LOTF2011 | Dr. Elaine Mak

Dr. Elaine Mak Reference to foreign law in the highest courts of Britain and the Netherlands: transnational convergence of judicial practices?

Research questions
Questions > Is there a convergence of judicial practices of western highest courts under the effects of globalisation? > If so, why is this convergence taking place? Does it relate to the increased opportunities for judicial exchange or to a systemic change in the interaction between legal systems?

Outline
Identifying the variables that influence the convergence of judicial practices of highest courts in liberal democracies > Inventory of constitutional, institutional, organisational and personal variables of convergence
Describing and explaining the judicial decision-making in selected highest courts on the basis of the identified variables > Analysis of the practices of judges at the Supreme Court of the UK and the Dutch Hoge Raad on the basis of case law, public lectures and interviews

Variables of convergence (I)
Constitutional variables > Convergence of constitutions and constitutional conventions > Catalyst: constitutional flexibility > Variables: constitutional culture, relation between the national and transnational, scope of judicial power
Institutional variables > Convergence of institutional relations > Catalyst: societal debate > Variables: function of the court, relation to the other branches of government, relation to other national courts, relation to transnational courts, relation to the general public and to academics

Variables of convergence (II)
Organisational variables > Convergence of court organisation and working methods > Catalyst: exchange of ‘best practices’ > Variables: size of the court, case load, proceedings regarding research of foreign law, process of deliberations, style of judgments
Personal variables > Convergence of individual judicial approaches > Catalyst: individual reflection > Variables: legal training and professional experiences, personal views on judicial role, selection of highest court judges, interaction with colleagues on the court

Practices of Dutch and UK judges
Types of foreign legal materials used > European Convention on Human Rights > European Union law > Other international legal materials: treaties, decisions of international organisations > Judgments of foreign courts > Other types of foreign legal materials: transnational private regulations, draft principles

Considerations regarding utility > Deciding cases of public importance e.g. Fairchild (proof of causation); Baby Kelly (wrongful life) > Obtaining knowledge or a yardstick for the deciding of specific cases e.g. Reynolds (libel & qualified privilege); HIV cases (conditional intent) > Meeting the quality standards of foreign ‘peers’ e.g. LEGO case (precise imitation) > Spotting trends regarding the evolution of the law and determining one’s own position e.g. Cooper (court-martial & Article 6 § 1 ECHR)

Considerations regarding methodology and legitimacy Considerations of principle > Foreign law as main argument or additional argument? > Full discussion or ‘cherry picking’? Practical considerations > Knowledge of foreign languages > Knowledge of foreign legal systems > Knowledge of legal history > Specificity of legal questions > Weight of foreign judgments

Conclusion (I)
Convergence of judicial practices? > Tendencies of convergence regarding the practices of the Supreme Court of the UK and the Dutch Hoge Raad can be identified at the constitutional, institutional, organisational and personal level of judicial decision-making
Causes of convergence? > The increase of personal contacts between judges and the better availability of legal materials have created a platform for the exchange of ideas and practices > The increased interconnections between legal systems have made it legitimate and interesting for highest courts to take account of foreign legal ideas and practices

Conclusion (II)
Future scenarios > Broader convergence: a global ‘race to the top’ > Deeper convergence: harmonising legal argumentation
Systemic developments: the HiiL scenarios > Global Constitution, New Legal Borders or Global Internet?
The uncertain personal variable > More global or more insular judges? > The role of academics: pointing out what is happening and what courts can and may do

LOTF2011 | Dr. Elaine Mak

by HiiL on Jul 08, 2011

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LOTF2011 | Dr. Elaine Mak — Presentation Transcript