Citations to Foreign Courts -- Illegitimate and Superfluous, or Unavoidable? Evidence from Europe

43 Pages Posted: 27 Sep 2013 Last revised: 29 Jan 2014

See all articles by Martin Gelter

Martin Gelter

Fordham University School of Law; European Corporate Governance Institute (ECGI)

Mathias Siems

European University Institute (EUI); University of Cambridge - Centre for Business Research; European Corporate Governance Institute (ECGI)

Date Written: September 24, 2013

Abstract

The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes that, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics of the practices, such as undercutting national sovereignty and the legitimacy of the legal system. At best, cross-citations provide a source of inspiration how to interpret national law. At worst, they are largely ornamental and marginally help to make a particular policy argument appear more persuasive.

This paper is part of a research project comprising three articles. The other two articles can be downloaded at http://ssrn.com/abstract=1719183 and http://ssrn.com/abstract=2063598.

Keywords: Cross-Citations, Supreme Courts, Legal Origins, Legal Culture, Comparative Law, Comparative Civil Procedure

JEL Classification: A12, A13, B52, C21, C24, K00, K41, P48

Suggested Citation

Gelter, Martin and Siems, Mathias, Citations to Foreign Courts -- Illegitimate and Superfluous, or Unavoidable? Evidence from Europe (September 24, 2013). American Journal of Comparative Law, Vol. 62, No. 1, 2014, pp. 35-85, Fordham Law Legal Studies Research Paper No. 2330419, Available at SSRN: https://ssrn.com/abstract=2330419 or http://dx.doi.org/10.2139/ssrn.2330419

Martin Gelter (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8752 (Phone)

HOME PAGE: http://www.fordham.edu/info/23135/martin_gelter

European Corporate Governance Institute (ECGI)

HOME PAGE: http://ecgi.global/users/martin-gelter

Mathias Siems

European University Institute (EUI) ( email )

Via Bolognese 156 (Villa Salviati)
Firenze, 50139
Italy

HOME PAGE: http://www.eui.eu/siems

University of Cambridge - Centre for Business Research ( email )

Top Floor, Judge Business School Building
Trumpington Street
Cambridge, CB2 1AG
United Kingdom

HOME PAGE: http://www.cbr.cam.ac.uk/people/research-associates/mathias-m-siems/

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

HOME PAGE: http://ecgi.global/users/mathias-siems

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