Principle of exclusivity – What is it, definition and concept | 2022

The principle of exclusivity is that only the courts and tribunals will be able to judge and execute what has been judged, that is, they will be the only ones that will be able to carry out the jurisdictional function.

In other words, the principle of exclusivity means that only the courts and tribunals can apply the law to issue sentences.

This principle is the source principle of procedural law by which it is defined which bodies have the function of judging the problems of citizenship and which need application of the law. This principle has two aspects:

  • Positive aspect: Only the courts and tribunals can exercise the jurisdictional function, that is, only they can judge a conflict and enforce its sentence, its solution. Neither the organs of the Legislative Power nor those of the Executive Power can do this task.
    • About the Commissions of investigation installed by the Chambers (or the Parliament), these can be constituted on any matter of public interest, but their conclusions cannot affect the judicial resolutions. Its conclusions will not be binding on the courts.
  • Negative aspect: The courts and tribunals may not dedicate themselves to another function, their sole and exclusive function will be to exercise jurisdictional power. It does not give rise to private justice or personal revenge.

This principle means that the Judiciary is exclusively in charge of the justice of a State and only of justice. Although marginally, the laws can provide them with other functions such as being a public registry.

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But what is the jurisdiction of which courts and tribunals have exclusivity? Let’s see

What is jurisdiction?

Jurisdiction is the power to judge and enforce what is judged. This corresponds to the judges and, as a whole, to the Judicial Power in accordance with the laws. It is the role and power that judges have to resolve conflicts that come to trial within their powers.

Characteristics of the exclusivity principle

The main characteristics of this principle are:

  • It is the fundamental axis that establishes procedural law and is usually found in the Constitutions of the States.
  • The Judicial Power will be the only and exclusive one in exercising jurisdictional power. The last manifestation or final result of the jurisdiction is the sentence.
  • The Judiciary must exercise its function not only exclusively, but must do so independently. Judges and courts only have to be subject to the law and must not receive external pressure from other powers, and must not be involved in the conflict they are going to resolve.
  • Exclusivity also includes jurisdictional unity. This means that there will be no special jurisdictions except when provided by law. This means that there are no jurisdictions for different people. For example, it would be unconstitutional if there were trials only for women and others for men.
  • The jurisdiction is completely subject to law. Judges cannot resolve a conflict between people through their experience or opinion, but rather they have to apply the law through the sentence that puts an end to the judicial conflict.
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Exceptions to the principle of exclusivity

There is a qualification that the courts and tribunals have this exclusive function and it is the executive self-protection of the Administration and the sanctioning power.

The Administration has self-protection against the companies without the need to go to court. This self-protection refers to the power of public administrations to impose fines or sanctions on the company when administrative law is breached.

It is not necessary that the consequence (the fine) of an act be judged by a judge, but can be imposed by a member of the Administration.

For example, a policeman through a traffic ticket. This fine is a pecuniary penalty imposed on the citizen without the need to be judged. However, if the citizen wants to claim, he may do so, but first administratively and as a last resort through the court.

But then what about arbitration? Arbitration is an alternative to the judicial route, it provides the litigants with the solution of the conflict in a definitive and irrevocable way. Both resolutions (judicial and arbitration) enjoy the full effects of res judicata without the need for approval.

Both the arbitrator and the judge must be impartial third parties who definitively resolve a conflict.

Arbitration disputes and judges

The differences between arbitrations and judges are mainly:

  • The arbitrator is appointed by the will of the parties, but the judge is appointed by law.
  • The arbitrator cannot coercively enforce his decision. To require coercion, you must go to court.
  • The arbitration solution can only be achieved when there is an agreement between the parties to submit to the arbitrator’s decision (voluntary).
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