Domestic Judiciaries Research Articles

Freedom of expression and reputation protection in the European Court of Human Rights practice.

The article is devoted to the issue of understanding freedom of expression and reputation protection by the European Court of Human Rights. New opportunities to exercise the right to freedom of expression arise and opportunities to implement the right to freedom of expression as well as the possibilities for defamation increase within a democratic and information society. It is emphasized that within a law-based state guarantees provided to the press are of particular importance, as the media should disseminate information and ideas of public interest, and the public has the right to receive such information and ideas. A clear understanding of the content of the right to freedom of expression and the right to reputation protection is the basis for resolving the issue of finding a balance between them, which designates the relevance of the study. The paper elucidates the results of the European Court of Human Rights decisions analysis under Articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to privacy and the right to freedom of expression). Emphasis is placed on the various features of these rights and the peculiarities of their implementation in different circumstances. It is pointed out that the domestic judicial system actively uses the European Court of Human Rights practice in resolving cases related to reputation protection. Attention is placed on the fact that freedom of expression does not extend to hate speech. The spread of the right to reputation protection as for defamation of family members and relatives is analyzed. Emphasis is placed on the dynamic approach of the European Court of Human Rights towards the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms. Even before the beginning of 2000, the European Court of Human Rights noted that the protection of reputation does not fall under the protection of the Convention for the Protection of Human Rights and Fundamental Freedoms. The study describes the genesis of the positions of the European Court of Human Rights on a person’s reputation protection. It is stated that a person’s right to protection of his or her reputation is covered by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms as part of the right to respect for private life (provided that causing considerable damage to reputation if it affects a person’s private life).

The Sources of Resilience of International Human Rights Courts: The Case of the Inter-American System

International courts (ICs) with human rights mandates have recently faced instances of backlash aiming to curb their authority. Taking cues from research on the functioning of ICs, we argue that ICs will be resilient—able to maintain their competences and authority in the face of backlash—to the extent that they are embedded in domestic “legal complexes.” Our framework identifies key sites of embeddedness and stresses the importance of synergies between them, including: (1) the incorporation of treaties into domestic law; (2) independent courts; (3) acceptance and use of IC jurisprudence by domestic judiciaries; (4) strong national human rights institutions; (5) incorporation of international law into legal training and research; and (6) the presence of NGOs that rely on ICs. This article explores resilience in the Inter-American System of Human Rights. First, we discuss and map the state of each source of resilience across Latin America. Second, we show how the activation of sources of resilience helped preserve the integrity of Inter-American institutions in the face of backlash orchestrated by several countries between 2011 and 2014.

A margin for the margin of appreciation: Deference in the Inter-American Court of Human Rights

Abstract Despite its extended criticism, is there any room for the margin of appreciation in the Inter-American Human Rights System? The article claims there is, if we ground the doctrine in the principle of subsidiarity. This principle gives a solid foundation to the margin of appreciation and shows that the doctrine does not respond to an exclusively European reality. It also helps to identify the factors that determine the width of the margin given to the states and how they interact with each other: the absence or presence of absolute rights, the quality of the domestic judiciary, and the need for a closer participation of the community and the expertise of the state. These conditions are analyzed in the light of the case law of the inter-American human rights system. The article explores the proper role of the margin of appreciation within human rights adjudication and its compatibility with the doctrine of conventionality control developed by the Inter-American Court of Human Rights.

ОСОБЛИВОСТІ УКЛАДЕННЯ СПАДКОВОГО ДОГОВОРУ ЗА ЗАКОНОДАВСТВОМ УКРАЇНИ ТА ЗАКОНОДАВСТВОМ КРАЇН ЄВРОПЕЙСЬКОГО СОЮЗУ

The article deals with the legal nature of an inheritance contract, specifies the essential terms of an agreement as well as the legal status of the parties under the legislation of Ukraine and the European Union. The significance of the inheritance contract in the system of contracts of civil law of Ukraine is analyzed. It is proved that the legal relations arising in the case of entering into an inheritance agreement are also regulated by the general provisions of the Civil Code of Ukraine on transactions. Chapter 90 of the Civil Code of Ukraine stipulates that the inheritance contract should contain a binding legal model and a succession model. Having examined the legislation of Ukraine, it is concluded that the inheritance contract should be considered as a part of contract law. This contract regulates the transfer of property. Despite the fact that the inheritance agreement is included in the sixth book of the Civil Code of Ukraine, and despite the name of the agreement, the legal relationship of inheritance in this case does not arise. The similarity of the inheritance agreement with succession reveals in the commonality of the main legal basis for the right to inherit from the heirs and the acquirer’s right to ownership that occurs in the case the death of a natural person – the alienator. It is found out that according to the provisions of the Civil Code of Ukraine, the essence of the inheritance contract is that such an agreement defines the disposal of the alienator’s property during his lifetime, but with the acquirer’s acquisition of the right to property after the alienator’s death. The feature of an inheritance contract is that the property that is the subject matter of the inheritance agreement is not applicable to the norm ensuring the right to a mandatory share in the heritage. The comparative analysis of the institute of the inheritance agreement by the legislations of Ukraine and Germany is carried out. To be specific, the legal essence of the inheritance agreement is determined, the problems of concluding and terminating the inheritance contract are investigated, as well as the gaps concerning this legal structure in the domestic judicial system are discovered. It is also defined that the inheritance agreement was approved and received its further development in German law. According to the doctrine of German law, the legal nature of this type of agreement is that, on the one hand, it is an order in case of death, and, accordingly, is one of the grounds of inheritance, and, on the other hand, it is a contract, i.e. agreement of the parties on the heritage right in favour of a certain person, preventing it from unilateral change or cancellation. The inheritance contract in German law has the following features, including: 1) it is an order in case of death; 2) it is a bilateral transaction, i.e. agreement; 3) the subject matter of the contract is the right of inheritance; 4) the inheritance contract is one of the grounds for inheritance.

MODERN LAW IN THE AGE OF SOCIAL CHANGE

Purpose: the purpose of the scientific article is to summarize the results of the XI International Scientific and Practical Conference «Modern Law in the Age of Social Change» and to develop proposals for intensifying research aimed at solving specific problems in various areas of law that need urgent solution. To achieve a certain goal, general and special scientific (special) methods were used. Use these methods to analyze. Results: the expected results of our International Conference are a scientific substantiation of theoretical and practical aspects of legal reform in Ukraine; solving problems of social standards and outlining the prospects for their implementation in public administration; clarification of criminal policy to combat crime in modern society; determining the impact of social change on the formation of modern civil science, making proposals for development in the context of globalization challenges, economic, air and space law, etc. The interest of a large number of Ukrainian and foreign scientists and legal practitioners in this issue testifies to its relevance and the ability of the scientific community to respond to the challenges of the modern world and actively participate in the social changes taking place today not only in Ukraine but around the world. Discussion: carrying out legal reform in Ukraine is one of the key requirements insisted on by both the Ukrainian expert community and Ukraine’s international partners. The position on the necessity and urgency of changes in the judiciary is shared by Ukrainian society. Undoubtedly, the main task of judicial reform is to establish a fair court and improve the domestic judicial system. The issue of judicial reform and improving the efficiency of justice has always been and remains relevant among scholars. As a result of the study, appropriate proposals and recommendations were made, in particular: take into account the experience of the world’s leading countries in reforming the judicial system of Ukraine on the basis of respect for human rights and fundamental freedoms as a defining foundation in the activities of the judiciary and the judiciary; continue judicial reform, taking into account the need to address the following issues that need to be addressed immediately, in particular the low level of trust in the judiciary, primarily due to corrupt connections, bad behavior of many judges, their dependence and bail; access to justice; failure of the purge policy and change of the judiciary; inefficient access to justice due to violated personnel policy in the courts, high workload on the judiciary and the prevalence of litigation; special attention should be paid to the problem of ensuring the stability of the constitution and a high level of respect for the Basic Law, especially by state bodies and political forces; introduce an effective mechanism for resolving disputes over information disseminated on social networks, as currently national courts in most cases refuse to satisfy claims and do not recognize the relevant information as unreliable and do not oblige defendants to refute it; develop and implement an effective legal mechanism of short-term and long-term comprehensive strategy to overcome poverty in order to improve the quality of life and provide vulnerable groups to the level of minimum standards, including the subsistence level that meets social needs in modern conditions; to continue to expand the practice of interaction of educational institutions with business entities, state and law enforcement agencies, to build a flexible educational process so as to provide an opportunity to introduce new disciplines at the request of the legal services market, at the request of specific employers to train specialists.

International Human Rights Courts and Sources of Resilience: The Case of the Inter-American System

International courts (ICs) with human rights mandates have recently faced instances of backlash, aiming to curb their authority. But human rights ICs continue to function with their competences largely intact. A crucial source of IC resilience is embeddedness in domestic institutions and actors. Taking cues from research on the functioning of ICs, we argue that ICs will be resilient – able to maintain their competences and authority in the face of backlash – to the extent that they are embedded in domestic complexes. Our framework identifies key sites of embeddedness and stresses the importance of synergies between them: 1) incorporation of treaties into domestic law; 2) independent courts; 3) acceptance and use of IC jurisprudence by domestic judiciaries; 4) strong national human rights institutions; 5) incorporation of international law into legal training and research; and 6) presence of NGOs that rely on ICs. Empirically, the paper explores resilience in the Inter-American System of Human Rights. First, we discuss and map the state of each source of resilience across Latin America. Second, we show how the activation of sources of resilience helped preserve the integrity of Inter-American rights institutions during backlash orchestrated by several countries between 2011 and 2014.

THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

The article is devoted to the principle of the rule of law, implemented through the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. (Convention) by the European Court of Human Rights (ECHR). The relevance of studying this principle is due to the new approach formed by the Court that the rule of law is “inherent in all articles of the Convention.” We can see its application in the current case-law of the Court as one of the fundamental elements of the independence of national courts. Thus, the author aims to identify the theoretical and practical aspects of the ECHR’s approach to the problem of judicial independence and legal application of the rule of law principle, to study the relevant Court practice. The rule of law and the independence of the judiciary as the basic elements of the convention system are an integral part of the institution of the “European public order” developed by the ECHR, therefore it is necessary to trace their interconnection. The case-law of the ECHR served as the material for the study, which allowed us to identify all stages of the formation of the rule of law principle and its actual “content”. Analyzing judicial practice, along with using doctrinal approaches, we managed to identify the limits of permissible application of national laws, the powers of bodies and officials of various branches of government, bodies of the judicial community to the given problem, new aspects of the status of judges seen as one of the democratic values of society. To achieve this, the author used methods specific to studies of law and general scientific (traditional) research methods, with an emphasis on comparative and general legal methods, and the method of induction during the analysis of judicial practice. The paper examines the normative sources of law and judicial practice of the ECHR, allowing to reveal the principle of the rule of law, its correlation with the principle of judicial independence, the specifics of its impact on the domestic national judicial system and the functioning of the state apparatus, to determine the role of the principle in the convention mechanism of the protection of human rights.

TRANSPARENCY OF THE JUDICIARY IN THE CONDITIONS OF DIGITALIZATION OF CIVIL JUDICIAL PROCEEDINGS

This scientific article reveals the content of the transparency of the judiciary as one of the most important world and European standards of justice in the context of digitalization of civil justice in Ukraine. Transparency is seen as an effective deterrent in the fight against corruption and abuse of power in the judiciary, which provides an opportunity for public control over the administration of justice and established its impact on the reform of the domestic judicial system. The connection between the transparency of the judiciary and publicity, access to justice and some other principles of civil procedure is described. Some problems of coverage of the trial and the results of the case in the media, especially in high-profile cases, are outlined. The importance of expanding electronic services, which improve the communication between courts and citizens, facilitate communication between them and facilitate access to justice, is emphasized. A number of recommendations of the Committee of Ministers of the Council of Europe to increase the level of digitalization of justice and the use of information technology in the judiciary are analyzed. Emphasis is placed on the existence of a significant impact of transparency on the openness and accessibility of judicial activity, its comprehensibility for a wide range of people, which increases the authority of the judiciary. The introduction of a single judicial information and telecommunication system in the courts is considered an important step towards the digitalization of justice, which in the long run will lead to the formation of the so-called combined trial, when part of the proceedings are performed online and the other offline. It is important that procedural law gives litigants the opportunity to choose the course of action for most procedural actions. It is proved that at the current stage of development of the judicial system the optimal procedure should be considered one that allows maximum use of information technology in litigation, while providing the opportunity to obtain judicial protection by citizens who for various reasons do not have access to necessary technologies.

Domestic Politics and the Effectiveness of Regional Human Rights Courts

ABSTRACT Under what conditions are regional human rights courts effective? I argue that in order for regional human rights courts to be effective, they should deter future human rights abuses and this is more likely when the executive adopts and implements rights-respecting policy in response to adverse regional court decisions. When the executive expects the domestic judiciary to implement regional human rights court orders, the executive also expects to face domestic pressure for failing to make policy changes despite domestic judicial implementation of regional court orders. However, the domestic judiciary does not implement regional court orders with equal probability. Domestic judicial power (independence and effectiveness) increases the ability and willingness of the domestic judiciary to implement regional court orders, and subsequently increases the likelihood that the executive adopts and implements comprehensive human rights policy. Using data on adverse judgments from the European and Inter-American Courts of Human Rights, I find that regional human rights courts are more likely to be effective in the presence of a strong domestic judiciary.

PUBLIC ADMINISTRATION INDEPENDENCE OF JUDGES IN UKRAINE

The Constitution of Ukraine contains mandatory requirements that a person applying for the position of a judge must meet. Given that the judiciary is the judiciary, whose activities are related to the restoration of violated rights, these functions can be performed only by persons who meet all the requirements established by the Basic Law and regulations governing the social status of judges in Ukraine. However, recalling the requirements for judges, the principle of ensuring the independence of judges in Ukraine should also be disclosed. The purpose of the article is to reveal the public administration of ensuring the independence of judges in Ukraine on the basis of a comprehensive analysis of regulatory frameworks, conceptual ideas and scientific positions. The article stipulates that in order to properly ensure the independence of judges it is necessary to carry out effective, optimal, comprehensive public administration, which by its nature in this area is to exercise power and organizational and support activities of public administration in a special way to protect legal status, immunity and professional interests of a judge, which constitute his independence in legal relations. It was found that the independence of a judge is a special, intra-judicial state of protection and independence of a judge, which is regulated by law and consists in determining the legal status of a judge regarding his professional immunity and immutability, creating conditions for ensuring a judge's professional activity. and other factors that may adversely affect professional activity. It was emphasized that the state of the domestic judicial system, in particular the observance of the principle of independence of judges, has long passed into the category of problems that are of particular concern to Ukrainian society. No one doubts the need to rectify this problematic situation, but all the measures taken, including the implementation of the relevant tasks of judicial reform, have not yet had a significant impact on ensuring the real independence of judges.

Administrative offenses in the field of traffic in Germany

Introduction. The quality of justice depends on the peculiarities of the judicial process, in one way or another the opinion of the population about the judicial system is formed. This fact actualizes the need for research on the organization of court cases in foreign countries. However, it should be noted that a unified conceptual approach to the organization of litigation has not yet been developed. The automatic transfer of one of the world's existing models into the domestic judicial system can hardly be effective: any legal institute must organically fit into the already existing legal system. At the same time, the study of models of organization of trials of progressive European countries is necessary, since some of their elements can be borrowed and implemented in Ukraine today. The purpose of the paper is the analysis of the peculiarities of consideration of cases of administrative offenses in the field of traffic in Germany. Results. The experience of Germany shows that judicial review of administrative offenses in the field of traffic is conducted only if the offender (interested person) decides to appeal against the decision of the administrative jurisdiction to apply sanctions. In turn, to prevent the delinquent delinquency of administrative cases in the field of traffic, the courts are empowered to change the sanctions of administrative jurisdictions in the direction of increasing them, in addition, the court may reclassify the offense into a crime (during the case). Conclusion. The German legislature's approach to the organization of the trial and the circumstances of the case compels the offenders to pay the fine in the pre-trial proceedings. In this regard, the German judicial system is not overloaded with cases of this category, unlike the domestic judicial system.

Investment Arbitration - Rule of Law Demands of the Domestic Judiciary (Denial of Justice, Effective Means, Judicial Expropriation)

Promotion of the “rule of law” is a strong argument in favour of international investment law. This chapter addresses the actual and potential role of rule of law criteria for investment tribunals in three areas: whether measures taken by domestic courts constitute expropriation, a denial of justice or a violation of the effective means standard. It demonstrates that rule of law criteria were often the decisive standard in examining judicial decisions of national courts although many of the investment tribunals did not refer to the concept of the rule of law explicitly. Rule of law criteria can serve as a useful toolbox for investment tribunals when dealing with alleged denials of justice, judicial expropriation and violations of the effective means standards. The rule of law standards used by investment tribunals are fairly similar to the requirements of human rights treaties and those developed in the case law of the European Court of Human Rights in the context of rule of law and judicial proceedings. So far, investment tribunals have not made explicit reference to the concept of the rule of law to justify the criteria they apply when assessing measures of domestic courts. An explicit linkage to the concept of the rule of law could give these criteria additional authority and highlight their importance.

Comment: The Principle of Universal Jurisdiction for Massive Human Right Violation of the Past: An International and Ethiopian Perspective

Confronting egregious human rights violations and repressive past is an arduous and necessary task to end the cycle of impunity. Bearing in mind Ethiopia’s notable contribution to the peace and security in the Horn of Africa and beyond, Ethiopia and the region at large can benefit from showing support to institutions that aim to establish accountability for grave human rights violation. Ethiopia needs to champion and redefine its support of accountability by exercising universal jurisdiction. Where the domestic judicial system is unable or unwilling to deal with grave crimes committed within its national jurisdiction or against its nationals, other countries’ institutions can serve as safeguard and fallback options to establish accountability, thereby significantly contributing to the protection of human rights. Thus, it is very crucial to the fight against impunity that Ethiopian laws providing for universal jurisdiction should be set in motion. In this comment, the scope, development, role and challenges of the principle of universal jurisdiction with proper reference to practical cases are discussed. Furthermore, thes cope of universal jurisdiction under Ethiopian law is compared with international law and African model Universal Jurisdiction Law to indicate its implication to the Horn of Africa.Key termsTransitional justice · Accountability · Universal jurisdiction · Ethiopia · Justice · Horn of Africa

Judicial Activism in the World Trade Organization: A Conundrum and Selective Approach

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents.

The role of personality traits and political trust in people’s attitudes toward EU membership

ABSTRACT Whereas the role of personality traits and political trust have long been argued to impact people’s political attitudes, only recently have scholars of the European Union (EU) integration begun to take them into consideration while trying to explain people’s attitudes toward the EU. In an effort to explain the support for EU membership among citizens of Albania and Kosovo, we build a series of ordered probit models using as key independent variables two core personality characteristics, self-reported Optimism and Extraversion, and one surface characteristic, political trust. We found evidence that Optimism, Extraversion, trust in EU politicians and the judiciary, as well as trust in domestic politicians positively impact people’s support for EU membership. However, we found no evidence that people’s trust in the domestic judiciary associates their attitudes toward EU membership. We tested our hypotheses with a probability simple sample of public opinion data gathered in Albania and Kosovo in 2017.

Supporting rule of law from abroad: a comparative assessment of two post-Arab Spring judicial reforms

AbstractIn the Southern Mediterranean region, the European Union (EU) supports the establishment of rule of law, pressuring for both the adoption of institutional guarantees of judicial independence and the enhancement of court administration capabilities. Drawing on a set of interviews with key EU and domestic actors, this study compares Morocco and Jordan, examining changes adopted at the institutional and administrative level since the ‘Arab Spring’ broke out. The findings show that external incentives for change penetrated only the administrative level of domestic judicial systems, while a path-dependent effect persisted at the institutional level. The evidence confirms the thesis that in areas of low politics even a mere normative pressure is able to drive rule adoption, whereas in more sensitive policy areas, as in the case of institutional judicial guarantees, the higher costs of adaptation make veto players resistant to external influences for change.

Combating Impunity for Mass Atrocities: A Call for Hybrid Tribunals

International criminal law, in its current state, is broken. A general lack of resources among the International Criminal Court and domestic judiciaries, compounded by legitimacy crises afflicting both judicial mechanisms, is contributing to widespread impunity for atrocity crimes. In order to mitigate this expanding impunity, this paper calls for a return to the hybrid model of prosecution for mass atrocities by establishing courts that blend aspects of international law with that of the state or region where the atrocities were committed. This paper examines the unique ability of the hybrid model to combat impunity both through accountability and by achieving broader transitional and restorative justice goals for post-conflict communities. In support of this renewed call for hybrid courts, this paper employs a geographic case study analyzing the failures and achievements of the two Asian hybrid courts – the Special Panels for Serious Crimes in East Timor and the Extraordinary Chambers in the Courts of Cambodia – in terms of accountability, legitimacy, and capacity building. Drawing on the experiences of the two Asian hybrid tribunals, this paper calls for a global return to the hybrid model of prosecution for mass atrocities, albeit with modifications that consider the necessary limitations on this adjudicatory model.

Courts Caught in Conflict? Institutional Trust and Social Conflict

According to positivity theory, the public's exposure to the American judicial system and the judiciary's unique set of symbols and processes tends to lead individuals to confer on the institution legitimacy and trust through mechanisms often not available to other political actors. This paper focuses on whether this theory operates outside of the American context, arguing that the legitimacy conferred by domestic audiences upon domestic judiciaries will be less variable than the legitimacy reposed in other governing actors. However, moving to a comparative context implicates a number of potentially additional factors, including the influence of variation across regime-types, legal systems, and issue areas. Are courts inherently unique, as suggested by positivity theory, or does the resiliency of courts vary across different institutional contexts? In order to answer this question, this study leverages survey data from the Latinobarometro and the Afrobarometer to measure levels of public trust in several governing institutions, including, but not limited to, the judiciary, the executive, and the legislature, to analyze whether institutional legitimacy varies across different governmental actors in the presence of public opposition to government policy or across different legal institutional contexts. Public discontent with policy is measured using data coded by the Social Conflict Analysis Database, which identifies instances of demonstrations, riots, and strikes. As a measure of the institutional context within which a judiciary operates, the analyses leverage a latent variable of judicial independence created by Linzer and Staton (2015). The paper's statistical analyses provide evidence to support the distinctiveness of judiciaries, finding that social conflict can impact negatively public trust in executives and legislative institutions, yet exert no influence on public trust in judiciaries. Furthermore, the empirical results indicate that high levels of judicial independence can be converted to higher levels of trust in the judiciary.

International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia

Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia’s foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court’s tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

We’ll See You in . . . Court! The lack of arbitration clauses in international commercial contracts

It is a widely held assumption that sophisticated parties prefer arbitration over litigation in international agreements for three reasons. First, the flexibility granted by arbitration would allow parties to write dispute settlement clauses that are tailored to their individual preferences. Second, concerns for home biases would provide incentives to remove the dispute settlement process from either parties’ domestic judicial system. And third, a greater ease of enforcement would cause parties to prefer arbitration over litigation.This study examines the validity of these theoretical claims relying on over half a million contracts filed with the SEC between 2000 and 2016. The results suggest that arbitration clauses are less frequently adopted than clauses referring parties to the domestic court system. If they are included, arbitration clauses serve the specific purpose of strategically reducing the discretion granted to the courts enforcing the decision. Absent serious threats to enforcement, parties prefer courts over arbitration, making arbitration a second-best-alternative to a well-functioning domestic judiciary.