The Rule Against Bias and the Doctrine of Waiver

James Goudkamp, ‘The Rule against Bias and the Doctrine of Waiver’ (2007) 26 Civil Justice Quarterly pp.310–327.

13 Pages Posted: 2 Mar 2016 Last revised: 5 Mar 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2007

Abstract

In recent years, the courts in many jurisdictions have frequently been called upon to consider the right to an impartial tribunal. In doing so, the courts have had cause to examine the circumstances in which this right may be waived. This article offers an analysis of the doctrine of waiver as it operates in this context. It also sets out the arguments that support and militate against its application. It is argued that, contrary to the position which the law presently adopts, the presence of the doctrine in this setting is misconceived. The right to an impartial tribunal exists principally for the purpose of upholding public confidence in the administration of justice. Permitting individual litigants to waive this right impedes the realisation of this objective.

Keywords: civil procedure, judicial bias, judicial independence, waiver

JEL Classification: K41

Suggested Citation

Goudkamp, James, The Rule Against Bias and the Doctrine of Waiver (2007). James Goudkamp, ‘The Rule against Bias and the Doctrine of Waiver’ (2007) 26 Civil Justice Quarterly pp.310–327.. Available at SSRN: https://ssrn.com/abstract=2740287

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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