Future of ADR in Environmental and Constitutional Law in...

Future of ADR in Environmental and Constitutional Law in Japan

Yuichiro Tsuji Aug 6 Bangkok,

Thailand Ａｔ JTI

Yuichiro Tsuji For Thailand Judiciary in Aug 6 2008

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What is ADR? • Alternative Dispute Resolution is a

measure that allows an impartial third party to intervene in a dispute for a settlement outside the formal proceeding in the court.

• Consumer protection, IP, E-commerce, and environmental pollution


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Over-simplified theory • What is democracy? • Students learn “Democracy is for

by of the people.” Lincoln • Marketplace of ideas in the Diet. • The truth is found in the economic

market. • The law (truth) is a crystallization

of work deliberated by the interest groups.

• <= John Hart Ely, Matsui Yuichiro Tsuji For Thailand

Judiciary in Aug 6 2008 3

Wine & Water • For 100 years anniversary, the villagers poured one

glass of wine into the barrel that was put in the center of the plaza.

• But…villagers poured a cup of water bcs they think nobody watch them

• Democracy is of the people, by the people For the people and for the people?


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http://images.google.co.th/imgres?imgurl=http://www.berwickacademy.org/lincoln/lincoln_seated.jpg&imgrefurl=http://www.berwickacademy.org/lincoln/lincoln.htm&h=323&w=280&sz=56&hl=th&start=5&um=1&tbnid=OjBnUw3uefcoeM:&tbnh=118&tbnw=102&prev=/images%3Fq%3Dlincoln%26um%3D1%26hl%3Dth%26rlz%3D1T4RNWN_enTH286%26sa%3DN

Arrow’s Paradox • The person next to you smile, you happy, he/she cries you

unhappy • Majority voting does not reach the best statute. • A) Green, Red, White • B) White, Green, Red • C) Red, White, Green • People change their attitude by seeing other’s responses. • Legislature is not bad, but imperfect branch. We need

judges

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A law should be for all of the people..but • =>The legislation for better environment is a

public goods; Clean air, sunshine, national defense

• But…Politics in reality=>Free riders in the Diet. Interest groups and “Rent-seeking”


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Separation of Powers


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1The Diet (Legislative branch)

3The Cabinet (Executive branch) 2The Courts(Judicial branch)


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Interest groups

Ｄｉｅｔ

Students learn that the courts intervene ONLY when the freedom of expression and right to vote are infringed…but…. How about Environmental right !? You need Diet !?

• The political process is a serious competition among interest groups.

• Outside the Gov. & Inside the Gov. • Politicians sometimes work for re-election,

future generation, and prosperity. • Legislators are not bad, just incomplete • This explanation is better for Japan than

oversimplified political theory bcs Japan has pursued its commercial development and ignored environment.


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Environmental protecti

on

Why we need this explanation? Japanese environmental regulation


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Economic developme

nt

How about courts ? Japan Reform Commission in 1999

• 1) Japanese are subject of the government, not autonomous independent citizen.

• Government is Shogunate • The Court was NOT a vehicle for resolution

of disputes. •


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• 2) Article 25 in Japanese Constitution • 1) All people shall have the right to maintain

the minimum standards of wholesome and cultured living. 2) In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.


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Legal Rights Norm for the Court

Ｐｒｏｇｒａｍ No No (this is just program or general goal)

Ａｂｓｔｒａｃｔ Yes with a statute Yes

Substantial Yes Yes

The role of the court for env. issue • 1) environmental damages are huge and

the pollution widespread. • 2) multiple parties • 3) damage is not limited to economic • 4) it takes a long time • In formal civil proceedings • 1) difficult to prove damage • 2) fee cost • 3) complexity of formal proceedings.


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Causation in tort law judge invented • 1) “But for” test: Injury would not have happened but for the

act. But for is too large and too heavy responsibility, so judges need to limit the scope of damages.

• 2) Proximate cause: “Causation” does not need a perfect scientific certainty how the damage occurred. A high probability is sufficient for causation.

• 3)Substantial factor test: multiple causes combine to produce a result, and any one alone would have been sufficient to cause the injury, D’s conduct is the cause in fact if it is substantial factor.

• 4) Alternative cause test : one of two causes the injury, but not sure which of them. The burden of the proof shifts to D.

• 5) Epidemic causation: this is one of 2). P does not need to show the kinds of pollutants, and order of occurrence in details.

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Dispute and judges • Traditional dispute) • Zero-some game? Winner and loser? • Adversary system: Judge can find the truth or decide

which the winner or loser is

• New dispute) Environmental law pollution • non-zero-some game=environmental law dispute,

products liability, insider cases • Non adversary system • →citizen suit, class action, amicus curiae, standing,

injury in fact, causation, and ADR 15

The role of judges • Students learn old days judge model

( umpire ) Find the truth or decide who is the winner in adversary system

• Today ) manager • 1) monitor the remedy implemented properly • 2) meet the parties inside the chamber • 3) offer settlement • => before trial, the judge manage the court

proceedings 16

Beyond the old days • 1) judges are generalists, not specialists.

Only politicians are specialists of policy maker => Politicians & bureaucrats are specialists but not perfect. Court can fill up the gap between the bureaucratic views and parties. ADR is one way to fill this gap

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• 2) judges do not have special knowledge and see the background of the cases

• => Judges can make law clerks & officers study the backgrounds. Judges can advice both parties gather more evidences.

• 3) judges should avoid the decision involving a long term policy and multi-interests among various parties.

• => even in politics (Diet), the information is not sufficient to pass the statutes. Statues takes a long time to pass.

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• 4) the court is passive branch. Judges wait for the complaints from the parties. Inconsistency of the policies by the court. => If judges have many cases, judges can give consistent decisions for similar cases. Judge can not do anything before the statute?

• 5) illegitimate if the judge are beyond the traditional role. Judges can not give a political decision. => what is illegitimate ? What is traditional? What is political?

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Judge need to see who receives the benefits ? • In environmental law cases, judges need to

realize that plaintiff is not only person in front of you.

• Some people receive larger benefits from the judgments, but plaintiffs themselves still pay the costs for the proceedings.

• What judges can do ?

• Flexible solution; Standing, injury in fact, mootness, ripeness, causation, redress-ability

and ADR. 20

ADR in executive branch (EDCC)


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1The Diet (Legislative branch)

3The Cabinet (Executive branch) 2The Courts(Judicial branch)

EDCC (Fed) PEC (State) • EDCC: Environmental Dispute

Coordination Commission • PEC: Pollution Examination Commission


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The Ministry of Internal Affairs and Communications

(MIC)

Executive Branch (Prime Minister)

The Ministry of Justice Local government

PEC


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Technical experts

Secretariat

Secretary general

Deputy Secretary general Examiners

General Affairs Division

Four types in PECC Conciliation Conciliators intermediates between the

parties concurred to the reach the agreement. The agreement is to be reached voluntary after the negotiations.

Mediation Mediation can’t render a legally binding power. Mediation committee may propose a solution.

Arbitration the parties need to waiver the right to appeal in the formal judicial court. The decision for arbitration has the same legal authority as the judicial decision.

Adjudication Adjudication has the legal binding power, but the parties can appeal to the formal judicial court within thirty days after the adjudication. Yuichiro Tsuji For Thailand


Merit Demerit

1) ADR respects the feeling of the parties. 2) ADR saves time, cost, and works. Usually, if the defendant is the government, huge time and cost are consumed. 3) ADR covers non-legal issue. 4) Beyond the short eye opinion, the larger purpose, some common interests is more easily found in ADR. 5)ADR creates the flexible solution for multiple parties. 6)Expert opinion is more easily available than formal judicial proceedings. 7)As the proceedings in ADR is not open to public, the privacy of the parties is secured.

1) ADR is not perfect medicine of the solution for the dispute in all cases. The formal judicial court proceedings are better than ADR in the following cases. 2)If the similar many cases are brought in front of the court, the decision by the court is better than ADR because the court is expected to give the uniform guideline for the precedent and as model regulation if the cause of action is similar. 3)In ADR, the skill and experience depend on the experts assigned. Third, the worst scenario happens even in ADR. The time and cost is wasted. Yuichiro Tsuji For Thailand


Conclusion • The democracy is Not a perfect system. We

know the worse system than the existing system, but not the better system. Legislature does not work effectively bcs of the collective action in the political process. The courts are bound to the text of the law, and the formal procedure. Judges need to decide winner between adverse parties in the formal judicial proceedings. It takes time and cost in dispute of the environmental pollution.


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“Democracy should work for by of all of the people for the future”

• ADR is not perfect system in providing the best solution. It is important to assess the advantage and disadvantage of ADR. By using the imperfect system, improving the existing system, the people can reach the sustainable society for the future.

• Thank you.


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