About Lisa Toohey

Lisa Toohey is a Professor at the Newcastle Law School in New South Wales Australia. Her full profile is online at www.newcastle.edu.au/profile/lisa-toohey

A Watershed for Arbitration? – entry into force of the Mauritius Convention

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On 18 October 2017, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the “Mauritius Convention on Transparency”) will enter into force.     Current signatories include Australia as well as many of Australia’s major European investment partners, as well as the United States.

What is the Mauritius Convention?

The Mauritius Convention, as its name suggests, is designed to ensure transparency in the investor-state arbitration process (not any other types of arbitration, such as international commercial arbitration).

The Convention (or more accurately, the UNICITRAL Rules adopted by the convention) is ground-breaking because it represents a major shift away from the traditional model of arbitration being a private, confidential process.    Like most forms of arbitration, investor-state arbitration has previously been undertaken predominately in private, with no guarantees of public access to information about the dispute, the arguments, or even the award and reasons.   While this may be understandable in the case of private arbitration between commercial parties, the nature of investor state arbitration is different.    Because of the nature of the dispute – a disagreement about the treatment of a foreign investor by a host state –  there are generally important issues of public policy at stake.

For example, many Australians first heard of investor-state arbitration following an ultimately unsuccessful claim against Australia by Philip Morris (Asia) via an investment agreement between Australia and Hong Kong, seeking compensation for the impact of  Australia’s plain label packaging laws.   In other cases, investor-state disputes have arisen as a result of environmental measures, public health measures, and even anti-discrimination provisions in post-Apartheid South Africa.   As a result, investor-state dispute resolution has received quite a lot of negative publicity, and many states are retreating from the system of investor-state arbitration by terminating international agreements.

The Convention operates by giving ‘teeth’ to the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.  These Rules, although they do contain exceptions, provide three main types of transparency in arbitrations to which they apply:

  • Open hearings:  Hearings are to be made public, with the arbitral tribunal to make arrangements to facilitate public access to hearings.
  • Amicus curiae/third party submissions:  formalising  the right of arbitral tribunals to receive relevant amicus curiae and other third party submissions.
  • Publication:  Submissions and awards must be made public.

 

When does it apply to Australia?

The entry into force of the Mauritius Convention has taken place pursuant to Article 9 of the Convention – six months after the ratification of three signatories.    However at the present time, the convention only applies to disputes between Canada, Mauritius and Switzerland.  In Australia, implementing legislation is currently before Parliament. However, in time, most signatories can be expected to complete the ratification process according to their domestic laws.  However even prior to ratification, parties to an Investor-State arbitration can still agree to the voluntary application of the provisions.

 

A Watershed for Arbitration?

To those used to the context of domestic litigation, these sound like trivial changes, but they represent a great leap forward for transparency in investor state dispute settlement.  Some commentators have even considered that the convention may  lead to a change of culture in relation to arbitration more broadly.

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China’s Diversified Dispute Resolution System by Dr Bin Li

Image: Supreme People’s Court, China.  Image from Wikimedia Commons

Today’s post is a piece by Dr Bin Li,  a lecturer at Newcastle Law School Australia.

The large population of China presents unique challenges for access to justice.  With a population approaching 1.4 billion people, there are around 11.5 million civil cases per year, according to the statistics of the Supreme People’s Court of China (‘SPCC’).  [1]

The idea of diversified dispute resolution ( ‘DDR’) was first put forward in 2004 by the SPCC as part of a parcel of reforms designed to advance access to justice[2], with the SPCC urging lower-level Chinese courts (People’s Courts) to develop capacity in mediation and give greater recognition to arbitration.  Further, the Supreme People’s Court called for collaboration and joint development of the DDR model with other entities and organisations external to the people’s courts.

At the time of these announcements, the SPCC had not provided a clear definition of the concept of DDR.  This was subsequently articulated in 2014 by the Fourth Assembly of the Eighteenth Central Committee of China Community Party in its Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward,.  In that document, the  DDR was defined as an organic and coordinated dispute resolution system comprising mediation, arbitration, administrative adjudication, administrative review, litigation and other processes.

Arguably, therefore, DDR has some similarities with the systems of alternative dispute resolution  as it used in Western courts, but also some significant differences.   They have in common the prominent use of mediation as key process, and recognition of the role of arbitration.  However, DDR has a more expansive definition in that it encompasses other dispute resolution processes, including administrative review; the second and a more significantly, is that DDR is intended to operate as a coordinated and court-controlled system.

Thus,  the creation of the  DDR system has become an integrated part of judicial reform in China and an important task for a range of Chinese government entities at provincial and national level, including administrative departments for justice of local governments, which  regulate  the system of people’s mediation[3], along with the Supreme People’s Court a nominated by the Chinese Communist Party to take the lead in this process.

From 2014 onwards, the SPCC has actively encouraged lower level people’s courts to speed up their development of the DDR system,  and People’s courts have responded with measures such as the implementation of mandatory mediation programs prior to disputes being admitted to the litigation process. This is a very encouraging news for mediation in China as in the past, people’s courts had only used mediation during the litigation process rather than prior to litigation. Now the practice is that before the dispute is accepted by people’s courts to litigation, the people’s courts will aim to solve it before proceeding to litigation.

To achieve such an aim, the people’s courts have established  Coordination Centres for Mediation and Litigation (“CCML”). During this pre-litigation mediation process, CCMLs usually invite people’s mediators to participate and help with the settlement, and when acting in this capacity, these mediators are known by a term that means ‘specially invited mediators’.  This distinction is interesting as  People’s mediation is separate from mediation provided by people’s courts during the litigation process and it is provided and undertaken by administrative units of departments for justice at provincial level. in .  Therefore, by inviting people’s mediators to the pre-litigation mediation process conducted by the CCML, the people’s courts have started to explore the way where mediation can be more utilised while the relationship between mediation and litigation can be carefully dealt with.

Challenges in Implementation

There are, however, some barriers for the people’s courts to get over in order that the completion of DDR can be achieved.

First and foremost, there is an absence of domestic legislation defining the leadership role of SPCC. The aspiration is to have As its definition suggests, the DDR is an organic system focusing on the coordination of various dispute resolution approaches. It is therefore important to have a lead agency to oversee and coordinate reforms. In this respect, though SPCC has been nominated by CCP to take the lead in the reform, there is no legislation confirming such a leading role taken by the SPCC. The subsequent problem would be how SPCC could smoothly coordinate the reform where the functions of government are involved, such as people’s mediation.

The second difficulty is related to the unsuccessful practice of people’s mediation. In China, people’s mediation is a process where a people’s mediation commission persuades the parties concerned to a dispute into reaching a mediation agreement on the basis of equal negotiation and free will and thus solves the dispute between them. Also, according to the law, Ministry of Justice is responsible for people’s mediation nationally, with provincial justice departments taking responsibility for guiding the people’s mediation within their respective administrative regions. The 2010 People’s Mediation Law was designed to make mediation a key process for the resolution of civil disputes, and to ameliorate the workload of the  people’s courts. However, evidence shows that people’s mediation has not worked as well as expected, which appear to be due to a range of factors, including the public having little interest and confidence in mediation.  For example, there is no accreditation system for people’s mediators whose quality therefore cannot be guaranteed. [4] In addition, one cultural factor possibly undermining the public’s confidence is that Chinese people would rather trust judges than the people’s mediators who they don’t know at all.

Thirdly, the use of CCMLs presents particular challenges. In people’s courts,  judge are usually involved by guiding the mediator’s work. However this involvement presents particular issues if the dispute is not resolved through mediation.

The first option would be for the judge involving in the previous mediation to hear and decide. In this case, it may be possible for the judge to exert pressure on the parties to settle their disputes in mediation. In addition, since the judge has already known the case, it is questionable whether that judge is still an appropriate person to try the case. The second option is that the dispute will be registered as a case and resolved by a different judge, which will then prolong the resolution of the dispute.

This piece has presented a short perspective of the opportunities and challenges in creating a DDR system in China.   There are interesting parallels between the experience in China, but also unique challenges.   In China, as elsewhere, the key to making this court-led system effective is to identify how the DDR can be effectively integrated into the workflow and procedures of already busy courts.  In this respect, a nationally accredited system for people’s mediators will help establish the confidence of the public. It is also vital for SPCC to lay down some specific rules on this court-led reform, such as whether the judge already involving in the pre-litigation mediation is still eligible for hearing the case provided that the dispute has not been resolved by mediation. A related question also needs to be answered being whether the information disclosed in mediation can be used in the subsequent litigation. So far people’s courts in different provinces could have different answers to these two questions and it is the right place for SPCC to step in.

[1] https://supremepeoplescourtmonitor.com/tag/china-court-statistics-2015/

[2] Notice of the Supreme People’s Court on Issuing the Second Five-Year Reform Outline for the People’s Courts (2004-2008).

[3]http://www.cspil.org/Uploadfiles/attachment/Laws%20and%20Regulations/[en]guojifalvwenjian/PeoplesMediationLawofthePeoplesRepublicofChina.pdf.

[4] Art. 14 of People’s Mediation Law only provides that the people’s mediators shall be adult citizens with ‘certain level of culture, policies and legal knowledge’.

Apology in Victim Offender Mediation

This is a guest post by Professor Mandeep K Dhami, PhD. who is Professor in Decision Psychology at Middlesex University, London. Her research focusses on questions of human judgment and decision-making, risk perception and risk taking, and understanding and communicating uncertainty.

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. Dhami’s (2015a) study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.

 

It is stated that full apologies comprise at least five specific components (i.e., admitting responsibility, acknowledging harm, expressing remorse, offering reparation, and promising forbearance). However, full apologies are not commonplace, and wrongdoers are more likely to offer a partial apology. Dhami (2017) conducted an empirical study of how people perceive a partial apology. Eighty young people were asked to rate the extent to which a partial apology comprising one component implied each of the four remaining (uncommunicated) components of apology. Participants believed that when someone offers a partial apology, that person also implies, to the same extent, the remaining (uncommunicated) components of apology (either combined or separately). A partial apology involving either an acknowledgment of harm or offer of reparation implied to a lesser extent the promise of forbearance than some other components i.e., the admission of responsibility and the expression of remorse. In addition, a partial apology involving the expression of remorse or promise of forbearance implied to a greater extent the admission of responsibility compared to some other components i.e., the acknowledgment of harm and the offer of reparation.

 

Past research on VoM has highlighted the importance of apology for both victims and offenders and the prevalence of apology during the mediation process. Dhami (2012) examined the nature of the apologies that are offered during mediation, as well as the individual-, case-, and mediation-level factors that can affect the offer and acceptance of apology. In addition, the study measured the implications that the offer and acceptance of apology can have on satisfaction with the mediation outcome. The study involved a content analysis of 57 records of mediations occurring between 2008 and 2010 at a UK mediation centre. Perpetrators said ‘‘I’m sorry’’ in over one-third of cases, and full apologies were offered in nearly one-fifth of cases. Apologies were accepted in over 90% of cases, although forgiveness was much less common. The offer of apology was most closely associated with the type of incident/offence, and number of previous mediations in a case. There was also some support for the relationship between the offer of apology and victim age, perpetrator gender, formal sanction, and the number of participants attending the mediation meeting. None of the factors studied were associated with the acceptance of apology. The offer of apology was associated with satisfaction with the mediation outcome, and in all of the cases where the apology was accepted, the victim was satisfied with the mediation outcome.

Finally, the ‘apology-acceptance’ script that may prevail during the victim–offender mediation process suggests that victims may feel obliged or pressured to accept an offender’s offer of an apology. Violations of this expectation in terms of rejection of an apology or no recognition of it may influence the outcomes of mediation in several ways. Dhami (2015b) conducted two experiments examining the effects of a victim’s response to an offender’s offer of a full apology on offenders’ perceptions of the victim’s response, emotional reactions, perceptions of the victim, attitudes towards the dispute and attitudes towards mediation. Experiment 1 compared the effects of a rejection, acceptance and no recognition of an apology, and Experiment 2 further investigated the effects of an acceptance versus no recognition of an apology. It was found that offenders who had their apology rejected considered the victim’s response as least appropriate and were least satisfied by it. ‘Rejected’ offenders felt more anger towards the victim and had more negative impressions of the victim. Offenders who had their apology accepted felt more guilt and shame. They were, however, also more willing to reach an agreement and were more likely to perceive the conflict as being resolved. ‘Accepted’ offenders were also more likely to participate in mediation in the future and more willing to recommend mediation to others. The research also demonstrated that no recognition of an apology has adverse effects similar to a rejection of an apology.

 

References

Dhami, M. K. (2017). An empirical note on perceptions of partial apologies. Onati Socio-Legal Series, 7, 408-420.

Dhami, M. K. (2015a). Apology in victim-offender mediation. Contemporary Justice Review. DOI: 10.1080/10282580.2015.1101686

Dhami, M. K. (2015b). Effects of victims’ response to apology in victim-offender mediation. European Journal of Social Psychology. DOI: 10.1002/ejsp.2145

Dhami, M. K. (2012). Offer and acceptance of apology in victim-offender mediation. Critical Criminology: An International Journal, 20, 45-60.

 

Conclusion of Conciliation between Timor Leste and Australia

On 5 September 2017, the Permanent Court of Arbitration announced that there has been an agreement reached by conciliation between Timor Leste and Australia.  The dispute concerns the delimitation of maritime boundaries between Australia and East Timor, and is subject to the United Nations Convention on the Law of the Sea (UNCLOS).  There is enormous practical, commercial significance to the dispute due to the presence of oil and gas in the area.

There is often confusion surrounding the terms ‘mediation’ and ‘conciliation’. In some circles, the terms are considered to be synonyms, and used interchangeably – and most dictionary definitions will follow this approach. Similarly the Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) refers in Article 47 to a hybrid conciliation/arbitration process, but this is commonly described and referred to as arb-med, and their Online Arbitration Rules refer in Article 37 to mediation.

In other contexts, both mediation and conciliation are considered to have a common process, but differ in the role of the third party facilitator. Here, a mediator would generally be less interventionist than a conciliator, and would not necessarily have legal qualifications in the subject matter of the dispute. The role of the conciliator, by contrast, is more advisory or evaluative than facilitative in nature. In the Australian context, for example, conciliation usually takes place within a statutory framework where a government appointed conciliator attempts to facilitate discussion and settlement between disputants, using the conciliator’s subject-matter expertise in the legal framework for the dispute.[1]

In public international law, good offices, mediation, and conciliation are often presented as being on a continuum of less to more formality. JG Merrills, considered a leading authority in state-state dispute settlement, states that the distinction between mediation an conciliation is that “a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations [of the type found in conciliation].”[2] He characterises conciliation as a method that “puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration.”[3] This then contemplates a third party taking control of the investigation of a dispute, and proposing solutions that the parties may then wish to accept or reject, rather than a third party facilitating a search for common ground between the parties, or assisting the parties to reach their own negotiated terms of settlement.

The conciliation between Timor Leste and Australia very much follows the model set out by Merrils.   The process was undertaken by a five-person panel (known as a Commission),  chaired by Danish Ambassador Peter Taksøe-Jensen, who was also a former Assistant-Secretary General for Legal Affairs of the United Nations.  The rest of the panel was comprised of  Dr. Rosalie Balkin,  an Australian national who is former Director of Legal Affairs and External Relations at the International Maritime Organization, Judge Abdul G. Koroma, a Sierra Leone national and retired judge of the International Court of Justice,  Professor Donald McRae, a dual national of Australia and New Zealand and currently a Professor of Law, and Judge Rüdiger Wolfrum, a German national and member of the International Tribunal for the Law of the Sea. The composition of the panel, and the vast range of experience in maritime boundary disputes highlights the importance of their role as content experts.     The Australian Government has released a basic fact sheet on the way in which the process operates.

The Permanent Court of Arbitration has offered a fascinating insight in to the conciliation processes by making public a video of the opening of the conciliation between Australia and East Timor. The video is online here and is worth watching.

This conciliation also highlights the role of symbolism in international relations.  As the Chair of the Commission noted, the date of the agreement was 30 August – which also represents the anniversary of Timor Leste’s independence referendum, which was held on 30 August in 1999.  The conciliation is also significant as it is the first use of the conciliation procedures of UNCLOS, and states around the Asian region in particular will be closely observing the process and the ultimate resolution.   In this regard, Timor Leste’s Agent in the proceedings, Minister Agio Pereira, commented in the press release:

With our joint success at resolving our dispute through this conciliation process, Timor-Leste and Australia hope to have set a positive example for the international community at large.

As the press release explains, the details of the settlement are still being negotiated, and will remain confidential, as will the content of the conciliation itself.  The final agreement is expected to be made public in October 2017.

[1] See, for example, the Conciliation Process Model of the Australian Administrative Appeals Tribunal – http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/concilication-process-model

[2] JG Merrills, International Dispute Settlement (5th ed) (2011) at 26.

[3] Ibid, at 58.

Law, Justice and Evidence-based reform – Symposium at the University of Newcastle

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Photo Credit: Christoph Scholz Flickr via Compfight cc

 

The evidence-based movement has had a transformative influence on  research and practice in numerous disciplines, including healthcare,  education, management and policy.

In contrast,  law lags behind. Law, in many respects, is still ‘eminence based’,  relying on the opinions of authority figures, rather‘evidence-based’,  which focusses instead on robust and thorough evidence as a basis for interventions.  There is too often a  gulf between academic research and the reality of lawmaking and legal  practice.  And yet, as those in the academy are well aware, impact is increasingly used as an assessment of the success of research. Empirical research, along with other forms of evidence, plays an important role in  reinforcing the value  that researchers can add to the day-to-day operation of  the law.

The evidence-based movement in law is concerned with improving research and evaluation in all areas of law’s reach, including legal education, legal practice, law-making and judging.   Drawing on evidence-based definitions from other fields,  evidence-based law and practice urges the production of rigorous  research evidence and incorporation of that evidence into debate about  legal doctrine, legislation and professional practices, analysis of the  impacts of law in society, and proposals for reforms in law and  practice.

 

Being evidence-based means that law-and policy-making, and professional practices, are grounded in rigorous evidence of what is effective in achieving desired outcomes.   At the heart of an evidenced-based approach is empirical research,  a relatively under-used (but growing) approach for legal academia.   In this respect, the field of dispute resolution, and civil procedure / civil justice more broadly, leads the way in terms of the breadth of evidence based approaches currently used by academics.   Some of these have been  showcased on this blog, and presented at the recent Non-Adversarial Justice Conference, hosted in Sydney by the AIJA.

However, not all aspects of an evidence-based approach translate naturally from the sciences to the legal context.  For example, the sciences focus on randomised controlled trials, and the systematic review of randomised controlled trials as ‘level II’ and ‘level 1’ (higher order) evidence respectively.   Law as a discipline of course is not well suited to randomised controlled trials, and even less well suited to detailed direct comparison of data across jurisdictions.   Many questions remain as to how to better adapt these research paradigms to the legal context.

To advance the development of the evidenced-based law movement in Australia, the University of Newcastle Law School is holding a one day Symposium on Monday 22 May 2017.

The Symposium will provide a forum for researchers, practitioners and policy-makers to discuss, advance and critique the concept of using evidence to inform justice decisions. The Symposium will open with a keynote address, “Reforming the Justice System: The Alchemy of Data, Leadership and Synergy”, delivered by international expert Justice Rebecca Love Kourlis. Justice Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System (IAALS) and will discuss their robust approaches to original empirical legal research, innovative models for working with stakeholders, and strategies for measuring outcomes and impacts.

The full draft program can be viewed here and you can register your attendance at the  UoN Online Shop .  Attendees are also invited to an optional dinner following the Symposium. Discount accommodation rates will be available at the Crowne Plaza Hotel Honeysuckle.

For more information, please contact Briony Johnston:
briony.johnston@newcastle.edu.au

The Top Six ways Twitter can help your research

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 Photo Credit: Alan O’Rourke via Compfight (Creative Commons Licence 2.0)

When I initially started using twitter three ago (tweeting as TooheyL as well as one of a group on the ADR Research Network’s twitter account), I worried it might be nothing but a procrastination technique.   While this can sometimes be true, more importantly I have found that tweeting has been beneficial for my research.   So, here I’d like to present my top 6 ways that Twitter can help your research:

  1. It makes you write: Experts such as Hugh Kearns and Maria Gardener make it clear that successful researchers have writing as a feature of your daily life, not something to be done on ‘research days’. Interestingly, what you write is not nearly as important as the fact that you are putting words on a page – the hard part is beginning.   Writing two or three tweets first thing in the morning is an easy way to launch yourself into a more substantial piece straight after.   If you commit yourself to just 250 words a day, that’s 5000 words a month – in many disciplines the length of a short article.
  1. It makes you bold: Many researchers (myself included) shirk away from stating their own opinion. They tend to bury their opinions in footnotes, qualifiers, and complicated frameworks.   Twitter, because it is so short, needs to be direct, and you need to be bold.   I promise that boldness will transfer into your writing, with positive results.
  1. It adds to the impact of your research: Hashtags are a great way to alert new audiences to your research and create a buzz around workshops, conferences, and publications. For example, I recently tweeted about my colleague’s book launch, and you can see in the statistics on who saw and engaged with that single tweet.   Had I been a little more succinct (see point #4 below!) I could also have added a hyperlink to the publisher.Twitter is also a very effective means to drive traffic to your blog post.   For example, 90% of the referrals to our blog come from tweets and retweets.   It is very easy to set up new blog posts to be automatically tweeted.

    Twitter can help you demonstrate your research impact – an increasingly essential for academics across the world. Altmetrics are an increasingly important metric that tracks impact across a range of media, and show your impact on the world beyond other academic publications.

  1. It makes you succinct.   A tweet can only consist of 140 characters, fewer if you include a picture or hyperlink. (Pictures are a great addition to a tweet, and greatly increase the attention your tweet receives). With every 140 character message you compose, you are learning to contract your thoughts down to their essence. This is an exercise in discipline that flows through to your academic writing
  1. It keeps you current: Strategically following media outlets, members of parliament, NGOs, international institutions and well-connected academics mean you are at the cutting edge of news stories, current controversies, and major developments. This is especially helpful to know when to submit op-ed pieces for public outlets, such as newspapers or the Conversation.
  1. It’s great networking: Twitter can connect you with academics in your field all around the world. Rather than just following others, you have the chance to RT (reply) to tweets and engage in mini-discussions. This is especially useful if you are flying solo in your field at your own institution.   When you do travel, it’s easier to reach out to someone with whom you’re connected on Twitter, to met up face-to-face.  Introverts can use Twitter to their advantage by searching for event hashtags and keywords, and engage with conference speakers before the conference begins.

If you’re now convinced that tweeting is a great idea, there is a useful primer on how to use twitter for academic purposes on the blog of the Online Academic.

Symbolism and Justice: The South African Constitutional Court

The design and art of a courthouse communicates a great deal about the culture and values of the institution contained within it.  Last month I had the incredible opportunity to visit the South African Constitutional Court in Johannesburg – an institution that is itself a potent symbol of the country’s attempts to move forward in the aftermath of the apartheid era.

The design of a place of justice cannot repair the harm to South African society that was brought about by apartheid, but it does serve as a symbol of restorative justice – and a deliberate attempt to make all South Africans feel more welcome in a government building.  The design was chosen after a public competition, with the winning, young South African architects designing the building inspired by the concept of ‘justice under a tree’.  This is reflected in the physical design of the building and pays homage to traditional dispute resolution processes used by the people of South Africa.

The website for the Court explains the way in which the architecture was very deliberately designed to be inclusive as well as symbolic:

The Constitutional Court’s new home was born of a remarkable and uniquely inclusive process – one that resulted in a public building like no other. This structure, South Africa’s first major post-apartheid government building, was designed to embody the openness and transparency called for by the Constitution itself.

The building is noted for its transparency and entrancing volumes. In contrast to most courts, it is welcoming rather than forbidding, filled with sparkle and warmth. It has no marble cladding or wood panelling, but has come to be admired for its graceful proportions. And the principal materials – timber, concrete, steel, glass and black slate – infuse the court with an African feel.

Below are some of my photos with captions describing the architectural and artistic elements of the Court:

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Constitutional Hill sits on the site of the old fort and central prison dating back to the colonial era in the late 1800s.  Two prison museums  explain the harsh conditions of everyday life and the arbitrary laws that led to the arrest of thousands, including Ghandi and Mandela.

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  Entrance to the grounds are through the original prison doors, with the old prison windows visible.  

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These are the very large carved wooden doors that are the entrance to the court building itself.  They stand about eight meters high

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Engraved in the doors are depictions in words and sign language of the 27 rights contained in the South African Bill of Rights. There are Braille carvings on the door handles.

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Another view showing the seating of the public compared with the judges.  You can also see here the brick walls of the court room, which were salvaged from the prison that stood on the site of the court.  Reminders of South Africa’s political past are visible everywhere.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I was particularly intrigued by the font.  This was specially commissioned for the Court, and designed to be different from the traditional ‘official’ fonts used in government and legal documents.  The photo on the left shows the name of the building in all the languages of South Africa.

For an interesting piece on Australian court design, and engaging principles of therapeutic and restorative justice, see this article by Professor Graham Brawn.