Research Handbooks on Globalisation and the Law series
Edited by Sabino Cassese
Chapter 14: Judicial regulation in the global space
This chapter analyses the ‘regulatory function’ of courts beyond the state. Like judges in national legal systems, judges at the global level often make law as they resolve disputes. This occurs essentially when disputes cannot be solved by reference to codified rules and criteria, and ultra-state courts are induced to create principles or to adopt particular judicial techniques; this may also happen in cases of contrast between different legal systems. Judicial regulation may take different forms, but is always characterized by the existence of a common denominator – the application of principles and rules in light of the absence or insufficiency of codified or legislative criteria. On this view, courts beyond the state ‘fill the gaps’ deriving from the above-mentioned deficiency, i.e. ‘situations of jurisdictional interaction not fully covered by any specific international law instrument governing the interplay between the relevant international courts and their national counterparts’. For the purposes of this analysis, at least four aspects can be examined to explain why judicial regulation – as briefly above – is relevant from the perspective of Global Administrative Law (GAL). First, courts have developed an increasing number of functions, and this increase appears to be closely dependent on the strengthening of ‘judicial globalization’; in this sense, there is a directly proportional relationship between judicial globalization (the proliferation of global courts) and judicial regulation.
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