Luca Belli (16/12/2021). Appeal. In Belli, L.; Zingales, N. & Curzi, Y. (Eds.), Glossary of Platform Law and Policy Terms (online). FGV Direito Rio. https://platformglossary.info/appeal/.
Author: Luca Belli
This entry: (i) provides an understanding of the notion of appeal in legal doctrine; (ii) elucidates the basic functions of an appeal mechanism; (iii) offers examples of when an appeal mechanism may be needed; (iv) and highlights the recommendations put forward by the IGF Coalition on Platform Responsibility regarding appeal mechanisms.
(i) The concept of appeal
The concept of appeal is grounded on the necessity of correcting errors, which may always occur when decisions are taken. In this perspective, appeal mechanisms that allow for error correction are an essential feature of due process and rule of law principles at the core of any well-functioning legal system. An appeal is therefore a mechanism thanks to which defendants that deem to have been victims of a wrongful judgment may have these concerns addressed and, eventually, corrected. The fundamental goal of any appeal mechanism is making sure that decisions are taken observing procedural fairness, correcting errors, including arbitrary or irrational applications of existing rules and procedures.
Appeals are crucial for ensuring that justice is done in each case, and, for this reason, they are included in modern human rights instruments. Indeed, modern legal systems provide appeal mechanisms for correcting errors as historical evidence demonstrates that errors about examining specific facts or about applying existing rules to frame those facts are expected to occur regularly.
Appellate procedures vary substantially among legal systems and the scope of appellate review is generally limited to claims and defenses addressed in the proceeding that is challenged – usually defined as ‘first-instance proceeding’ (ALI, UNIDROIT, 2006, p. 27)1.
There are three general standards of review by appellate bodies: questions about the application of substantial rules (so-called ‘questions of law’), questions regarding how the facts have been analyzed (so-called ‘questions of fact’), and matters of procedure or discretion.
In general terms, appeals can:
- constitute a repeat exercise of the lower body’s decision-making, both in terms of fact-finding and the application of the relevant law/rules to those facts;
- accepting the factual determinations of the lower court (particularly when the lower court heard evidence, but the appellate court didn’t) but reviewing whether the relevant laws/rules were applied correctly (or even, in common law countries at least, whether the relevant laws/rules need re-interpreting);
- reviewing the procedural aspects of the lower court/body (e.g., was the process flawed in some way by admitting irrelevant evidence or ignoring relevant evidence).
The so-called ‘de novo’ review describes a review of a lower body (usually a court) by a superior body (i.e., an appellate court). De novo review is used in questions of how specific normative provisions were applied or interpreted. In this type of review, the appellate court can repeat in its entirety the fact-finding exercise of the lower body or court. De novo judicial review can reverse the decision that is challenged, and, for this reason, this type of review is qualified using the Latin expression ‘de novo‘ which means ‘over again’ or ‘anew’. As the appellate body re-examines the issue from the beginning, this type of review is defined as ‘nondeferential review’ because the decision is taken anew without deferring to the lower body’s decision.
Review standards can focus on both questions of fact and questions of law. The former is based on a more deferential approach. This means that the appellate body will limit its analysis to the facts – such as re-evaluating ‘clearly erroneous’ the evidence – and subsequently, defer the case to the body that took the contested for a new application of the rules in light of the factual scrutiny conducted by the appellate body.
Lastly, the ‘nuclear option’ amongst the standard of review most is the so-called ‘arbitrary and capricious’ standards. This is the most deferential type of review, as the appellate body determines that a previous decision is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.
(ii) The function of appeal mechanisms
The possibility of an error occurring is an unavoidable feature of any decision-making system. Appeals allow correcting possible errors, thus serving several types of functions. As tellingly explained by Marshall (2011)2, the primary function of the modern right of appeal is to protect against miscarriages of justice and, indeed, appeals aim at mitigating the risks and consequences of wrongful decisions (or, even worst, convictions, in case of criminal law). Wrongful decisions are always possible and arise either when a defendant – or anyone bringing a claim in the civil proceeding – is wrongly judged or when a defendant does not receive a fair trial.
The core function of an appeal mechanism is therefore to provide redress from a wrongful judgment that may be the result of an extremely ample spectrum of possible reasons, including failure to accurately assess evidence; mislead or deception by irrelevant or fabricated evidence; or lack of consideration of exculpatory evidence.
A second core function of appeal mechanisms is to remedy the lack of a fair trial. Such a situation may occur when decisions are taken applying existing (procedural) rules in an anomalous way or when clear and foreseeable procedural rules are missing.
Importantly, the existence of appeals mechanisms per se provides legitimacy to a system, while stimulating trust in such system. When efficient appeal mechanisms exist, all individuals and entities subject to a specific juridical system will know that rules are applied in a fair, transparent, and consistent fashion.
(iii) When an appeal mechanism is needed
An appeal mechanism is needed to challenge erroneous decisions based on procedural or substantial ground. Such situations may occur in the following circumstances:
- When the body that took the decision had no jurisdiction (or, more generally speaking, no competence) to take such decision or when the powers of have been utilized improperly.
- When the procedure was applied unfairly.
- When the decision is not reasonable.
- When the decision is not proportional.
- When the decision is not compatible with Human Rights obligations.
- When the decision contradicts the legitimate expectations of an individual or entity subject to a given set of rules.
- Or when the decision does not provide sufficient reasons, justifying why it has been taken.
(iv) Recommendations put forward by the IGF Coalition on Platform Responsibility
All platforms should offer their users the possibility to appeal any decisions concerning them. Appeal systems shall respect the core minimum of the right to be heard, including: (1) a form of process, which is made available to users in clear and explicit an easily comprehensible terms, mandating the respect of the guarantees of independence and impartiality; (2) the right to receive notice of the allegations and the basic evidence in support, and comment upon them; and (3) the right to a reasoned decision.
- ALI/UNIDROIT. (2006). Principles of Transnational Civil Procedure. Available at: https://www.unidroit.org/instruments/civil-procedure/ali-unidroit-principles/.
- Marshall, P. D. (2011). A comparative analysis of the right to appeal. Duke J. Comp. & Int’l L., 22, 1.