Judicial Self-restraint Research Articles

The anti-suit injunctions in patent litigation in China: what role for judicial self-restraint?

Abstract Starting from 2020, the Chinese courts have actively participated in the jurisdictional battles for the standard essential patent (SEP) disputes, a pivotal development marked by the Supreme People’s Court’s inaugural SEP-related anti-suit injunction (ASI) in Huawei v Conversant. Subsequently, lower courts in China have emulated this approach by issuing ASIs targeting SEPs in the domain of information and communication technology. The present study highlights the features of the Chinese ‘act preservation measures’ by comparing them with the typical ASIs originally developed in the common law jurisdictions. This comparison reveals significant divergence in the factors considered by Chinese courts issuing ASIs, particularly in the context of cross-border patent litigation. The study aims at elucidating potential defenses that the respondents in SEP litigation may employ to contest the issuance of ASIs in Chinese judicial proceedings, with particular attention accorded to the principles of comity and public interest. The article concludes that the invocation of international comity and public interest in SEP litigation will encounter a formalistic assessment by the Chinese judiciary due to potential conflicts with statutory provisions and the lack of a more context-specific analysis. As a result, in the absence of supra-national mechanisms that would address the problem of parallel litigation, there appears to be little room for judicial self-restraint.

The European Court of Human Rights—Can there be too much Success? A Comment

AbstractLike almost no other international human rights protection system, the system of the European Convention on Human Rights is institutionally consolidated. The present contribution briefly traces the genesis and development of the European Court of Human Rights and then turns to the examination of three challenges the Court is currently faced with. In the section on the lack of implementation of judgments, the approach of the German Federal Constitutional Court to the Strasbourg case law, which contrasts principled openness towards European human rights law with emphasizing constitutional identity, is analysed. Moreover, the contribution examines how this approach has been taken up by actors in the United Kingdom and Russia. The problem of the insufficient qualification of some candidates proposed by States is addressed in the section on the election of judges. A solution might be to formally integrate the members of the Advisory Panel into the official hearing of the candidates. The section on dynamic interpretation looks at the nexus between the Court’s interpretation of the Convention and the States’ acceptance of its jurisprudence. By transferring the interpretation of the Convention to an independent international authority, States relinquish part of their power. They will only accept this transfer of power permanently if the judicial interpretation by the Strasbourg Court remains consistent, comprehensible and plausible. The Court should therefore not act as a human rights’ ‘trendsetter’ or a ‘judicial activist’. Overall, three principles are decisive for an effective international human rights protection that meets with both the general and long-term acceptance on the part of the Contracting States and the undeniable needs of individuals to have their human rights and fundamental freedoms protected against unlawful State interference. These principles are the judicial self-restraint of the Court, the subsidiarity principle and a margin of appreciation left to the Contracting States.

Subsidiarity v. Autonomy in the EU

The principle of subsidiarity as construed by the Court of Justice and the Advocates General (AG) is not an autonomy clause. Article 5(3) Treaty on the European Union (TEU) aims to promote the efficiency of governance rather than the autonomy of the Member States (MSs) and of the subnational governments. Although a number of scholars emphasize the potential role of federal proportionality for the protection of the autonomy, the effectiveness of this principle is limited in practice due to the Court’s judicial self-restraint. In the EU the autonomy of national and subnational governments is protected primarily by the legal bases in the Treaty. The reasoning of the Court to delimit these legal bases largely overlaps with and absorbs considerations of subsidiarity that acquire a merely ancillary role. Subsidiarity, Court of Justice of the European Union, legislative competences of the European Union, legislative autonomy of the Member States, legal bases for the actions of the European Union, regions and local authorities in the European Union, efficiency of governance, federal proportionality

Self-Restrained Adjudicator Meets (not so) Self-Restrained Lawmaker: Danish Human Rights Protection Tested on the ‘Forced Marriage Presupposition Rule’

ABSTRACT The article examines the functioning and fragilities of the Danish system of assuring human rights compliance of legislation. The aim is to examine previous theoretical allegations about inadequacies of this system. In the context of the adoption and subsequent judicial review of the ‘forced marriage presupposition rule’ in family reunifications, the article marks the concrete steps at which the legislature and the judiciary adhered to a tendentious and evasive interpretation of human rights and was unwilling to consider or rebut the impact of new evidence or individual circumstances. Analysing four courts’ cases reviewing the presupposition rule, the article shows how the primacy of the legislature in assessing human rights combined with the judicial self-restraint apparently places the claimant in an argumentative inequality in the judicial proceedings. This and other findings mark the micro-level symptoms evidencing a compromised character of human rights protection in Danish migration law observable in the context of this case study.

Brazilian Supreme Court, judicial self-restraint, and educational policy: the homeschooling case (RE 888815)

Abstract: How do Brazilian Supreme Court Justices use the decision-making strategy of judicial self-restraint? Judicial self-restraint is a strategy whose fundamental premise sustain that, if possible, any Supreme Court should avoid ruling on constitutional issues, and resolve the cases before them on other (usually statutory) grounds to avoid the hard constitutional questions that would come with the other interpretation. When asked to decide on the constitutionality of homeschooling plans (RE888815), the Brazilian Supreme Court Justices entered a debate involving various aspects of the educational public policy cycle, moving away from the strictly constitutional issue. This research qualitatively analyzed this case, notably through content analysis tools, to verify how the judicial self-restraint strategy was used in the judgment of a relevant educational public policy issue.Keywords: Brazilian Supreme Court; educational policy; judicial review; judicial selfrestraint; homeschooling.Resumo: Como os Ministros do Supremo Tribunal Federal (STF) usam a estratégia de tomada de decisão denominada autorrestrição judicial? A autorrestrição judicial é uma estratégia cuja premissa fundamental sustenta que, se possível, qualquer Tribunal deve evitar se pronunciar sobre questões constitucionais e resolver os casos à sua frente por outros motivos (geralmente infraconstitucionais) para evitar as difíceis questões constitucionais que surgiriam com a outra interpretação. Quando solicitados a decidir sobre a constitucionalidade dos planos de educação domiciliar (RE888815), os Ministros do STF entraram em um debate envolvendo vários aspectos do ciclo das políticas públicas educacionais, afastando-se da questão estritamente constitucional. Esta pesquisa analisou qualitativamente este caso, principalmente por meio de ferramentas de análise de conteúdo, para verificar como a estratégia de autorrestrição judicial foi usada no julgamento de uma questão relevante de política pública educacional.Palavras-chave: Supremo Tribunal Federal; autorrestrição judicial; Educação domiciliar.

Belhaj, Justiciability, and the ‘Silhouette-Like’ Act of State Doctrine

This paper discussed the origin of the doctrine of judicial self-restraint where a defence of ‘Act of State’ is raised by a government on grounds of state sovereignty. The older cases raised international boundary and inter-state law issues. These could arise from a dispute over the territorial waters. Lord Wilberforce enunciated the principle as one where, “the courts will not adjudicate upon acts done abroad by virtue of sovereign authority.” But discomfiture in judicial circles with the foreign act of state doctrine nonetheless remained. Writing in 2002, Lawrence Collins has said that: “[t]he idea that some matters are simply not justiciable is not one which comes easily to lawyers and judges. But in the field of foreign affairs it is an idea which has gained much currency .....” It arises because of, “what may be described as sensitivity to foreign policy interests, and certainly not deference to the views or objectives of the executive.” This Paper discussed the question in relation to the case of Belhaj which came before the UK Supreme Court in 2018 , because it raised the timely issue whether, outside of the area of inter-state boundary disputes between nations, the ‘act of state’ doctrine could be invoked for a violation of a fundamental human right – for example an act of state torture. The UK Supreme Court has now given an emphatic and resounding answer to that question. This Paper discusses the implications of this decision, particularly in the context of national security concerns arising from terrorist activities and asks whether the sovereign power of the State to protect its citizens from terrorism has been weakened by this decision.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

Abstract The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

The Hesitant European? The Constitutional Foundation of Denmark’s EU Membership and Its Material Reality

The establishment of a supranational legal order in Europe and powerful European courts like the European Court of Human Rights (ECtHR) in Strasbourg and the Court of Justice of the European Union (CJEU) in Luxembourg, constitutes a rather dramatic challenge to the Danish legal and political tradition. In Denmark, the Parliament has the upper hand compared to other branches of government and is regarded as the ultimate symbol of democracy. Similar to other Nordic countries, Denmark has no tradition of judicial review and few national politicians, judges or civil servants have over the years questioned this state of affairs despite the process of European integration. Denmark has similarly been regarded as a bastion of Scandinavian legal positivism where statutes and political decision-making together with judicial self-restraint on part of the national judiciary are absolutely central. In this light the European constitutional development has been close to a revolution and profoundly challenged the Danish majoritarian tradition. The article digs into the Danish dilemmas, Denmark’s legal and democratic tradition, its EU opt-outs and not least its hesitant acceptance of the supremacy of European law.

Judicial Review of Discretionary Powers in the Activity of Historical Monuments Protection Bodies in the Polish Legal System

Abstract The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities – all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is the judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to show how Polish administrative courts approach the problem. What methodology of the review of discretion margin do they use? How do they solve the dilemma: who makes the final decision – the body or the court? Do they retain judicial self-restraint or are they ready and willing to interfere in the merits of the decision?

“Administrative Discretion”, “Power Of Appraisal”And “Margin Of Appraisal” In Judicial Review Proceedings Before The General Court

This contribution focuses on the discretion enjoyed by the EU administration when it implements EU law as well as the intensity of review of that discretion by the General Court. It is argued that “administrative discretion” should not be treated as a homogeneous concept, since different forms of discretion exist which do not call for the same level of judicial scrutiny. A distinction could be drawn between, on the one hand, the “discretion proper” or “power of appraisal” conferred on the administration by the Treaty or the legislature and, on the other hand, the “technical discretion” or “margin of appraisal” that merely results from judicial self-restraint in view of the complexity of the assessments carried out by the administration. While the General Court is bound to respect the former under the principle of separation of powers, in relation to the latter it should be open to the General Court to increase the intensity of its review when it considers this necessary and is in a position to do so.

Judical review of discretionary powers in the activity of historical monuments protection bodies. The experience under the case law of Polish administrative courts

The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities, all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to analyze how Polish administrative courts approach the problem. What methodology of the review of discretion margin they use? How they solve the dilemma: who makes the final decision – the body or the court? Do they retain the judicial self-restraint or rather they are willing to interfere in the merits of the decision?

Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?

In the recent Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament string of cases the International Court of Justice declined jurisdiction by holding that there was no dispute between the parties. This Article examines the Court’s treatment of the existence of a dispute (“EoD”) jurisdictional objection; it does not purport to analyze the Court’s broader reliance on jurisdictional doctrines as a general means of avoiding cases. From a doctrinal perspective, this Article argues that the Court’s interpretation of the EoD objection in those cases is unpersuasive. Instead, the Article contends that the Court has relied on the existence of a dispute objection as a covert or functional justiciability doctrine. That is, as a ground for discretionarily declining jurisdiction or, to borrow a term from private international law, as an escape device. The Article considers that such jurisdictional avoidance may be justified, doctrinally and normatively, as a form of principled avoidance. Normatively, the decision to rely on a procedural technicality to avoid going into the merits of a potentially explosive case may be seen as a valid exercise of judicial self-restraint – and one that can aid the Court navigate the tensions created by increased skepticism of international adjudication. And policy-wise, avoiding a case on a sensible subject-matter that touches on core aspects of defense and national security could be accepted as a way of side-stepping potential backlash.

JUDICIAL ACTIVISM OR SELF-RESTRAINT : SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT

The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self-restraint. Recent Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

The Status and Role of Legislation In South Africa as a Constitutional Democracy: Some Exploratory Observatio

This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy. First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers. Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead. Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.

The Judicial Individuality of Lord Sumption

This article offers a perspective from the United Kingdom (‘UK’) on the position of an individual judge, in order to illuminate the dynamics of judging on a final court of appeal. My aim is to examine the jurisprudence of Lord Sumption, a Justice of the United Kingdom Supreme Court (‘UKSC’). We shall see that, on precedent, Lord Sumption JSC’s view is essentially a conservative one, which perhaps ties into his Lordship’s views on judicial self-restraint more broadly. By ‘conservative’ in this context, I mean cautious about change, rather than any grander political claim.

Teria Dworkin Defendido o Ativismo Judicial?

Ao contrário do que argumentam os defensores da autocontenção judicial, Dworkin não propõe uma invasão injustificada e antidemocrática do Poder Judiciário nos demais Poderes, mas uma nova forma de pensar a democracia. A teoria do direito como integridade é uma visão moralizante da atividade jurisdicional pela qual é possível compreender e explicar melhor o direito, sobretudo nos casos difíceis. Portanto, apesar de propor uma atuação pode poder judiciário centrada em preocupações morais e não subserviente aos demais poderes, Dworkin não deve ser considerado um defensor do ativismo judicial.

The forgotten discipline of private international law: lessons from Kiobel v Royal Dutch Petroleum – Part 2

ABSTRACTThe landmark 2013 decision rendered by the US Supreme Court in Kiobel v Royal Dutch Petroleum has received worldwide attention from legal scholars because of its restraining effects on international human rights litigation. One surprising aspect of both the reasoning from the courts and the ensuing debate is the absence of private international legal theory. Instead, contemporary discourse has reconceptualised the private international conflict in either purely domestic or public international terms. In that sense, Kiobel and the debate it brought about are paradigmatic for US law as a whole: the discipline of private international law has been marginalised. This article pursues three objectives. First, it provides an analytical doctrinal account of the Kiobel controversy, using private international doctrine. Second, this account opens up a new middle ground for political compromise, escaping the apparent tertium non datur of human rights protection versus international judicial selfrestraint: courts can exercise responsive deference to both human rights and the principle of non-interference with foreign politics through the application of foreign substantive law. Third, the article emphasises the vital importance of private international law as a discipline comprising notably international jurisdiction and choice of law.

The forgotten discipline of private international law: lessons from Kiobel v Royal Dutch Petroleum – Part 1

ABSTRACTThe landmark 2013 decision rendered by the US Supreme Court in Kiobel v Royal Dutch Petroleum has received worldwide attention from legal scholars because of its restraining effects on international human rights litigation. One surprising aspect of both the reasoning from the courts and the ensuing debate is the absence of private international legal theory. Instead, contemporary discourse has reconceptualised the private international conflict in either purely domestic or public international terms. In that sense, Kiobel and the debate it brought about are paradigmatic for US law as a whole: the discipline of private international law has been marginalised. This article pursues three objectives. First, it provides an analytical doctrinal account of the Kiobel controversy, using private international doctrine. Second, this account opens up a new middle ground for political compromise, escaping the apparent tertium non datur of human rights protection versus international judicial self-restraint: courts can exercise responsive deference to both human rights and the principle of non-interference with foreign politics through the application of foreign substantive law. Third, the article emphasises the vital importance of private international law as a discipline comprising notably international jurisdiction and choice of law.

On the Obergefell Dissenters′ Selective Judicial Self-restraint

Abstract In its landmark decision in Obergefell v Hodges a five-Justice majority of the United States Supreme Court held that state laws depriving same-sex couples of the right to marry violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Four dissenting Justices - Chief Justice John G Roberts, Jr and Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr - criticized the majority’s ruling and analysis. Calling for judicial self-restraint and deference to the outcomes of democratic decision-making, the dissenters argued that same-sex marriage bans enacted by state legislatures did not violate the Constitution. This essay argues and demonstrates that the Obergefell dissenters have not restrained themselves in other cases in which they voted to strike down legislative enactments and did not defer to democratic decision-making. This selective restraint reveals that the dissenters have not been unwaveringly committed to judicial self-restraint, and raises the central question of when should the Court defer to legislatures in cases presenting constitutional challenges to state or federal laws.

The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?

Since its establishment in 1994, the South African Constitutional Court has been quite fearless in its citation of foreign precedents in its reasoning. Compared with that of similar adjudicative institutions elsewhere, the constitutional reasoning of the South African Constitutional Court is still in its infancy, but it has nevertheless earned itself high praise among observers worldwide. The Court has in particular been commended for some ground-breaking and courageous judgments which it handed down without casting either argumentative rigour or judicial self-restraint to the winds. Since its establishment in 1994 the Constitutional Court has cited foreign cases quite extensively. Although these cases deal with all matters of the law, especially human rights issues, the Constitutional Court's use of foreign cases in the area of religion is noteworthy.
 Against this background, this contribution remarks on the propensity of the Constitutional Court to look beyond its borders to deals with issues of religion within South Africa. The ultimate question is whether the notion of transjudicialism in the case of religion is detrimental to the reputation of the South African Constitutional Court or whether it is a characteristic of a court which is confident enough that its independence will remain intact in spite of its looking elsewhere for answers.