Judicial Globalization: New Development or Old Wine in New Bottles?

I. INTRODUCTION In the last few years a number of articles have been published in American law journals on what has been called judicial globalization.1 That term is used to describe the phenomenon of high court judges (whether international, regional, or national) entering into a global conversation by referring to and borrowing from each other and-similar to political leaders-gathering information as they see each other at special meetings or even at summits. Academic literature has so far predominantly focused on human rights and certain criminal law issues such as capital punishment or abortion. This article includes economic law questions. It will first explain that globalization has lead to a homogeneization of legal problems and of legal responses to those problems. It will then discuss the judicial conversation among European high courts. Subsequently, the article will address the question of whether a conversation of judges takes part on the global level. Next, methodological and practical problems will be dealt with. Finally, the issue of whether judicial globalization constitutes a new development will be discussed. In times of globalization, legal problems of the First and of the Third World tend to be compared, in particular in the field of human rights and in certain areas of criminal law due to the increased similarity of social debates, which is favored by advances in global communication. Issues like assisted suicide, abortion, hate speech, gay and lesbian rights, environmental protection, privacy, and the nature of democracy are being placed before judges in different jurisdictions at approximately the same time.2 Economic law problems tend to arise in similar ways, especially in advanced societies and economies, such as the United States, the European Union, the countries of the European Free Trade Association, Canada, and Japan. To a certain extent, this may also be true in the case of threshold economies, i.e., less developed countries that are on the brink of becoming industrialized. Operators who are globally active sometimes face identical legal problems in all or most of the jurisdictions in which they are active. For instance, they produce worldwide, sell their goods and services worldwide, file patent and trademark applications all around the globe, pursue the same or similar marketing strategies, participate in mega-mergers, participate in globally operating cartels, and the like. For a long time, the responses of individual legal orders to these developments were, as a consequence of the concept of a nation-state, different. Increasingly, however, there are fields in which the law in various jurisdictions is (more or less) homogeneous. In this context, the phenomenon of export of law is to be mentioned. Historic examples are the export of the English common law to what has become the Anglo-Saxon world; of the French Civil Code to countries like Italy, Spain, and Portugal (and from the two latter countries to Latin America); and of the German Civil Code to Japan and Greece. After World War II, the most important example has been the export of U.S. law to other parts of the world-in particular, to Japan and to Germany and from Germany to the rest of Europe, especially the European Community (EC).3 The idea of antitrust has been of particular importance. One will remember that, until 1945, Germany was a classical cartel country and that, in France and Italy, the idea of antitrust is relatively recent. Also, the concept of product liability and new types of contracts such as leasing, franchising, or factoring are U.S. exports.4 In particular in the last two decades, there has been a general development toward convergence of many areas of the law. The harmonization process of the European Union with its ramifications in the countries of the European Economic Area and the Eastern European countries that are on the brink of joining the EU stands out. For the sake of order, it is to be noted that Switzerland is refusing to join the European Union and the European Economic Area, but the government launched a comprehensive program of so-called autonomous implementation of EC economic law fifteen years ago. …

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