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Globalization Process Of Judicial Essay

3045 words - 12 pages

Globalization, Processes Of Judicial

Globalization, Processes Of Judicial

The connection between globalization and dispute resolution by means of various types of procedures has several aspects beyond simply judicial processes involved in globalization. Three significant aspects of globalization have a direct influence upon dispute resolution:

The growing globalization of legal culture, due to the fast circulation of information about legal topics, particularly in some domains, such as contract law, commercial law, and tax law. Of course, a worldwide common legal culture does not exist and perhaps will never exist, but the era of only national and local legal cultures is over.

Millions of legal transactions are made-in cyberspace as well as in more traditional forms such as written commercial contracts-among persons and companies located in different countries all around the world.

Correspondingly, a growing number of transnational disputes arise between parties that do not "belong" to the same national jurisdiction.

The combination of these and several other factors may produce various effects for dispute resolution and judicial processes in the globalized world. These effects may be analyzed by distinguishing three different experiences: (1) so-called judicial globalization; (2) procedures for the resolution of interstate disputes concerning mainly commercial matters; and (3) the resolution of individual transnational disputes.

Judicial Globalization

In the last few years, the expression "judicial globalization" has been frequently used to designate a phenomenon that is connected with the globalization of legal culture as well as of commerce and economies, and that is facilitated by the worldwide circulation of information concerning the resolution of legal disputes. It consists of the broadening practice of courts that refer to judgments delivered by foreign courts, by quoting them and also by borrowing from their arguments and principles to support and justify their own judgments.

This practice is especially frequent and significant in specific areas of the world, the most important example being that of Europe, where supranational and national courts often refer to each other. At a more general level it emerges, for example, in fields such as those concerned with the recognition and enforcement of human rights. For human rights, cross-fertilization of constitutional courts is especially relevant, as is the "transjudicial" reference to international law that is frequently made by national courts, although they are not formally bound to apply the international rules or principles to which they refer to support their decisions.

Although there are "visions" imagining a worldwide cooperation among courts in a unified global system, so far the reality of judicial globalization is interesting but not really a global trend. One may wonder-realistically-whether those visions will...

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