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Law of the Future 2011 23 & 24 June 2011, Peace Palace, The Hague, The Netherlands title: Reference to foreign law in the highest courts of Britain and the Netherlands: transnational convergence of judicial practices? By: Dr. Elaine www.lawofthefuture.org
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Law of the Future Conference 2011
23 – 24 June 2011 / Peace Palace / The Hague
Dr. Elaine Mak
Reference to foreign law in the highest courts of
Britain and the Netherlands: transnational
convergence of judicial practices?
Law of the Future Conference 2011
Research questions
o 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?
Law of the Future Conference 2011
Outline
o 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
o 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
Law of the Future Conference 2011
Variables of convergence (I)
o Constitutional variables
> Convergence of constitutions and constitutional conventions> Catalyst: constitutional flexibility> Variables: constitutional culture, relation between the
national and transnational, scope of judicial power
o 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
Law of the Future Conference 2011
Variables of convergence (II)
o 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
o 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
Law of the Future Conference 2011
Practices of Dutch and UK judges
o 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
Law of the Future Conference 2011
Practices of Dutch and UK judges
o Considerations regarding utility
> Deciding cases of public importancee.g. Fairchild (proof of causation); Baby Kelly (wrongful life)
> Obtaining knowledge or a yardstick for the deciding of specific casese.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 positione.g. Cooper (court-martial & Article 6 § 1 ECHR)
Law of the Future Conference 2011
Practices of Dutch and UK judges
o 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
Law of the Future Conference 2011
Conclusion (I)
o 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
o 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
Law of the Future Conference 2011
Conclusion (II)
o Future scenarios
> Broader convergence: a global ‘race to the top’> Deeper convergence: harmonising legal argumentation
o Systemic developments: the HiiL scenarios
> Global Constitution, New Legal Borders or Global Internet?
o 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
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