triad, two disputants and a dispute resolver, is a universal, if undertheorized, phenomenon.• It is a ‘primal technique of organizing social authority and, therefore, of governing. Alec Stone Sweet, Political• Triads serve ‘to perpetuate the dyad, Scientist at given changes in the preferences or Yale identities of the two parties.• The triadic entity responds to, and is a crucial agent of, social change.’
  5. 5. Trilateral GovernanceThe third party is needed if:• The relationship requires specific Oliver Williamson, investments Nobel Prize Economics 2009• It is impossible to set precise rules because of uncertain future• Opportunistic behavior (stealing, cheating and violence) is possible
  6. 6. Courts help people to decide in their most difficult moments• Who gets what if relationships break down• What should happen in unexpected and unclear situations• Remedies when somebody cheated or used violence
  7. 7. Problems in The Netherlands | yearly30.000 new divorces; 100.000 terminationsof employment by employer; 700 peoplekilled in road traffic accident; 20.000personal injuries in road traffic accidents;1.000.000 unpaid debts for whichenforcement is sought; 10.000bankruptcies; 1.700.000 conflicts related topurchase of products or services;15.000 asylum seekers; 180.000 buildingpermits200 homicides; 170.000 victims ofviolence; 150.000 instances of burglary
  8. 8. In countries torn by civil war People reporting effects in immediate family: • 20% someone displaced • 15% imprisoned • 10% tortured • 15% home looted • 10% deaths Worldwide: 4 new civil wars each year and 50.000 – 200.000 battle deaths per year Conflict, Security and Development, World Development Report 2011
  9. 9. It is hard to make the triangle work ... Moet nog worden aangeschaft
  10. 10. Their needs and their hopes …
  11. 11. Making defendants participate …
  12. 12. Supervising the interaction
  13. 13. Supervision• Voice and participation• Sorting out what happened (fact-finding)• Negotiation• Growing towards an acceptable solution• Fit with earlier solutions (laws and case law)• Deciding what parties cannot decide
  14. 14. Being there
  15. 15. The miracle …By being there, third parties provide:• Shadow of law• Space for voice, participation, dialogue and conciliation• Option of participation by public• Threat of an imposed solution and sanction
  16. 16. The art of being there …• Prepared to intervene• Fast … (available just in time)• Known to work towards effective solutions• Being predictable• Not costly90% of problems solved fairly by parties
  17. 17. The Void: Justice Sector Analysis• Sarat and Grossman 1975: Problems in Mobilization of Adjudication• Landes and Posner 1979: Submission problem• Botero et al. 2003 and Cabrillo et al. 2008: Insufficient incentives on courts to offer better services• Carothers 2006 and Fukuyama 2011: Rule of law and accountability very hard to implement• Hadfield 2008: Regulation of legal profession blocks innovation
  18. 18. What About Courts?• Third parties and thus courts always ermerge. We need them in our relationships.• Fascinating triads. Three complex relationships at the sides of the triangle. Provide miracles by being there.• Difficult to run. Two clients each want something else. Judges are isolated from incentives. Have to motivate themselves and each other.
  19. 19. CourtsCompetitionInnovation
  20. 20. Considerthesesituations…
  21. 21. ‘High workloads areunlikely to be causedby a worldwideincrease in conflictsbetween people.’
  22. 22. Learning from competition• Being just in time• Focus on substantive justice not hindered by procedural and bureaucratic issues• Costs of access to justice• Making settlement and plea bargaining more fair• A need for informational justice• Impartiality and independence can be traded• Local justice, in the community, seems to work• Specialisation works
  23. 23. An entrepreneurial judge responding to demand for justice?Baltasar Garzón: Investigating Drug Cartels, Marbella mayor andAtletico Madrid owner Gil, Pinochet, ETA crimes, Franco time atrocities,Guantanamo Bay
  24. 24. Entrepreneurial at times ……
  25. 25. Forum shopping …• Part of the litigation game (Eisenberg and Clermont 2002)• Entrepreneurial judges and other 3rd parties• Create new options for complainants• So access to justice is improved
  26. 26. Courts and Competition• State courts compete with other third parties.• Courts can learn from them. Competition shows their strengths and their weaknesses.• Individuals and groups seeking access to justice vote with their feet. Forum shopping cannot be stopped. New third party mechanisms will be created by social entrepreneurs to satisfy demand for accountability. This should be welcomed.
  27. 27. CourtsCompetitionInnovation
  28. 28. ‘If courts sit still, they may graduallybecome less relevant.’
  29. 29. Responses to more demand• Scenario 1: A threat? Production targets, but no realistic option to make services better and more affordable • More stressed judges, more errors • Clients wait, powerful defendants win, clients walk away • Courts criticized, judges ask to respect courts• Scenario 2: Signal courts are valuable? Innovate to serve clients better at lower costs. More willingness to pay (users, governments) • Judges motivated • Clients happy, more respect for courts • Budgets more secure and more independence
  30. 30. ‘An interesting innovation making its waythrough courts worldwide is known asHot Tubbing.’
  31. 31. No easy answers: 27 Factors havebeen found that foster Innovation• Generating Possibilities 9 factors• Developing Innovations 8 factors• Replicating and Scaling Up 5 factors• Analyzing and Learning 5 factors Experience from Public Sector Innovation, applied to Justice Sector, combined with international literature on Court Reform, Procedural Reform
  32. 32. Innovating Justice at local court in Nicaragua
  33. 33. A judicial facilitator:Member of judge team, mediates,informs, helps with documents
  34. 34. Generating possibilities1. Vision and commitment from government2. Focus on users, frontline staff and middle managers3. Diversity4. Scanning of horizons and margins: a process need5. Developing capacity for creative thinking6. Working backwards from outcome goals: terms of reference7. Creating time and space8. Allow breaking the rules9. Competition: the submission problem and regulation of legal services
  35. 35. Winner Innovating Justice Awards 2011Service of Judicial Facilitators Pedro Vuskovic Céspedes Coordinator of the Inter-American Program of Judicial Facilitators Organisation of American States
  36. 36. Developing innovations10. Appropriate selection of fruitful ideas: simplifying procedures11. Adequate risk management12. Fostering innovation champions13. Creating incubating space14. Involving incubators and public-private partnerships15. Introduce modeling, build prototypes16. Better funding for early development17. Involving end users at all stages
  37. 37. Justice InnovatorsModern Investigative Techniques | Karen Tse, Founder and CEO International Bridges toJustice | Bahman Eslamboly, President LawGuru Programa Interamericanode Facilitadores Judiciales | Pedro Vuskovic Céspedes Coordinator of the Inter-American Program of Judicial Facilitators Organization of American States TheeBay/PayPal Resolution Center | Colin Rule, CEO I Paid A Bribe | RameshRamanathan, Co-founder Janaagraha Centre for Citizenship and Democracy E-Court, the first online private court | Henriette Nakad, Founder E-Court FoundationWeagree | Willem Wiggers, Founder Weagree B.V. The IMI Inter-Cultural MediatorCompetency Certification | Inter-Cultural Taskforce, IMI Use of Medical Experts to SecureRelease from Pretrial Detention in Russia | Dmitry Dinze, Humanitarian Action
  38. 38. Nominee Innovating Justice Awards 2011The eBay/PayPal Resolution Center Colin Rule CEO
  39. 39. Court architecture or web design?
  40. 40. Replicating and scaling up18. Improved incentives for individuals and teams19. Improved incentives for organisations: a sound model for financing and monitoring courts20. Scaling up and disruptive innovation21. Specialise and beware of early standardisation22. Change management
  41. 41. Analysing and learning23. Metrics for success24. Real time learning: change immediately if something does not work25. Peer and user involvement in feed-back26. Double loop learning27. Test from variety of perspectives
  42. 42. A methodology to measure effects and to compareusers’ experiences with third party procedures
  43. 43. What court leaderscan do …
  44. 44. • Trilateral governance in our most difficult moments Professionals, relationship doctors, miracle providers rather than production workers• Allow to break rules and develop working methods Focus on what works, what is fair, informed by rules• Better incentives and sound system for financing courts | Create competition and choice, terms of reference, surveys of participants, monitoring whether interventions work• Create space for judges | 10% of time, 3% of budget, recognition, partnerships• Invite judges to an open, nurturing, knowledgeable, competitive environment, fascinated by courts