Judicial Review of Commercial Regulation

Hardcover | May 7, 2011

byJaime Arancibia

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English courts have traditionally held a policy of judicial restraint towards regulatory decisions in the commercial context. This book provides a critical view of the courts' deferential attitude and advocates a more intensive form of judicial review which is more satisfactory in terms ofindividual justice. Addressing the issue in three parts, the orthodox common law position on judicial review is first set out, demonstrating the deferential approach of the courts and highlighting the limited scope of review in a commercial context. The regulator's expertise and institutional autonomy, and the demandsof administrative efficiency, all contribute to preventing the courts from interfering with the development of regulatory policies. The book then moves on to consider how current policy appears to be inconsistent with the relevant values of English public law which protect individuals from capricious and arbitrary executive action - particularly the right of the applicant to obtain an independent assessment of the validity ofthe impugned decision by a court which acts as ultimate arbiter of law. Setting out an alternative model based on European human rights law, the book contends close supervision is necessary over decisions which alter or determine the operation of markets in order to reach a level of judicial control that is consistent with the requirements of fairness and reasonablenessin this area and with proper respect for the rights of the parties involved. This alternative approach finds its roots in the principle of proportionality, which entails a greater judicial attenuation of administrative autonomy in order to ensure that actions do not go beyond what it is strictlynecessary to achieve the desired outcome.

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English courts have traditionally held a policy of judicial restraint towards regulatory decisions in the commercial context. This book provides a critical view of the courts' deferential attitude and advocates a more intensive form of judicial review which is more satisfactory in terms ofindividual justice. Addressing the issue in thr...

Dr. Jaime Arancibia is Lecturer in Constitutional and Administrative Law and Vice-Rector for Academic Affairs at Universidad de los Andes (Chile), and the author of several articles in public law litigation. He is also an Associate Fellow of the Centre for Public Law at Cambridge University.
Format:HardcoverDimensions:256 pages, 9.21 × 6.14 × 0.82 inPublished:May 7, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199609071

ISBN - 13:9780199609079

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Table of Contents

1. Judicial Review of Commercial Regulation2. The Orthodox Deferential Approach3. Objections to the Orthodox Approach4. A More Intensive Review based on European Liberal Influences5. The Influence of the European Principle of Proportionality upon UK Regulatory Law6. The Broader Effect of the Principle of Proportionality7. Conclusion