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  • Peter Kam Fai Cheung SBS

Access To Appeal/Review

If a party is aggrieved with a judicial/quasi-judicial decision, the party may follow the procedure to appeal/review by filing a notice with grounds within the stipulated time frame. Whether the access is as of right depends on the private/public nature of the case and the level of the decision-making body/appellate body. Leave to satisfy the initial threshold might have to be sought.

Access to appeal/review process, in a deeper analysis, has both private and public functions to play. While the private one is to be accountable to parties' cases, the public one is to correct any errors of judgment, whether in law, or in facts, or in the exercise of discretion, to enhance public's confidence in the justice system. The appeal/review process is a significant institutional aspect of the rule of law.

There is anecdotal evidence to suggest that the success rate for appeals/reviews in municipal jurisdictions is considerably less than half. The lowest appeal/review success rates being in the field of international protection of human rights. No matter how high the standards of fairness in any jurisdiction, the international legal order is still imperfect for certain individuals who dream to master their fates.

As a WTO Dispute Settlement Panelist, I was fortunate enough to have the opportunities to decide on two WTO cases. They were about Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (United States v European Communities - WT/DS 174, and Australia v European Communities - WT/DS 290). I still take pride that the States filed no appeals!

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