Commentator
Professor Paolo Palchetti, University of Macerata, Italy
Leader of the assessment
Professor Trygve Bergsåker, Departement of Private Law
Supervisor
Professor Mads Andenæs, Department of Private Law
For outline and draft text, contact Johann Ruben Leiss.
Abstract
Are we governed by an international judicial network that operates in the shadow as a supreme court of the international legal order - a hierarchical superior “invisible court” at the apex of international adjudication? Is this judicial network detached from legitimacy and institutional restraints, uncoupled from systems of checks and balances, a network that recruits its judges from an international “juristocracy”? Is the label of judicial cooperation and dialogue merely a veil under which an international elite makes politics without control? If so, how could we make the invisible visible?
The project intends to make this alleged (partly) invisible substructure of international adjudication visible. The thesis will describe and analyse in depth the different structural elements of judicial cooperation and integration between international courts on the horizontal level and between international and national courts on a vertical level.
The starting point is based on the first hypothesis that the existing, often informal and overall uncoordinated general framework and practice of judicial interaction conflicts with requirements of judicial legitimacy and related institutional and procedural constraints. As a second hypothesis it presumes that - though informal judicial dialogue seems to have become the silver bullet in academic discourse for solving jurisdictional and legal conflicts - formal or semi-formal institutional coupling is a more appropriate guarantee to meet the challenges of modern inter- and transnational adjudication.
It therefore starts with a comprehensive and systematic mapping of the positive legal framework and practice of judicial interaction between international courts and between national and international courts. It aims at revealing the overarching structural elements and approaches of judicial interaction, such as formal hierarchy (arguably Articles 103 and 94 of the Charter of the United Nations, read in a constitutional way), constitutional integration, systemic institutional integration, coordination by judicial restraint and principles of comity, and informal dialogue.
In its second part the thesis analyses these different modi of judicial cooperation, dialogue and interaction in the light of the ongoing discourse on the dichotomist concepts of constitutionalism and pluralism. Here a focal point concerns the interaction and relation of judicial procedure and legitimacy of judicial authority.
In its final part the thesis aims at developing new strategies by which the challenges of an uncoordinated and fragmented adjudication can be met. Here, among other approaches, a transferal of the “Solange”-approach to other jurisdictional conflict as a semi-formal coupling, as well as the broader introduction of advisory opinions and other institutional interlacing (such as a “Court of Conciliation"), will be discussed.