Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals

Beyond Fragmentation: Cross-Fertilization, Cooperation, and Competition among International Courts and Tribunals, Chiara Giorgetti and Mark Pollack, eds. (Cambridge University Press)

Temple University Legal Studies Research Paper Forthcoming

29 Pages Posted: 9 Sep 2020

See all articles by Chiara Giorgetti

Chiara Giorgetti

Richmond University School of Law

Mark A. Pollack

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

Date Written: August 20, 2020

Abstract

The international community in the 21st century is more legalized and more judicialized than at any other period in history. Yet today’s international legal order is also fragmented, leading to concerns about the proliferation of specialized legal regimes, adjudicated by an uncoordinated assemblage of international courts and tribunals. In this volume, we and our fellow authors explore international judicial cooperation, competition, and cross-fertilization “beyond fragmentation.” Existing scholarship on international legal fragmentation, we suggest, has moved through three phases in recent decades. In the first phase, practitioners and scholars reacted with alarm to the judicial proliferation of the post-Cold War years, which they feared would create systemic problems of overlapping and contested jurisdiction, as well as conflicting and divergent interpretations of law. Following this period of “postmodern anxieties,” the new century saw the pendulum swing towards towards a second, more optimistic school of thought, which empirically identified (and normatively championed) a series of techniques whereby international judges could “manage” fragmentation through dialogue and cross-fertilization, producing convergence and unity in international law. Most recently, in the opening salvos of a third wave, skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization.

Building on this debate, this volume interrogates the record of cross-fertilization, cooperation, and competition among international courts and tribunals. In doing so, we address three important themes. First, we examine the phenomenon of cross-fertilization in the area of procedural law, finding that that courts do indeed learn and borrow from each other in establishing procedural rules, which show signs of convergence. Second, we examine the more complex experience of cross-fertilization in substantive international law, where we find greater variation among international courts and tribunals in their willingness to refer and defer to others. Third and finally, we investigate the agents of cross-fertilization, including not only judges but also international governmental organizations, international court registries and arbitral secretariats, member states, litigants, and counsel. Each of these actors, we suggest, possesses mixed motives, weighing their (perhaps weak) interest in the coherence of the international legal system against their (perhaps dominant) interests in their own regional or substantive legal order or values, or indeed with simply winning their current dispute. The picture that emerges is one in which international judicial cross-fertilization is both real and important, but also highly variable and asymmetric across courts and issue-areas, and likely to remain so.

Keywords: international law, international courts, international tribunals, fragmentation, judicial dialogue, cross-fertilization, management, procedural law

JEL Classification: K33, F53, F55

Suggested Citation

Giorgetti, Chiara and Pollack, Mark A., Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals (August 20, 2020). Beyond Fragmentation: Cross-Fertilization, Cooperation, and Competition among International Courts and Tribunals, Chiara Giorgetti and Mark Pollack, eds. (Cambridge University Press), Temple University Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3678279 or http://dx.doi.org/10.2139/ssrn.3678279

Chiara Giorgetti

Richmond University School of Law ( email )

Mark A. Pollack (Contact Author)

Temple University - Department of Political Science ( email )

461 Gladfelter Hall
Philadelphia, PA 19122
United States

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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