Interpreting Multi-Sourced Equivalent Norms: Judicial Borrowing in International Courts
MULTI-SOURCED EQUIVALENT NORMS IN INTERNATIONAL LAW, Tomer Broude & Yuval Shany, eds., Hart, 2010
Posted: 12 Jul 2010 Last revised: 22 Jul 2010
Date Written: September 30, 2009
The paper looks at the practice of judicial borrowing – the 'transplanting' of legal reasoning developed in one jurisdiction by another jurisdiction – and assess its relevance to the treatment of MSENs (using case studies from EFTA and MERCOSUR court decisions). It then discusses the policy implication of acts of judicial borrowing involving MSENs, cautioning against the challenge it offers to judicial independence and institutional legitimacy.
Keywords: Judicial Dialogue, Judicial Borrowing, Homogeneity, MERCOSUR, EFTA, European Economic Area, European Court of Justice
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