Ensuring Compliance in a Global World
Private Regulation series
Edited by Fabrizio Cafaggi
Chapter 6: Multilevel Judicial Protection of ‘Rule of Law’ in Transnational Regulation Requires ‘Struggles for Justice’
Ernst-Ulrich Petersmann The law is not mere theory, but living force. And hence it is that Justice which, in one hand holds the scales in which she weights the rights, carries in the other the sword with which she executes it. The sword without the scales is brute force; the scales without the sword is the impotence of law.1 I. INTRODUCTION Globalization has decreased the scope of national regulatory powers and dramatically increased intergovernmental regulation and transnational private regulation (TPR) without adequate democratic, parliamentary and judicial ‘checks and balances’. Not only the effectiveness and enforceability of both TPR and public international regulation, but also their democratic legitimacy depend on judicial protection of constitutional rights of citizens and Rule of Law (RoL), with due respect for the legitimate diversity of national constitutional guarantees of human rights and democratic selfgovernance. In addition to dispute prevention, dispute settlement and judicial clariﬁcation of the contested meaning of legal rules and principles, national and international courts also engage in ‘judicial governance’ by adjusting ‘incomplete agreements’ and under-theorized legal systems to the changing needs of citizens and governance. The effectiveness of transnational RoL and multilevel judicial remedies depends on their active use by citizens and on ‘comity’ and cooperation among courts at national, transnational (e.g. in cases of arbitration), regional and worldwide levels, based on judicial justiﬁcation of multilevel protection of RoL by overlapping ‘principles of justice’, such as respect for common constitutional principles, ‘judicial balancing’ of conﬂicting human rights, and due process...
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