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Judicial Review of Commercial Regulation (Hardcover)
Loot Price: R4,846
Discovery Miles 48 460
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Judicial Review of Commercial Regulation (Hardcover)
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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 of individual 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 demands of 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 of the 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 reasonableness in 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 strictly necessary to achieve the desired
outcome.
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