I. Introduction
In England and in the Netherlands, the national highest courts seem to be developing new practices under the effects of judicial globalisation or internationalisation.Footnote 1 This is particularly apparent in the increased interaction of judges of the national highest courts with judges from other legal systems, an interaction which does not only concern the study of international and foreign legal materials,Footnote 2 but also the exchange of legal ideas between judges in transnational networks.Footnote 3 Judicial globalisation thus has induced the development of an outward-looking approach of national courts which appeared to be in decline since the rise of the nation state.Footnote 4 However, it remains unclear to what extent this trend of globalisation has really affected court practices. Normative frameworks for judicial decision-making generally allow judges a considerable amount of discretion regarding the sources which they take into account.Footnote 5 Therefore, foreign legal materials may play a role both in the heuristic phase of the judicial deliberations and in the phase of the legitimising of the decision through the court's reasoning. The question thus arises in which circumstances judges do use foreign legal sources, both when they have a legal obligation to take these sources into account and when they consider that, even in the absence of an obligation to do so, taking account of foreign legal sources could be useful.
Certain authors have made comments about the citation of foreign law and they have given reasons why judges cite foreign law.Footnote 6 Their studies focus on the public debate among judges and academics regarding when judges ought to be able to use foreign law. This article, which takes interviews with judges in the highest courts of two western legal systemsFootnote 7 as its starting-point, aims to explain the background to this public debate and to the case law. Since judicial deliberations are not public and not all considerations made by individual judges are revealed in the judgments of the courts, talking to the judges themselves was required to establish which judicial approaches to the use of foreign law exist and how these approaches affect the practices in specific courts. This article will show that a judge's personal approach, i.e. the approach taken by a judge as representative of this judge's feeling or opinion regarding his role, is a highly determinative factor as regards both the impact granted to binding legal sources, such as international and EU law, and the use of non-binding legal materials, such as foreign case law, in the deciding of cases.
Part of the conclusions of this article corroborate the results of empirical research carried out by Flanagan and Ahern, who conducted a survey among 43 common law supreme court judges concerning their use of foreign law in deciding constitutional rights cases.Footnote 8 However, the research here presented also give rise to different observations, notably through its contestation of the conclusion of Flanagan and Ahern that judges are predominantly opportunistic when referring to foreign law.Footnote 9 In a general manner, the qualitative interview methodology used for the current research had the advantage that it enabled participants to express themselves with more nuance than would have been possible in a quantitative anonymous questionnaire approach such as used by Flanagan and Ahern. Also, the use of interviews as a research method allowed asking additional questions to better interpret the answers given. Finally, the group of judges who participated was sufficiently large and varied to identify qualitatively the views and approaches present in the analysed courts.Footnote 10 The chosen research method thus avoided any drawbacks related to the quantitative analysis of a small research sample, in particular as regards the reliability of conclusions drawn about the significance or weight of specific answers given.
Because of its focus on the general practices of a common law court and a civil law court, this research was able to include the field of law and legal tradition as factors which influence the use of foreign law. The courts studied are the Supreme Court of the UKFootnote 11 and the Supreme Court of the Netherlands (Hoge Raad der Nederlanden).Footnote 12 These two Supreme Courts are currently facing important changes which, at least in part, seem to be related to the effects of globalisation in national legal systems. The comparability of the two courts follows from their shared background in western liberal democracies, i.e. states which share the traditions of democracy, rule of law, human rights protection and open government,Footnote 13 and from the similarities in these courts' position in the national legal systems in which they are functioning.Footnote 14 In England, interviews were held in November 2009 with seven of the then eleven Supreme Court judges and one recently retired Law Lord. In September and October 2009, interviews were held at the Supreme Court of the Netherlands with thirteen of the then 41 judges, selected from each of the three Chambers of the Court. The participation rates suggest that the information obtained through these interviews is sufficiently comprehensive to represent the whole of judicial views and approaches concerning the use of foreign law which can be identified in these national highest courts. Given the specific working methods of the Dutch Supreme Court, interviews were further held with five Advocates-General at this Court.Footnote 15 The aim of these interviews was to gain more insight into the way in which legal materials are introduced in the judicial deliberations.
The questions which were discussed focused on several main lines of inquiry. These concerned, first of all, the judges' personal experiences with foreign legal elements in their decision-making. Secondly, questions were asked concerning the judges' participation in the international relations of their court, for example through judicial networks and exchanges between courts. Further questions concerned the types of foreign legal materials used in the judges' decision-making, and the practical aspects of the search for and the use of these materials in judicial deliberations and reasoning. The aim of this line of inquiry was inter alia to find out to what extent judicial assistants, litigants, legal counsel and academics have an influence on the judges' use of comparative law. To get a better idea of the influence of the judges' personalities on their decision-making, some questions were asked concerning their personal background. These questions concerned the judges' legal training and their professional experiences before being appointed on the Supreme Court. Finally, questions were put to the judges regarding the perception of their role in the balance of powers at the national level and in the global legal context.
It has to be remembered that the aim of the research was to identify different judicial views and approaches to the use of foreign law rather than to analyse quantitatively the practices in the courts. Therefore, as well because of the confidentiality of the interviews, the research results will be presented in the form of a narrative rather than in quantitative terms. The interviews made clear that the use of international and foreign legal materials in deliberations and in judgments, beyond the mandatory use of these materials, depends on three main factors: legal tradition, language and the prestige of foreign courts. The working methods and style of reasoning of the analysed courts influence the citation of foreign law in their judgments. However, the voluntary recourse to comparative law currently does not seem to follow a specific logic. Examples found in the case law of the courts are few,Footnote 16 and the presentation of this practice by the interviewed judges is mostly of an anecdotal nature. Furthermore, even though a theoretical distinction can be made between materials which are formally binding and materials which are not, the interviews reveal that when making use of comparative law the majority of the judges focus more on finding relevant arguments for their decision than on the status of the source from which these arguments originate. This is particularly the case during the process of discovering the law, where arguments from comparative law are valued for the insights which they provide regarding the possible interpretation of the law. In the process of justifying the decision, judges still look to binding legal sources first but do sometimes mention additional arguments based on non-binding comparative legal sources. These results suggest that further reflection should be given to the methodology for the judicial use of foreign legal materials, and – in light of the legitimacy of judicial functioning – that it should be investigated to what extent the changing practices of the courts can be related to the constitutional framework which governs their functioning in the national legal system.
This article will start with a description of the current developments facing the Supreme Courts in England and the Netherlands and the position of these courts in their respective national legal systems. A comparison of the two courts' jurisdiction, organisation and working methods will make clear to what extent these elements have an influence on the judicial use of foreign law. Then, the judges' points of view on the use of foreign legal materials will be presented as it transpired from the interviews. It will be made clear how the judges on the national highest courts perceive their role and their functioning in a globalised legal context. Finally, some conclusions will follow regarding the lessons to be drawn from these interviews. It is my hope that the observations made about judges' considerations regarding the use of foreign legal sources will help to understand and inform the process of judicial decision-making of national highest courts in the globalised legal context.
II. Context and Comparability
The national highest courts in the UK and in the Netherlands present an excellent case for the analysis and comparison of judicial attitudes with regard to globalisation. This can be demonstrated through an overview of current institutional developments concerning these courts, which will be followed by a brief discussion of the comparability of the two courts on the basis of their jurisdiction, organisation and working methods.
A. Highest courts in flux
At the national level of the British legal system, the Supreme Court for the UK was established in 2009 to replace the Appellate Committee of the House of Lords. This reform, set in motion by the Constitutional Reform Act 2005,Footnote 17 can be seen as ‘the last step in the separation of powers’ in the British legal system.Footnote 18 Another significant transformation of the judiciary's role in the domestic balance of powers occurred already earlier on with the adoption of the Human Rights Act 1998 (HRA 1998).Footnote 19 This Act introduced the judicial competence to declare Acts of Parliament incompatible with fundamental rights provisions transposed from the European Convention on Human Rights (ECHR). It induced a change in the judicial and political attitudes regarding the protection of human rights and the balance of powers in the British legal system.Footnote 20 The late Lord Bingham of Cornhill is considered a key figure in the coming about of these reforms.Footnote 21 He and other judges at the highest national level have taken part in public discussions regarding the role of the Supreme Court in this evolving legal and political context. In public speeches and in academic articles, judges have presented their views on current changes which affect the role and functioning of the national highest court.Footnote 22
On the other side of the Channel too, the highest judiciary's role in the domestic legal system is a topic of ongoing discussion.Footnote 23 Judges of the Supreme Court of the Netherlands are actively involved in discussions regarding their Court's role in the present-day context. Recent debates have focused on the envisaged internal reform of the Supreme Court's organisation,Footnote 24 and the visibility of the Court in the Dutch society.Footnote 25 The current President of the Supreme Court Geert Corstens, who took office on 1 November 2008, was hailed as a leader in these debates.
At the transnational level, both the Supreme Courts in the UK and in the Netherlands are actively reconsidering their position vis-à-vis the European courts in Luxembourg and Strasbourg. The development of the European integration in the context of the European Union (EU), starting in the 1950s, redefined national courts as ‘decentralised Community judges’.Footnote 26 The accession of the UK to the EU ‘proved to be a catalyst for change and for bringing international law directly into the legal system of the UK’.Footnote 27 The British Law Lords have actively sought to create a ‘dialogue’ with the European Courts, both as regards the implementation of EC law in the national legal order and as regards the interpretation of the European Convention on Human Rights through the HRA 1998.Footnote 28 Some English judges have addressed specific issues regarding Europeanisation, such as the difficulties concerning the convergence of the English common law system and civil law systems in Europe,Footnote 29 and the implementation of the case law of the European Court of Human Rights (ECtHR) concerning terrorism and human rights.Footnote 30 Also, some judges have expressed their views concerning the use of comparative law in the English courts.Footnote 31
In the Netherlands, the national courts are considered to have taken a very open approach to the European jurisprudence, based on Sections 93 and 94 of the Dutch Constitution.Footnote 32 Still, the national highest courts are considered to be an ‘anchor’ for both the national and the international legal order.Footnote 33 Awareness of this role was emphasised in a speech of the President of the Dutch Supreme Court Corstens, held at the opening of the ECtHR's judicial year 2010. The Supreme Court President stressed the ECtHR's role as a leader in the protection of human rights in Europe, and specified that the ECtHR can only fulfil this role if member states to the Convention give effect to the Court's judgments and if national judges conform to these judgments.Footnote 34
It thus appears that the effects of globalisation have an important influence on the functioning of the highest courts in England and in the Netherlands, both as regards their interaction with institutions at the national level and with courts in other jurisdictions.
B. Organisation, jurisdiction and working methods of the Supreme Courts
Each of the two courts under scrutiny has its own particularities, which should be taken into account when comparing the judicial views and approaches in these courts regarding the use of foreign law.
1. Organisation and jurisdiction
The UK Supreme Court's jurisdiction regards the final appeal of civil cases in the UK and criminal cases in England, Wales and Northern-Ireland.Footnote 35 Appeal is possible in cases where leave to appeal has been granted by the lower court (in most cases this is the Court of Appeal of England and Wales), or where a case has been admitted by the Supreme Court itself. The criterion for case selection is the ‘general public importance’ of arguable points of law.Footnote 36 No constitutional review of legislative acts exists, but the HRA 1998 goes a long way in this direction.Footnote 37 In 2009, the Appellate Committee of the House of Lords disposed of 104 petitions for leave to appeal and had a case load of 40 cases.Footnote 38 Its successor the Supreme Court disposed of 69 applications for permission to appeal and had a case load of 30 cases.Footnote 39
The Dutch court system is based on the French model. The Supreme Court is a ‘court of cassation’, which means that the Court's jurisdiction is restricted to the judgment of questions of law, and does not include the judgment on facts.Footnote 40 The court holds final jurisdiction in civil, criminal and tax law cases in the Netherlands.Footnote 41 Administrative law cases in the last instance are dealt with separately by special courts, among which the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak Raad van State) deals with the most significant number of cases. The Supreme Court, like all courts in the Dutch legal system, does not have competence for the constitutional review of legislative acts.Footnote 42
The UK Supreme Court is a small organisation compared to the Dutch Supreme Court. At the time of the interviews, there were eleven Supreme Court judges. Most of these judges are former Law Lords, who took up office in the new Supreme Court in October 2009. The twelfth position in the Court was filled up by the appointment of Sir John (now Lord) Dyson as Justice of the Supreme Court. Cases are judged by a panel of five judges, and occasionally – at the discretion of the President – by a panel of seven or nine judges.Footnote 43 The use of a larger panel is considered desirable by some of the interviewed judges in order to avoid inconsistencies between panels. However, this is difficult to realise because of the time constraints the Court has to deal with. The judges currently have support from seven judicial assistants, who work cooperatively.
The Dutch Supreme Court at the time of the interviews consisted of the President, six Vice-Presidents, 31 Supreme Court judges and 3 extraordinary judges. The judges are distributed over three chambers: the Civil Law Chamber, the Criminal Law Chamber and the Tax Law Chamber. Cases are judged by a panel of three or five judges. There is a Procurator-General's Office at the Supreme Court, which consists of the Procurator-General, the Deputy Procurator-General, and 21 Advocates-General. The Procurator-General's Office provides an ‘opinion’ (conclusie) to the Court in most cases (rather like that of the Advocate General before the European Court of Justice), and thus acts as an advisor to the Court on how to decide the questions of law raised in the case at hand. The Advocates-General work in one of the three fields of competence of the Supreme Court. The Court has a support staff, which is organised in the Court's Research Service (Wetenschappelijk Bureau). Judges in the Criminal and Tax Law Chambers have personal judicial assistants. In the Civil Law Chamber, two assistants are available for all judges together. In 2009, judgments were given in 527 cases by the Civil Law Chamber, in 3464 cases by the Criminal Law Chamber and in 999 cases by the Tax Law Chamber.Footnote 44
On the basis of the particularities of their jurisdiction and organisation, some differences can be expected regarding the use of foreign legal sources in these two courts. These differences relate mostly to the number of judges and the case load that the Courts have to deal with. The judges in the UK Supreme Court are formally not specialised and will regularly sit on cases with each of their colleagues. The judges in the Dutch Supreme Court act within the context of a specific chamber, and their exchange of ideas will thus be restricted to a specific field of law and a less varied group of colleagues. Because of this internal specialisation, judicial ideas about the use of foreign legal sources might differ between the specific chambers. As concerns case load, in contrast to the UK Supreme Court, the Dutch Supreme Court currently has no formal possibility of case selection,Footnote 45 thus limiting the time which judges are able to spend on individual cases and on the insights which foreign law might offer in these cases. The one exception to this rule concerns the possibility for the Advocates-General in tax law cases (but not in criminal or civil law cases) to select the cases for which they will write an opinion addressed to the Court.Footnote 46 The Court does have the possibility to dismiss appeals with a shortened reasoning if it considers that there are no grounds for cassation and the case does not raise any legal questions which should be answered in the interest of legal uniformity or the development of the law.Footnote 47
2. Working methods
The procedures of the UK Supreme Court can be found in the Court's Rules,Footnote 48 as well as in the Practice Directions issued by the President of the Court.Footnote 49 The Supreme Court judges hand down individual opinions for the judgment of each case. These individual opinions are often lengthy and can include the discussion of foreign legal materials and academic writings. Indeed, the Practice Direction (Citation of Authorities) provides that:
Cases decided in other jurisdictions can, if properly used be a valuable source of law in this jurisdiction. At the same time, however, such authority should not be cited without proper consideration of whether it does indeed add to the existing body of law.Footnote 50
The judges of the Supreme Court for the UK feel that counsel should bring forward all legal materials which are relevant for deciding the case, including foreign judgments and academic resources concerning foreign law. The judges sometimes do conduct additional research themselves or ask a judicial assistant to look for useful sources. Some judges put more time and effort into this kind of research than others. With regard to the comparison with non-common law jurisdictions, the judges in general conduct research by themselves, i.e. without the help of judicial assistants. Therefore, the selection of this kind of foreign sources seems to be very much dependent on the personal background of the judges, in particular concerning the languages they master and the data they have access to.
Interestingly, the move to the new Supreme Court was a reason for the judges to rethink their way of working. During the interviews, several judges mentioned that the new Supreme Court building invites to a more collegiate approach. The judges' offices are now closer together and it is easy for one judge to walk in and discuss a case with his colleague. Furthermore, the move of the Law Lords out of Parliament, where members speak for themselves and joint speeches hence would have been odd, has made it possible to modify the system of separate opinions. Since October 2009, the judges have been experimenting with a system in which one judge writes the lead opinion and the other judges on the panel may choose to concur with this judge, to write a separate opinion, or to write a dissenting opinion.Footnote 51 One judge explained that the selection of the reporting judge takes place on the basis of several factors, including whether this judge is part of the majority, has a special interest in the case, and is not too busy. By changing its working methods in this way, the Court aims to create more transparency. Indeed, it is felt that working with majority opinions leads to more consistency and gives clearer guidance to the lower courts on how to operate in the future. Transparency, also vis-à-vis the general public, is further enhanced because the new way of working is closer to the procedures of the ECtHR. Even so, all of the interviewed Supreme Court judges in England gave much importance to the possibility of writing an individual opinion. They feel that this possibility enables them to express thoughts of their own and to produce judgments which are readable to the audience. One judge indicated that the use of foreign legal materials need not be hampered by the increased use of majority opinions. An individual judge might still choose to write a separate opinion about foreign law if this judge is not satisfied with the majority opinion.
The practice of the Supreme Court of the Netherlands is in many ways the exact opposite of the English way of working. On the basis of the principle of the secrecy of deliberations, the Supreme Court works with collective judgments. Slight differences exist between the ways in which each of the Court's Chambers has organised the judicial deliberations.Footnote 52 A common feature is that case files are studied by all judges on the panel which was assigned to the case. When preparing the deliberations, the judges study in particular the opinion of the Advocate-General and the additional materials put forward by him.Footnote 53 Selected foreign legal materials can form part of this preparation. In 5-judge cases, the case is discussed during the deliberations of the competent full Chamber. Much weight is attached to the internal coordination in the court which is brought about by the participation of all judges of a Chamber in these deliberations. For each case, one judge is assigned to write a draft judgment. This draft is sent back and forth between the judges on the panel for the case until they agree on a final version.Footnote 54
As concerns the reasoning of its decisions, the Dutch Supreme Court used to have a culture of short, apodictic judgments like the French Cour de cassation, from which it inherited its working methods. However, over the years the practices of all three chambers of the Supreme Court have evolved and judgments are now reasoned more extensively than in the past. An average judgment will consist of two or three pages, while the reasoning in more difficult cases can be much longer.Footnote 55 However, as a rule, no citations of foreign law are included in the reasoning of judgments. In light of the relatively concise style of reasoning, it is felt by the judges that the opinion of the Advocate-General adds to the transparency of the judgments. This opinion is published alongside the judgment and holds a more detailed consideration of the arguments, sometimes including a comparative legal research.
The judges in the Dutch Supreme Court thus get most of their information through the opinion of the Advocate-General. Beside the information provided in this way, they depend almost entirely on the research done by their assistants and on their own research to find out about foreign legal materials which might help to decide a specific case. The interviewed judges indicated that the citation of foreign judgments or academic literature by counsel is very rare. As in the British Court, some judges are more inclined than others to carry out extra research of foreign legal materials.
III. The Judges' Views (1): The Types of Foreign Legal Materials Used in Judicial Decision-making
The interviewed British and Dutch judges feel that they have to deal with legal materials coming from many different sources outside of the national legal system. Most of the interviewed judges distinguished between the ECHR, EU law, other international legal materials, and judgments of courts in foreign jurisdictions. Some judges further mentioned other points of reference, mostly concerning non-binding regulatory instruments. The views of the judges regarding these different legal materials will now be presented.
A. The European Convention on Human Rights (ECHR)
An interviewed judge estimated that reference is made to the ECHR currently in half of the cases that come before the UK Supreme Court. In a more general sense, several judges in the UK Supreme Court indicated a growth in the amount of public law cases which are brought before the Court. This trend started during the 1960s, and can be explained by the increased influence of the ECHR and the Strasbourg jurisprudence in the domestic legal system, as well as by the increased use of the remedy of judicial review against the public authorities. The increased importance of administrative redress, as well as the influence of the ECHR and EU law on the development of the domestic law on this topic, is corroborated by research carried out by the Law Commission.Footnote 56
The judges confirm that before 1998 the ECHR already was very influential in the English legal system. Nonetheless, the interviewed judges feel that with the adoption of the HRA 1998 a radical change took place, also in the minds of judges, concerning the attitude towards this topic. Further sources suggest that this change towards a human rights culture might have been stimulated by the significant training which judges and government officials in the UK received with regard to the ECHR.Footnote 57
Despite the status and influence of the HRA 1998, and hence of the ECHR, it is not clear if judgments of the ECtHR have the authority of precedents in the British Court's decision-making. A grey area has emerged here because of the ambiguous status of the HRA 1998. Most of the interviewed judges agreed with the view of Lord Bingham, who considered that English judges are bound by the ECHR and the case law of the ECtHR.Footnote 58 However, one judge explicitly contested this view, and stressed that the HRA 1998 has not entrenched the ECHR in the British Constitution. This judge pointed out that the judges only have an obligation to take account of the treatyFootnote 59; they are not obliged, and do not have competence, to strike down a legal provision which violates the HRA 1998.
A surprising influence on the recourse to ECtHR case law is the acknowledgment by the British judges of a certain ideological affinity with the Strasbourg Court. Notwithstanding reservations expressed concerning the quality of the ECtHR's judgments, in comparison with other courts the Strasbourg case law is considered to fit the British Court's ideological framework regarding human rights protection relatively well. An interviewed judge mentioned that the UK Supreme Court used to refer often to the Supreme Court of Canada, which developed an important human rights case law after the introduction of the Canadian Charter of Rights and Freedoms in 1982.Footnote 60 However, the judge mentioned that the UK Supreme Court is now shifting its attention to Strasbourg, as it considers the Canadian Supreme Court's jurisprudence too liberal. A study of the UK Supreme Court's case law shows that in 2010 Canadian case law still was referred to in 8 cases. Citations of ECtHR judgments could be found in 14 cases decided in 2010.
In the Netherlands, many Supreme Court judges indicated the significance of the ECHR for their decision-making. On the basis of the Constitution, the ECHR is directly applicable and takes precedence over national legal provisions.Footnote 61 The ‘review of conventionality’ of legislation in the light of the ECHR has been used by the Dutch courts to fill the hiatus left by the constitutional prohibition of judicial review of legislation in the light of the Dutch Constitution.Footnote 62 The judges considered that the influence of the ECHR is especially visible in the area of criminal law. In more than a few cases, the Supreme Court has overturned its established case law on the basis of an ECtHR judgment.Footnote 63 This happened for example in the Kostovski case, which concerned the use of anonymous witnesses in criminal trials.Footnote 64 Another example concerns the more recent Salduz judgment,Footnote 65 which was at the basis of the Court's considerations regarding the defendant's right to consult a lawyer prior to police interrogations.Footnote 66
B. EU law
Legislation coming from the European Union is very influential in the British and Dutch Supreme Courts' decision-making. The influence of EU law in the English legal system has developed gradually. An interviewed judge explained that until the 1980s the national attitude was against accepting the primacy of EC law. This changed with the Factortame jurisprudence, in which the European Court of Justice (ECJ) reconfirmed that the national courts, in this case in the UK, should set aside a rule of national law which conflicted with EC law,Footnote 67 and the Law Lords accepted the duty to interpret an Act of Parliament in conformity with the applicable EC law.Footnote 68
The interviewed judges on the Dutch Supreme Court confirmed that EU law is very important in the decision-making at the level of the national highest court. EU directives are a predominant source of law in the field of tax law, in particular in VAT cases.Footnote 69 EU law also often plays a role in cases concerning tenders and in intellectual property cases. In the field of criminal law, EU law is considered inter alia regarding the prevention of double prosecution (ne bis in idem), regarding the application of the Schengen agreement, and regarding the judicial cooperation in criminal matters within the former ‘third pillar’ of the EU. In general, the Dutch judges strive to interpret national law in conformity with EU law as much as possible. Only occasionally, a preliminary question is sent to the ECJ in order to obtain a clarification on the meaning of a provision of EU law. Some of the interviewed judges in the Dutch Supreme Court estimated that in their court this happens about five to ten times a year and more often in civil law cases than in criminal or tax law cases. The actual number of references for a preliminary ruling appears to correspond with the estimation given by the judges. Between 2005 and 2009 the Dutch courts respectively sent 36, 20, 19, 34 and 24 references per year to the ECJ, while on average 1 out of 4 (183 on a total of 743) preliminary references from the Dutch courts were sent by the Supreme Court.Footnote 70
As a practical matter, both the English and the Dutch judges sometimes find it difficult to apply EU law correctly. The English judges consider the judgments of the ECJ to be difficult to read. One judge characterised the ECJ judgments as ‘Delphic’. Another judge criticised the ‘flabby reasoning’ of the ECJ, caused by the need to find a compromise between the judges deciding the case. Lord Bingham's analysis already showed that differences in the style of judging may sometimes lead to misunderstandings.Footnote 71 Concerning the content of the ECJ's case law, several Dutch judges remarked that the ECJ's case law is inconsistent, which makes it a puzzle for the national judges to solve. Furthermore, the judges feel that the ECJ's CILFIT criteria for ‘acte clair’Footnote 72 do not prevent different approaches of national judges regarding the submission of cases for preliminary rulings, and thus undermine the uniform interpretation of EU law. An example concerned the legal definition of peepshows as theatre or cinema for tax purposes. This question had arisen both in the Netherlands and in Belgium, and in the Dutch case was solved by the Supreme Court itself,Footnote 73 while in the Belgian case a preliminary ruling was asked of the ECJ.Footnote 74 In both decisions, the private or collective nature of the services was pointed out as the determining factor for answering the legal question.
C. International legal materials other than the ECHR and EU law
International conventions play a role in particular in some areas of the law. Both in England and in the Netherlands, the Supreme Court judges mention the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, which is often applied in conflict of law cases.Footnote 75 Other conventions which feature in litigation before both Courts include the Conventions issued by the Hague Conference on Private International Law.Footnote 76
In the Netherlands, differences can be noticed between the chambers of the Supreme Court related to specific topic matters which contain an international aspect. In civil law cases, the relevant international conventions mainly concern the solution of conflicts of law and uniform commercial law. Treaties which were mentioned by the judges are the Hague Convention on the Civil Aspects of International Child Abduction, the Vienna Convention on the Law of Treaties and the Convention on the Contract for the International Carriage of Goods by Road (CMR). In the Criminal Law Chamber, many cases involving international treaty law concern extradition. The transfer of sentenced persons is regulated by the Law on the transfer of the execution of sentences (Wet overdracht tenuitvoerlegging strafvonnissen or “WOTS”). Another treaty which was mentioned several times is the UN Convention against Torture. In tax law cases, relevant sources mentioned by the judges include bilateral treaties concerning the avoidance of double taxation. For the interpretation of these treaties, use is made of the Vienna Convention on the Law of Treaties as well as of the OECD Model Tax Convention on Income and on Capital (MTC). A judge specified that in the case law, it occurs also that mention is made of the official commentary of the OECD regarding the MTC. A search of the published judgments of the Supreme Court since 1999 yielded almost 150 cases in which the OECD model convention was cited, in most cases in the opinion of the Advocate-General.
As a special example of treaty interpretation, several of the interviewed Dutch judges mentioned the Benelux cooperation with Belgium and Luxembourg, to which the Netherlands is a party. The Benelux Court of Justice, which started functioning on 1 January 1974, is particularly active in the field of intellectual property law. It settles preliminary questions sent by the member states' courts concerning the uniform interpretation of the common legal rules established between the treaty parties. Some judges of the Dutch Supreme Court take part in the decision-making of the Benelux Court of Justice, together with colleagues from the two other countries.Footnote 77
D. Judgments of foreign courts
For the British Supreme Court judges, the first criterion for the selection of foreign judgments concerns legal family, in the sense of the shared background with other common law systems. Sources most often referred to come from Commonwealth legal systems and from the US legal system. Concerning the Commonwealth legal systems, in particular the case law of the highest courts of Australia, Canada and New Zealand is considered helpful. The accessibility of these sources, as regards language and availability, forms an extra reason for the judges to look at these foreign sources first. To a lesser extent, a foreign court's prestige can give reason for the judges to take this court's case law into account. In this respect, the judges occasionally cite judgments coming from courts in France, Germany or Italy. Dutch judgments are sometimes referred to as well. This can be seen for example in the Fairchild judgment, in which the Law Lords cited the Dutch Supreme Court's case law regarding employers' liability for asbestos related diseases.Footnote 78 Regarding human rights cases, the British judges mentioned the case law of the Inter-American Court of Human Rights as a source of inspiration. However, concerning these ‘non common law sources’ the problems of language and availability are felt to be significant.
Some examples given by the British judges shed more light on the way in which they use foreign judgments. The Reynolds case, first, concerned the liability for libel in the light of qualified privilege for political events. The question to be answered by the House of Lords was if a libellous statement of fact made in the course of political discussion is free from liability if published in good faith or if liability may also arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to have published the information as it did.Footnote 79 In this judgment, explicit mention was made of solutions adopted in other countries. In particular, attention was paid to the US, where the Sullivan caseFootnote 80 is the leading authority on the topic at hand. The overview of foreign case law in the judgment further included an analysis of Canadian, Indian, Australian, South African and New Zealand case law.Footnote 81 The consideration for looking at these foreign sources in this specific case seemed to be to show that no uniform or non-controversial case law exists in the area in question. Lord Nicholls stated that:
Before turning to the issues raised by this appeal mention must be made, necessarily briefly, of the solutions adopted in certain other countries. As is to be expected, the solutions are not uniform. As also to be expected, the chosen solutions have not lacked critics in their own countries.Footnote 82
Another example is the Jewish Free School case, which concerned the admission policy of a religious school.Footnote 83 The school's policy was to give preference to those whose status as Jews is recognised by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR), i.e. ‘those children whose mothers satisfy the matrilineal test or who are Jews by conversion by Orthodox standards’.Footnote 84 The question to be answered by the Supreme Court was whether this policy constituted a violation of section 1 of the Race Relations Act 1976. In deciding this case, the nine judges on the special panel of the UK Supreme Court paid attention inter alia to the case law of the Supreme Court of Israel.Footnote 85 Several members of the panel indicated that extra comparative legal research was done on the request of the judges themselves.
Extra research was also demanded by the judges in a number of cases concerning the freezing of assets of suspected terrorists. In the Supreme Court's judgment of 27 January 2010, reference is made to the measures adopted in Australia and in New Zealand regarding the implementation of the applicable UN Resolutions.Footnote 86 The relevant ECJ judgment in Kadi v. Council of the European Union Footnote 87 is analysed in the light of Canadian and US case law. An interviewed judge indicated to have suggested looking at Canadian case law, as this might give guidance on how to judge the case. However, the cited foreign case law was considered not to be decisive for the case at hand.Footnote 88
In a more general sense, the British judges considered that citations of foreign law mostly occur in human rights cases and in private law cases. In human rights cases, the judges hope to find guidance in case law concerning the interpretation of the ECHR or concerning comparable instruments for human rights protection. In contract and tort cases, the shared background with other common law legal systems is thought to make legal comparison often useful. One of the judges indicated that in particular tort law is still relatively untouched by statute law and thus leaves room for comparison with other common law jurisdictions. Appreciation is voiced for Australian case law in particular, which is mentioned by several judges for its high quality. Australian case law was further mentioned as a source of inspiration for the judgment of asylum and refugee cases. When looking at the published judgments of the English judges in recent years, citations to Australian judgments can indeed be found in a number of cases. An inventory of the Law Reports of 2008 reveals that in 37 published cases of the Law Lords in which foreign law was cited, reference to Australian judgments was made in nine cases, yielding a total of 11 Australian judgments cited in the judicial opinions.Footnote 89
The use of foreign law is less frequent in criminal law cases. However, several judges indicated a personal interest in French or German case law. One judge remembered having looked at French case law in a case concerning the balancing of the anonymity of parties and the interest of media coverage in the light of the right to a fair trial and the principle of open justice. Another judge, speaking about the same legal question, mentioned having searched German law and having made inquiries with personal contacts in Germany in order to find useful information, which then might give rise to a question to counsel to base arguments on this information. In the decision given on 27 January 2010, Lord Rodger, who delivered the unanimous judgment, remarked that:
Unfortunately, no real additional help with the question of anonymity orders can be obtained from examining the practices of courts in Europe when issuing judgments. In all the principal systems, at least, steps can apparently now be taken, where appropriate, to anonymise reports of matrimonial disputes and disputes relating to children. Apart from that, however, what is striking is the variety of approaches.Footnote 90
This observation is followed by an overview of French, Italian and German case law.Footnote 91 The responses of the interviewed judges and the reasoning in the judgment suggest that the comparative analysis in this case was carried out with the aim to get a clearer insight into the state of the domestic law. The observed variety of approaches can be considered a justifying argument for the decision taken, which stays very close to the facts of this specific case. Furthermore, the foreign case law gives an indication of factors to be taken into account when balancing the right of privacy against the rights of the press. In this way, the knowledge of the practices in other legal systems seems to have helped the judges to mark out the relevant questions during the process of discovery.
For the Dutch Supreme Court judges, foreign judgments which are taken into account in the judicial deliberations mostly originate in France and Germany, and sometimes in England or the US. Several judges mentioned to consult the German Bundesgerichtshof's case law in cases regarding commercial law, e.g. the law on bills of exchange, and in intellectual property law cases. The Supreme Court considered for example the case law of the Bundesgerichtshof in deciding whether LEGO, after the expiry of its patent, could stop the copying of its toy building blocks through an action based on precise imitation (‘slaafse nabootsing’).Footnote 92 Another example concerned the comparison of Dutch and German judgments in cases where interpretation of the CMR, which forms part of transnational uniform commercial law, is required. An Advocate-General specialised in civil law cases mentioned that specific legal systems, such as the US and Germany, are known for their expertise with specific topics and hence are looked at frequently for guidance. The prestige of these legal systems and their courts here seems to be the main factor for the legal comparison.
In criminal law cases, most of the interviewed judges consider that references to foreign judgments occur more often with regard to questions of substantive law than with regard to questions of procedural law. These references seem to have for an aim to better identify the current state of the domestic law. Examples which were mentioned concern the comparison with German law regarding the absoluteness of the right of non-disclosure;Footnote 93 the explanation on rights of appeal (Rechtsmittelbelehrung); and the interpretation of the concept of self-defence (‘noodweer’).Footnote 94 In a case concerning the insult of a group (‘groepsbelediging’), extra literature and case law was added to the judges' file by the reporting judge, and on the suggestion of another judge a judgment of the British Law Lords was used in the deliberations in chambers. Concerning the right to a fair trial, US law is considered instructive in addition to the ECHR.
Concerning tax law, in some cases the case law of courts in other OECD member states is analysed to find guidelines for the application of the OECD Model Tax Convention. Furthermore, the example was mentioned of a case in which the Court of Appeal for England and Wales was contacted because it seemed that pending preliminary questions of this Court to the ECJ might be of use for the decision of the Dutch case as well. In yet another case, the judgment of a Greek court was deemed relevant for a decision regarding unjustified VAT reclaims. However, here the problem of understanding the context and language of the decision came up.
Since references to foreign case law and legal doctrines in principle do not occur in the published judgments of the Dutch Supreme Court and are relatively scarce in the opinions of the Advocates-General, it is difficult to assess the impact of comparative law on the decisions taken. The Supreme Court's Annual Report 2007–2008 does address ‘international dimensions’ in the Civil Law Chamber's case law.Footnote 95 However, comparative legal research is merely mentioned as a tool used to identify the meaning of rules of uniform private law, and only two specific examples are given of cases in this category in which the Supreme Court's decision was based on the use of international and foreign law.Footnote 96 Still, the information obtained from judges and Advocates-General confirms that comparative law at least plays a role in the phase of discovery before the judgment is written.
E. Other types of foreign legal sources
Finally, judges in the Supreme Courts sometimes take account of non-binding ‘soft law’ instruments which are considered to have a certain prestige. A Dutch judge in tax law cases mentioned that regulations of the International Accounting Standards BoardFootnote 97 have been used by the Dutch Supreme Court as a guideline for its decision-making. Likewise, the aforementioned OECD Commentary to the MTC is considered an aid to the interpretation of this treaty.Footnote 98
In the Dutch Supreme Court's Civil Law Chamber, a source of reference sometimes used are the Principles of European Contract Law (PECL) developed by the Lando Commission. A search of the published judgments of the Supreme Court yields 17 judgments of the Civil Law Chamber, given between 2002 and 2010, in which reference was made to the PECL or commentaries of these Principles. All references are to be found in the opinions of the Advocates-General.Footnote 99 The interviewed judges and Advocates-General asserted that the PECL are used for guidance only. An Advocate-General mentioned the example of assessing the termination for breach of contract, taking account of fundamental interests of the parties. The analysed case law of the Supreme Court corroborates this view. In a case concerning the interpretation of the termination clause included in a contract of employment, Advocate-General Huydecoper observed that two kinds of interpretation identified in the Dutch academic literature in some foreign legal doctrines are considered to be identical.Footnote 100 In a footnote to this observation, he remarked that:
Notwithstanding many differences, the sources of law for our neighbouring countries indicate a remarkable unanimity as regards the idea a) that contracts are to be interpreted in the first place on the basis of the intentions of the parties, which unless proved otherwise have to be interpreted in light of the standard of the ‘reasonable man’; and b) that an addition to what was agreed upon in the absence of proved or reasonably assumed intentions of the parties has to take place with reference to what reasonably judging parties in the given case would have assumed.Footnote 101
The influence of these observations on the deliberations and the decision of the Supreme Court is not evident from the judgment, since the judgment was given with the shortened reasoning allowed by section 81 of the Judicial Organisation Act.Footnote 102
References to the PECL can also be found in a small number of judgments of the Law Lords and the UK Supreme Court. A search of BAILII yielded five judgments given between 2001 and 2009.Footnote 103 However, these references appear to have no impact on the interpretation of domestic law. They are used as guidance for the interpretation of European law, such as the Unfair Contract Terms Directive,Footnote 104 or to highlight the differences between the English and the continental legal traditions. This latter argument transpires for example from the opinion of Lord Hoffmann in Chatbrook Ltd. v Persimmon Homes Ltd., in which the judge observed that the PECL and related instruments ‘reflect the French philosophy of contractual interpretation, which is altogether different from that of English law’.Footnote 105 One of the interviewed UK Supreme Court judges further considered that taking into account the PECL or the Draft Common Frame of Reference (DCFR) developed at the initiative of the European Commission would not make sense, because this source is too vague and academic in comparison with the domestic law. This judge considered that the DCFR might develop into an optional system in Europe ‘as an ever closer union’.Footnote 106 However, it is this judge's belief that practical hindrances to commerce will remain as a result of efficiency considerations and costliness. The judge therefore considered that the DCFR can be no more than an inspiration for the Court.
IV. The Judges' Views (2): The Use of Foreign Legal Materials in Judicial Decision-making
Having defined the types of foreign legal materials which judges in the UK and Dutch Supreme Courts use in their decision-making, it will now be investigated to what extent the use of these materials follows a specific logic. A distinction can be made between considerations of principle and practical considerations regarding the use of foreign legal materials. Furthermore, the considerations of the judges can be traced back to contextual factors, which affect the awareness of and the need that is felt to use foreign legal materials.
A. Considerations of principle
Foreign law can play a role in the phase of judicial deliberations as well as in the argumentation of the judgment handed down in a specific case. In each of these phases, different considerations are at stake.
1. The use of foreign legal materials in judicial deliberations
Binding sources of international and European law will have to be applied if relevant for the decision of a specific case. Leaving aside this situation, sometimes a specific approach to the use of foreign legal sources is dictated by the subject matter of the case at hand. In extradition cases, for example, the starting-point is mutual trust between states. Judges in the Supreme Court of the Netherlands mentioned that the Court, because of this mutual trust, will try to grant requests for extradition to the largest possible extent. This involves the comparison of the national law and the law of the foreign legal system which sent the request for extradition. The study of the law of a foreign legal system here is an essential element to the judgment of the case at hand and the consistency of the interpretation of legal provisions is an important aim of the judicial decision-making.
In contrast, the interviewed judges consider that a comparative exercise which is only aimed at the collecting of information is less influential. The authority of one's own judgments seems to be the most important reason to refer to foreign legal materials. Some of the English judges admitted to be in favour of ‘cherry picking’, i.e. the practice of referring only to foreign legal materials which support the decision which the judges have in mind, while not discussing foreign legal materials which point in a different direction. The judges are aware of the criticism which might be made of this ‘picking out one's friends from the crowd’, as one judge put it, citing Chief Justice Roberts of the US Supreme Court.Footnote 107 However, the British judges attach much importance to the search of the most persuasive arguments for the judgment of the case at hand, regardless of the origins of these arguments. With regard to the Commonwealth systems, it is a practice of the British judges to use judgments coming from these systems as persuasive precedents.
The interviewed Dutch judges in general feel that foreign legal materials brought to their attention deserve a full discussion. Like their British counterparts, the Dutch judges feel that the guiding influence of foreign legal materials does not push them to follow the solution found in another legal system. An interviewed judge pointed out that the weighing of arguments in a specific Dutch case might, and often will, lead to a different result than achieved in the foreign cases with which a comparison is made. An example put forward by several of the judges concerns the Dutch Supreme Court's case law regarding the doctrine of conditional intent (‘voorwaardelijk opzet’). Legal questions about the interpretation of this doctrine arose in cases concerning the alleged attempt to commit manslaughter, e.g. through the wilful transmission of HIV infectionFootnote 108 or through the wilful causation of traffic accidents.Footnote 109 Concerning the application of this doctrine in new circumstances, the judges of the Criminal Law Chamber have sought inspiration in German law, and in the HIV cases they also studied French, Austrian, Canadian and Australian sources.Footnote 110 Regarding the HIV cases, a balancing act was required between the policy preference to keep these cases outside of the criminal law process, on the one hand, and the legal acceptance of a broader conception of ‘conditional intent’, on the other hand. Several Dutch judges mentioned that the German approach to this question was influential on the Court's decision-making, but that in the end a different solution was chosen for the Netherlands.
As regards the aim of using foreign legal materials in judicial deliberations, the interviewed judges indicated that several motives play a role, on their own or in combination. The use of foreign legal sources is considered useful by the English and Dutch judges, first of all, when the case to be decided holds particular public importance. Secondly, foreign legal materials are considered helpful when judges want to obtain better knowledge or a yardstick for the judgment of the case at hand. Thirdly, judges measure themselves with other courts and want to meet the same quality standards as their ‘peers’ in other jurisdictions. Finally, the research of foreign legal materials allows judges to spot trends regarding the evolution of the law in other legal systems and to determine their own position regarding these trends.
2. The use of foreign legal materials in judgments
The interviewed judges in the UK, on the one hand, pointed out that they cite all arguments which they consider to be persuasive. Indeed, in the common law conception, the judge feels that he owes a duty to counsel to explain why their arguments are not accepted. The judge is very courteous to the parties and their counsel, and his judgment can even be considered as an excuse to the losing party and its counsel.Footnote 111 The attitude of the British judges in particular has consequences for the use that is made of judgments from foreign courts. The judges' idea is that arguments for their reasoning may be found in decisions of foreign judges just as well as in other legal sources. If an argument is found in a foreign judgment and used in the reasoning of the case at hand, it is only courteous to mention the author, as one Supreme Court judge stated. However, foreign judgments are considered to have no binding value of precedent. Several judges pointed out that the citation of foreign judgments is often used merely to buttress the decision which was taken on the basis of binding legal sources.
In the Netherlands, on the other hand, most judges expressed the fear that the discussion of foreign judgments in their decisions would give rise to criticism as concerns the legal systems to which reference is made: why look at one system, but not at another? References to foreign judgments would thus risk weakening the authority of Supreme Court judgments. Indeed, the discussion of foreign judgments would not fit the Dutch tradition of judgments, which might not be apodictic anymore but are still reasoned more ‘economically’ than is the style in the common law tradition. Moreover, citations of case law already are rare in the Dutch Court's case law, as no formal system of precedent exists in the Netherlands.Footnote 112 However, it is felt by the judges that the citation of foreign judgments in the decisions of the Court would be a bridge too far. The conclusions of the Advocates-General, which are published alongside the Court's judgment and sometimes contain a discussion of arguments from foreign law, are considered sufficient to give more insight into the background for the Court's reasoning.Footnote 113 In this way, it is made clear to some extent which foreign sources have played a role in the Court's decision-making. A famous example concerns the Baby Kelly case regarding a ‘wrongful life’ claim, i.e. a claim for damages in the name of a severely handicapped child born as a result of an incorrect diagnosis during the mother's pregnancy.Footnote 114 In his conclusions for this case, Advocate-General Hartkamp included an extensive discussion of inter alia French and German case law.
Summarising, the interviewed judges in England and the Netherlands indicate that references to foreign legal materials are frequent in cases with an international aspect, e.g. cases concerning extradition or the conflict of laws. This frequency is related to the direct relevance of these foreign legal materials to the solution of the case at hand. The citation of foreign legal materials also takes place in cases where relevant European law or case law of the ECJ or the ECtHR is available and has to be implemented in the domestic legal system by the national judges. Sometimes reference is made to the legal system at which a specific judgment of one of the European Courts was directed. References to other foreign legal materials are less frequent and do not seem to occur in a systematic way. Although the use of foreign legal materials is not always easily apparent in the published judgments, the interviews make clear that foreign law is studied and discussed and if not persuasive at least has a guiding role in the deciding of some domestic cases. Moreover, many of the interviewed judges indicated that they feel that the transnational context will become more important in the future. These judges stress the importance for the national highest courts to remain up to date and reflect on their own position in this evolving global legal context.
B. Practical considerations
All interviewed judges noted some practical difficulties which they perceived to be important when contemplating the use of foreign legal materials.
First of all, language skills can be an obstacle for doing comparative legal research. This seems especially true for the British judges. Only a limited number of the interviewed judges indicated that they feel confident enough to consult materials in French or German. These judges had acquired knowledge of the language and legal system of other countries in their earlier lives and careers. In the Dutch Supreme Court, most judges feel able to consult sources in English, French or German. However, language was considered problematic when it comes to the use of judicial assistance. In fact, a number of judges mentioned that they feel that their judicial assistants do not always master foreign languages on a sufficient level anymore. Interestingly, the Court seems to offer possibilities to invest in the education of judicial assistants in this respect. An Advocate-General mentioned to have sent a judicial assistant of Caribbean origin, who had never learnt German in school, to take a German language course in the Netherlands.
Secondly, the comparability of legal systems was mentioned as a matter of concern to most judges, both in England and in the Netherlands. In order to make use of foreign legal materials in a correct way, one has to understand the context in which foreign judgments have been handed down. Also, one has to know which materials to consult besides the judgments of foreign courts. An interviewed judge observed that for understanding German law it is necessary to study not only judgments of the German courts, but also relevant academic commentaries and handbooks.
Thirdly, the judges indicated that the weight of foreign judgments is always relative. Instead of merely counting the amount of legal systems which adopted a certain solution, one should consider if this majority includes legal systems which are particularly influential in one's own national legal system. At the same time, one should make sure that one's own legal system does not end up in an isolated position, in particular in areas of the law which are of general importance.
Fourthly, it was observed that some legal questions are particular to a specific legal system and thus do not occur elsewhere. For example, the Belgian right to appeal concerning an unnecessary detention on suspicion (‘voorlopige hechtenis’) is particular to the Belgian legal system.Footnote 115
Finally, besides the comparison of contemporary legal systems, also the method of historical comparison carries risks. An interviewed judge mentioned that the term ‘people’, for example, holds a very different meaning in Roman-Dutch law than it does in the present-day Dutch context. One should be aware of this difference when turning to historical sources for inspiration or guidance.Footnote 116
C. The influence of context
Beside considerations of principle and practical considerations, the use of foreign legal materials is influenced by the context in which individual judges are functioning. Observations on the basis of the interviews can be linked to a wider theoretical perspective.
1. Observations on the basis of the interviews
First of all, account should be given to the fact that the judges of the Supreme Courts in England and in the Netherlands carry out their work in a context of changes induced by the trends of Europeanisation and globalisation. Europeanisation, i.e. the increasing scope and influence of EU law and the ECHR in national legal systems, has led to the development of a ‘dialogue’ between the national highest courts and the Luxembourg and Strasbourg courts.Footnote 117 Moreover, the number of binding foreign legal sources with which the English and Dutch judges have to deal has increased in the framework of the EU and the Council of Europe. Globalisation has an influence on the growth of judicial networks and on the development of other forums where judges can get in contact with their colleagues from foreign jurisdictions or where they can get access to the judgments of foreign courts.Footnote 118 The sensitivity of judges to possible uses of foreign legal ideas and experiences thus is enhanced.
However, concerning the use of non-binding foreign legal materials currently no systematic approach can be identified. The research presented in this article shows that significant influences on the selection of materials are the legal family from which they originate, i.e. common law or civil law, and the prestige of the foreign court whose judgments are taken into account. Nonetheless, the consultation of foreign judgments and academic literature concerning foreign law depends to a large extent on the individual judge's background, language skills and interests. Indeed, the background of judges seems to be a significant factor for determining the use which is made of foreign legal materials. Judges with a background in academia seem to be more open to the consultation of academic writings on foreign legal systems. These judges also seem to have a better knowledge of foreign languages. This was in particular clear in the UK, where the judges with an academic background more often indicated to have knowledge of German and French than the other judges did. It remains to be seen to what extent the attitudes of the judges can also be categorised on the basis of personal characteristics, such as a more practical or more theoretical inclination to judging, more or less responsiveness to the needs of society, or other factors.
2. A theoretical perspective
Insights from legal theory and from constitutional law can help to establish the significance of these contextual factors. To understand and facilitate the judicial use of foreign legal materials regard needs to be had to the legal and cultural aspects of the judicial function. From the legal perspective, the functioning of the courts in a specific legal system under the effects of globalisation is influenced by the ‘constitutional flexibility’ of this legal system, i.e. the relative openness of the legal system regarding the expression of normative changes in its constitutional framework.Footnote 119 The increased interconnectedness of legal orders, manifested inter alia in the use of foreign legal materials, will blossom in national legal orders more or less easily depending on the extent to which the national constitution enables or constrains such a normative change. Moreover, the exchange of ideas and experiences will be easier between legal systems which belong to the same legal family.
These legal possibilities and constraints on judging go hand in hand with the cultural particularities concerning the functioning of judges in each specific legal system. This cultural aspect concerns the openness of the legal system in general, and the factors which reinforce this openness. In the framework of constitutional norms, it is related to the ‘constitutional conventions’, i.e. the unwritten constitutional norms which affect principles, determine the possible interpretations of legal norms, or formulate unspoken rules.Footnote 120 An example of such an unwritten constitutional norm is the principle of the sovereignty of Parliament, which underlies the English legal system. Constitutional conventions, and their evolution, are also at play with regard to the use of foreign legal materials by judges. As a convention, justice is still seen essentially as a national public service. Judges consider references to non-binding foreign legal materials as additional rather than essential to their judgment. This explains why these non-binding foreign legal materials are not used explicitly as formal justification of judicial decisions. However, the increase of meetings and exchanges between judges helps them to consider the use of foreign legal materials as legitimate and interesting. This has led to more awareness and sensitivity of judges to the transnational context.
V. Concluding Remarks
The interviews with judges in the Supreme Courts of the UK and the Netherlands reveal that international and foreign law play an increasingly important role in the judicial decision-making of these national highest courts. Judges are faced with an increasing number of binding foreign legal materials which require application and interpretation. Ever more often they also use non-binding foreign legal materials as a source of inspiration, and sometimes also to find additional supporting arguments for the decision in a specific case. In this article, it has been shown which views and approaches to the use of foreign law can be identified in the English and Dutch Supreme Courts. By relating the interviews to the relevant case law and other available public information, a picture emerged of evolving judicial views and practices in the national highest courts. In addition to the established literature on the judicial use of foreign law, the article in particular makes visible the variety of views within specific highest courts and the lack of a systematic approach to the use of foreign legal materials.
During the interviews, several judges expressed a wish for the development of such a systematic approach. This paper gives the preliminary outlines for the establishment of a systematisation of this kind through the classification of types of foreign legal materials and their use in deliberations and judgments, as well as the identification of considerations of principle and practical considerations regarding the judicial recourse to foreign law. A next step will be to analyse how the judicial views and approaches towards globalisation affect the highest courts' constitutional position, at the national level as well as in relation to courts in other legal systems and at the international level. Furthermore, in light of the finding that judges' backgrounds, experiences and personal opinions play an important role in their use of foreign legal materials, more insight into the current practices of the highest courts can be gained through an analysis based on legal-theoretical, sociological and psychological theories on judicial decision-making.Footnote 121 Finally, the practices of other national highest courts should be studied in order to gain more insight into specific contextual aspects of judicial globalisation.
