Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters

Abstract

This paper explores the dynamics of international judicial interactions in civil cases. It proposes a positive model of court-on-court encounters based on contract theory. It argues that this model provides a superior account of these interactions compared to the prevailing account. The dialogue model developed by international relations specialists and international lawyers posits transnational judicial networks that engage judges in a constitutive and constructive project of building the global rule of law. The paper demonstrates that this model does not capture contemporary judicial practice, rests on outmodes historical judgments, and is normatively problematic. Contract theory not only explains contemporary judicial practice, but also is normatively attractive as a basis for international and transnational judicial interactions.

Keywords: international civil litigation, international law, contract theory