The relationship of the EC courts with other international tribunals: Non-committal, respectful or submissive?

Common Market Law Review

Volumn 44, Issue 3, 2007, Pages 601-627

  Bronckers, Marco ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

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EID: 49249112244     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (138)

1. See Art. 300(7) EC.
2. For example, the Geneva Convention and the Protocol relating to the status of refugees and other relevant treaties, concluded by the Member States, by virtue of the reference in Art. 63(1) EC.
3. See Case C-162/96, Racke, [1998] ECR I-3655. The CFI has also given effect to customary international law after first transforming it into a general principle of Community law. See e.g. Case T-115/94, Opel v. Austria, [1997] ECR II-39. See Mengozzi, "The jurisprudence of the Court of Justice and the Court of First Instance of the European Communities", in Sacerdoti, Yanovich and Bohanes (Eds.), The WTO at 10: The Contribution of the Dispute Settlement System (Cambridge, 2006) p. 474;
4. Wouters and Van Eeckhoutte, "Giving effect to customary international law through European Community law", at 26 et seq. (Institute for International Law Working paper No 25, June 2002), available at www.law.kuleuven.ac.be/iir/nl/wp/WP/WP25e.pdf (arguing in favour of the CFI's transformation approach).
5. E.g. Case C-286/90, Poulsen, [1992] ECR I-6019 (EC regulation on fisheries conservation interpreted consistently with, inter alia, the Convention on the Law of the Sea);
6. Case C-377/98, Netherlands v. European Parliament and Council, [2001] ECR I-7079 (reviewing EC biotechnology directive against, inter alia, Convention on Biodiversity).
7. See Case T-306/01 and T-315/01, Yusuf et al. v. Council, [2005] ECR II-3533, para 231. This judgment, currently on appeal, has received mixed reactions. See the annotation of Tomuschat, 43 CML Rev. (2006), at 537;
8. Garbagnati, "The Court of First Instance and the protection of human rights in the fight against terrorism: A case of bravery or recklessness?", 8 Eur. Law Reporter (2005), 402.
9. E.g. Case C-344/04, The Queen (IATA, ELFAA) v. Department of Transport, [2006] ECR I-403 (provisions of the Montreal Convention on air passenger rights will prevail over inconsistent provisions of secondary EC legislation; no conflict found). For a rare example where the CFI found such a conflict and struck down EU secondary legislation, see Opel v. Austria, cited supra note 3 (declaring an EC safeguard measure incompatible with the EEA Agreement and the principle of legitimate expectations).
10. Case 36/75, Rutili, [1975] ECR 1219.
11. E.g. Case C-265/03, Simutenkov, [2005] ECR I-2579 (giving direct effect to the EC-Russia Partnership Agreement of 1997);
12. Case C-469/93, Chiquita Italia, [1995] ECR I-4533 (giving direct effect to the Lomé Convention).
13. On the denial of direct effect to the WTO see e.g. Case C-149/96, Portugal v. Council, [1999] ECR I-8395.
14. On Treaty-consistent interpretation in relation to WTO law see e.g. Case C-53/96, Hermès, [1998] ECR I-3603.
15. This case law, of course, has been much debated in legal literature. For a recent sample, with references to other writings, see Kuijper and Bronckers, "WTO law in the European Court of Justice", 42 CML Rev. (2005), 1313-1355.
16. For relatively rare examples see Case T-231/04, Greece v. Commission, judgment of 17 Jan. 2007 (referring to the 1926 judgment of the Permanent International Court of Justice in the German interests in Polish Upper Silesia case, as well as the subsequent practice of the ICJ), nyr;
17. Racke, cited supra note 3 (referring to the 1997 judgment of the ICJ in the Gabcíkovo-Nagymaros Project case);
18. Yusuf, cited supra note 5 (referring to the 1984 judgment of the ICJ in the Nicaragua case).
19. See Jacobs, "Judicial dialogue and the cross-fertilization of legal systems: The European Court of Justice", 38 Texas Int'l Law Journal (2003), 547, 553.
20. Broude, "Between pax mercatoria and pax europea: How trade dispute procedures serve the EC's regional hegemony", papers.ssrn.com/sol3/papers.cfm?abstract-id=724641 (2005);
21. a shorter version will be published in Stephan (Ed.), The Law and Economics of the European Union (2007).
22. See also Ramírez Robles, "Political & quasi-adjudicative dispute settlement models in European Union Free Trade Agreements: Is the quasi-adjudicative model a trend or is it just another model?", WTO Staff Working Paper ERSD-2006-09 (Nov. 2006), available at www.wto.org.
23. Garcia Bercero, "Dispute settlement in European Union Free Trade Agreements", in Bartels and Ortino (Eds.), Regional Trade Agreements and the WTO Legal System (Oxford, 2006), pp. 383-405.
24. For a recent example where the ECJ draws its own conclusions see Case C-301/04 P, Commission v. Tokai, [2006] I-5915 (overruling earlier judgment of the CFI).
25. See also the opinion of A.G. Geelhoed in this case, delivered on 19 Jan. 2006, who engages in some detail with the case law of the ECtHR. See generally Douglas-Scott, "A tale of two courts: Luxembourg, Strasbourg and the growing human rights acquis", 43 CML Rev. (2006), 29;
26. Rosas, "Fundamental rights in the Luxembourg and Strasbourg courts" in Baudenbacher, Tresselt and Orlygsson (Eds.), The EFTA Court: Ten Years on, (Oxford and Portland, 2005) p. 163.
27. This would change, it has been argued, once the EC accedes to the European Convention on Human Rights. That step would subject the ECJ to the ultimate jurisdiction of the ECtHR. See Lenaerts, "The Court of Justice of the European Communities and the European Court of Human Rights - An old couple in a new setting" in La Cour de Justice des Communaute's Européennes 1952-2002: Bilan et Perspectives (Bruylant, 2004), pp. 89, 103. In his view, when applying the EU's Charter of Fundamental Rights the ECJ is already bound by the interpretation given by the ECtHR to corresponding rights guaranteed by the European Convention on Human Rights: id., at pp. 101-102.
28. See Art. 6 EEA Agreement, and Art. 3 of the Surveillance and Court Agreement appended as Annex II to the EEA Agreement.
29. Ibid., read a contrario.
30. Skouris, "The ECJ and the EFTA Court under the EEA Agreement: A paradigm for international cooperation between judicial institutions", in Baudenbacher, Tresselt and Orlygsson, op. cit. supra note 13, pp. 123, 125.
31. E.g. Case C-192/01, Commission v. Denmark, [2003] ECR-I-9693, seemingly reversing its own case law and citing six times the EFTA Court's judgment in Case E-3/00, EFTA Surveillance Authority v. Norway, [2000-01] EFTA Ct Rep 73. See Skouris, ibid., at pp. 125-126;
32. Bronckers, "Exceptions to liberal trade in foodstuffs: The precautionary approach and collective preferences", in Baudenbacher, Tresselt and Orlygsson, op. cit. supra note 13, pp. 105-106.
33. On the concept of "mixed agreements", see Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford, 2004), pp. 190-199.
34. Under Art. 228 (now 300) EC. All the relevant provisions of the draft EEA Agreement are set forth in the ECJ's Opinion 1/91, [1991] ECR I-6079. The draft EEA Agreement also envisaged the establishment of an EEA Court of First Instance.
35. Ibid., para 39.
36. Ibid., paras. 33-36. The ECJ referred in this connection to Art. 164 (now 220) and 219 (now 292) EC. In commentaries at the time, it was argued that the problems of allocating internal competences between the EC and its Member States would arise in every mixed agreement concluded by the EC. Accordingly, following the ECJ's logic in Opinion 1/91, no "mixed" agreement could therefore foresee an adjudicative mechanism to settle disputes between Contracting Parties. See Brandtner, "The 'drama' of the EEA: Comments on Opinions 1/91 and 1/92", 3 EJIL (1992), 300-328, text at note 85.
37. See Opinion 1/91, cited supra note 20, paras. 41-46. The ECJ referred again in this connection to Art. 164 (now 220) EC.
38. Ibid., paras. 47-52. The ECJ formulated other objections to the draft EEA Agreement as well, which need not be discussed here.
39. See supra text at notes 15-17.
40. This entire arrangement is set out in Art. 111 EEA Agreement.
41. See Opinion 1/92, [1992] ECR I-2821.
42. See Protocol 48 to the EEA Agreement.
43. Norberg, Hökborg, Johansson, Eliasson and Dedichen, EEA Law: A Commentary on the EEA Agreement (Stockholm: Fritzes, 1993), pp. 278-279. I will not address here the possibility that decisions of a Joint Committee might be considered binding on the EC courts as emanating from a political body established by an international agreement to which the EC is a party, within the meaning of Case C-192/89, Sevince, [1990] ECR I-3461. See generally Martenczuk, "Decisions of bodies established by international agreements and the Community legal order", in Kronenberger (Ed.), The European Union and the International Legal Order: Discord or Harmony? (The Hague, 2001), p. 141.
44. See Opinion 1/00, [2002] ECR I-3493.
45. This arrangement is set out in Art. 20 of the current ECAA Agreement (the ECJ referred to the corresponding Art. 27 in the draft Agreement).
46. See Opinion 1/00, cited supra note 30, paras. 1 and 16-17;
47. see supra note 21.
48. See Opinion 1/00, paras. 27 et seq. National courts of ECAA Partners must observe the case law of the ECJ issued prior to the signing of the ECAA when interpreting provisions of the ECAA that are identical in substance to Community law, and may refer questions to the ECJ. See Art. 16 current ECAA Agreement (Art. 23 in the draft Agreement to which the ECJ referred). Similarly, the Joint Committee shall observe the case law of the ECJ. See Art. 16(1) and 20 (2) current ECAA Agreement
49. See supra text at note 21.
50. This is also the view of Castillo de la Torre in his case note on Opinion 1/00, 39 CML Rev. (2002) 1373, 1387.
51. Ultimately the ECAA's coverage was expanded to include eight South-East European partners as well: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the former Yugoslav Republic of Macedonia, Romania, Serbia and Montenegro and the U.N. Mission in Kosovo. At the time of writing (Jan. 2007), the ratification process is ongoing.
52. Art. 20 ECAA.
53. Cf. supra text at note 32.
54. See Opinion 1/94, [1994] ECR 5267.
55. Art. 6 and Art. 16.4 DSU.
56. Compare Art. 20 DSU (more optimistically indicating a total duration of 12 months).
57. Art. 16.4 and 7.14 DSU.
58. Art. 21.5 DSU.
59. Art. 21.3(c) DSU.
60. Art. 22.2 and 3 DSU.
61. Art. 22.6 DSU. On the WTO's dispute settlement procedure see generally Wolfrum, Stoll and Kaiser (Eds.), Max Planck Commentaries on World Trade Law: WTO - Institutions and Dispute Settlement (Nijhoff: Leiden, 2006).
62. See Case C-149/96, Portugal v. Council, cited supra note 9. The ECJ has maintained the narrow exceptions it developed in respect of the GATT, i.e. that whenever EC rules implement or refer to WTO rules they will be given effect. Case C-69/89, Nakajima, [1991] ECR I-2069. See Kuijper, in Kuijper and Bronckers, op. cit. supra note 9, at 1323-1328;
63. Bronckers, "The effect of the WTO in European Court litigation", 40 Texas Int'l Law Journal (2005), 443, 445-447.
64. Case T-174/00, Biret, [2002] ECR II-17, paras. 61-69.
65. Case C-94/02P, Biret, [2003] ECR I-10565, paras. 56-59. The ECJ rejected the private damages claim in this case for other reasons.
66. Case C-245/02, Anheuser-Busch v. Budvar, [2004] ECR I-10989, para 49.
67. Case C-377/02, Van Parys, [2005] ECR I-1465, paras 42 et seq.;
68. Case T-19/01, Chiquita, [2005] ECR II-315, paras. 156 et seq.
69. See Case C-69/89, Nakajima, cited supra note 47.
70. Case T-274/02, Ritek, judgment of 24 Oct. 2006, nyr, para 98.
71. Case C-351/04, IKEA, opinion delivered on 6 April 2006, para 79. Here, A.G. Léger implicitly appealed to the ECJ's reasoning in Opinion 1/91;
72. see supra, note 20.
73. Ibid., paras. 83-84.
74. Ibid., para 93, explicitly referring to the ECJ's Opinion 1/91;
75. see supra, note 20.
76. Ibid., paras. 94-97.
77. See Art. 292 EC. See generally Lavranos, "Concurrence of jurisdiction between the ECJ and international courts and tribunals", 14 Eur. Envirment'l Law Rev. (2005), 213-225, 240-251;
78. Cazala, "La contestation de la compétence exclusive de la Cour de justice des Communautés européennes", 40 RTDE (2004), 505.
79. See Case C-459/03, Commission v. Ireland, [2006] ECR I-4635.
80. Such a suit amongst EC Member States would also be considered to run afoul of the loyalty obligation contained in Art. 10 EC. Ibid., para 182.
81. See Paasivirta and Kuijper, "Does one size fit all? The European Community and the responsibility of international organizations", to be published in Netherlands Yearbook of Int'l Law (2005), text at note 23. The texts of these agreements are collected at www.consilium. europa.eu/cms3-applications-/Applications/accords/search.asp See generally Maresceau, "Bila t eral Agreements Concluded by the European Community", 309 Academie de la Haye, Receuil des cours, (2006), 129-451.
82. See Garcia Bercero, op. cit. supra note 12, at 384.
83. Ibid., at 390-391.
84. Consider e.g. AG Léger, who after having posited that the ECJ was not bound by a WTO ruling on the same EC measure being challenged before it, paid no further attention to this WTO ruling. See supra, notes 54-57.
85. Brandtner, cited supra note 22.
86. See supra, text at note 39. Interestingly, the division of competence between the Community and its Member States has been raised in WTO dispute settlement proceedings (notably, by the USA). Yet WTO tribunals have sought to avoid addressing this issue. See e.g. WTO Panel, EC - Selected Customs Matters (2006), paras. 6.72-6.74, 7.548-7.549 (distinguishing EC and EC Member States' responsibility for customs classification under international law and under EC domestic law);
87. WTO Appellate Body, EC Customs Classification of Computer Equipment (1998), para 96 (focusing on the EC as the relevant export market).
88. See supra text at note 36.
89. See Paasivirta and Kuijper, cited supra note 61.
90. See supra text at note 23.
91. For example, Castillo de la Torre observes that even if the Community were at some point to accede to the ECHR, the ECJ should have no problem subjecting itself to the interpretations of the ECtHR as the Convention does not replicate Community rules. See supra note 35, at 1387, n. 28.
92. Similar problems also arise, by the way, in other settings: for instance, if the international tribunal established by a bilateral free trade agreement between the EC and a third country is led to interpret WTO law. Such an interpretation could be seen to infringe on the WTO's exclusive jurisdiction to interpret conflicts between its Members. See Garcia Bercero, op. cit. supra note 12, 401-403.
93. See supra text at notes 51-57.
94. But see Editorial Comments, "Relations between international courts and Community courts: Mutual deference or subordination?", 42 CML Rev. (2005), 581, 584-585 (arguing that EC courts treat WTO rulings in many ways like ECtHR rulings when there is no question of execution or enforcement - which is non-committal; and referring to several opinions of advocates general who have cited WTO rulings to underline their own interpretation - which contrasts with their more recent dismissal by A.G. Léger, cited supra note 54).
95. See Lenaerts and Corthaut, "Of birds and hedges: The role of primacy in invoking norms of EU law", 31 EL Rev. (2006), 287, 299.
96. See Bronckers in Kuijper and Bronckers, op. cit. supra note 9, 1343 et seq.
97. According to a recent count, the WTO dispute settlement system has had a successful implementation rate of 83%. See Davey, "Dispute settlement in the WTO and RTAs: A comment", in Bartels and Ortino, op. cit. supra note 12, 347-348.
98. See supra text at note 45.
99. See Art. 228 EC.
100. See Case C-479/93, Francovich, [1995] ECR I-3843.
101. International adjudication is usually seen to involve (1) independent judges applying (2) relatively precise and pre-existing legal norms after (3) adversary proceedings, (4) respecting basic principles of procedural fairness, in order to achieve (5) reasoned decisions in which (6) one party wins. See Alvarez, "The new dispute settlers: (Half) truths and consequences", 38 Texas Int'l Law Journal (2003), 405, 407-408. WTO tribunals meet these criteria. Id.
102. See also e.g. Dias Varella, "La complexité croissante du système juridique international: Certains problèmes de cohérence systémique", 2 Rev. belge dr. int. (2003), 331, 362 (highlighting the importance and increasing legitimacy of the WTO dispute settlement system amongst international tribunals);
103. Helfert and Slaughter, "Why States create international tribunals: A response to Professors Posner and Yoo", 93 California Law Rev. (2005), 1, 5 and 22 (approving and reinforcing conclusion that WTO tribunals are highly effective and independent).
104. See also Laget-Annameyer, "Le statut des accords OMC dans l'ordre juridique communautaire: En attendant la consécration de l'invocabilité", 42 RTDE (2006), 249, 276 et seq (arguing that the WTO dispute settlement system has a hybrid character, combining both legal and political elements, though submitting at the same time that the binding nature of WTO dispute settlement rulings is especially strong as a matter of public international law).
105. See supra note 8.
106. See text supra note 12. For a South-American perspective, see Francke, "Chile's participation in the Dispute Settlement System: Impact on capacity building" (ICTSD paper, 2006), at 3-4, available at www.ictsd.org/dlogue/2006-11-02/Mathias-Francke.pdf.
107. The importance of this distinction was originally developed by Jackson, "Governmental disputes in international trade relations: A proposal in the context of GATT", 13 Journal of World Trade Law (1979), 1-21.
108. In Opinion 1/91, see supra note 20.
109. E.g., Nollkaemper, "Internationalisering van Nationale Rechtspraak", 131 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (Nov. 2005), 1, 27 et seq. (the State as a whole is deemed responsible for compliance with international law; and mutatis mutandis so is the EC). There are those, though, who plead for a "disaggregated State", and who would like separate governmental institutions, like courts, to have independent obligations to interpret and implement international law. See Slaughter, A New World Order (Princeton, 2004), pp. 268-269.
110. See Art. XV1(4) Marrakesh Agreement.
111. See also WTO panel, EC Bananas-régime (Art. 21.5 proceedings) (1999), at 6.154: "Members remain free to choose how they implement DSB recommendations and rulings." See also WTO panel, Section 301-310 of US Trade Act of 1974 (2000), para 7.72: "Whether there are circumstances where obligations in any of the WTO agreements addressed to members would create rights for individuals remains an open question." This is agreed by Rapp-Lücke, Das Rechtliche Verhältnis zwischen dem Streitbeilegungsgremium der Welthandelsorganisation und dem Gerichtshof der Europäischen Gemeinschaften (2004), pp. 217-221 (who otherwise favors the binding force of WTO rulings as a matter of EC law).
112. See generally Alkema, Over Implementatie van Internationaal Recht (inaugural address, University of Leiden, 18 Oct. 2005, available at hdl.handle.net/1887/3764 (arguing that even in a traditionally monist country like the Netherlands, the role of Dutch courts in assigning direct effect to international agreements has to be reconsidered in relation to the legislature and the executive).
113. Case 26/62, Van Gend & Loos, [1963] ECR 3, 10-15.
114. See Case 104/81, Hauptzollamt Mainz, [1982] ECR 3641. For a far-reaching plea to abandon Kupferberg, see my co-author Kuijper, op. cit. supra note 9, at 1317-1323 (note that Kuijper seeks reversal of Kupferberg for different reasons, notably as an acknowledgement of the increasing international stature of the Community, with attendant negotiating power).
115. This trend seems to have started with Opinion 1/91, cited supra note 20 (see paras. 30, 35, 47) and is amplified, for instance, in Opinion 1/00, cited supra note 30 (see paras. 5, 6, 11, 12, 21, 27, 37, 41, 46).
116. See also A.G. Léger's recent Opinion, supra, text at note 54.
117. See Castillo de la Torre, op. cit. supra note 35, at 1389-1391, who also questions the ECJ's increasing insistence on "autonomy".
118. See generally on the contributions which the EC can make to global governance the pioneering studies of Lamy, La Démocratie-Monde: Pour une autre Gouvernance Globale (Seuil, 2004);
119. Lamy and Laidi, "A European approach to global governance", 1 Progressive Politics (No. 1, 2002), 56-63.
120. See Rosas, "The European Court of Justice: Sources of law and methods of interpretation", in Sacerdoti, Yanovich and Bohanes (Eds.), op. cit. supra note 3, p. 482, 483.
121. This consideration was highlighted by the German Federal Constitutional Court when, in litigation between a Turkish national and the German authorities, it followed the interpretation given by the International Court of Justice of the Vienna Convention on Consular Relations in a dispute between Mexico and the United States. See BVerfG, Mr F., 2 BvR 2115/01, para 62 (19 Sept. 2006) referring inter alia to the ICJ judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (nyr).
122. The German Federal Constitutional Court drew attention to this possibility, in the context of family law, when faced with the implementation of a judgment of the ECtHR. See BVerfG, Görgülü, 2 BvR 1481/04, para 62 (14 Oct. 2004), reviewing ECtHR, Görgülü v. Germany, [2004] Eur. Ct. H.R. 89. Again though, the starting position of the German Constitutional Court was that German courts ought to pay respect to and engage with such a ruling. See generally Hartwig, "Much ado about human rights: The Federal Constitutional Court confronts the European Court of Human Rights", 6 German Law Journal (2005), 870.
123. See the treatment by the Israeli High Court of the International Court of Justice's prior ruling on the barrier constructed by Israel and separating Palestinian territory. While paying respect to the authority of the International Court of Justice, the Israeli High Court of Justice came to different conclusions on the basis of additional factual elements. Compare ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, with Israeli High Court of Justice, HCJ 7957/04, Zaharan Yunis Muhammad Mara'abe v. The Prime Minister of Israel, judgment of 15 Sept. 2005, para. 60 et seq. But see Gross, "The construction of a wall between The Hague and Jerusalem: The enforcement and limits of humanitarian law and the structure of occupation", 19 LJIL (2006), 393, 426 (arguing that the factual elements in this case are not convincing to justify the different conclusions reached by the Israeli High Court).
124. See BVerfG, cited supra note 94, para 61 (aptly referring to the "Orientierungswirkung" of judgments of the ICJ).
125. See also the Court of Criminal Appeals of Oklahoma, which sought consistency with the ICJ's interpretation of the Vienna Convention on Consular Relations when subsequently reviewing the fate of a Mexican national whose appeal to this Convention had previously been recognized by the ICJ in Avena, cited supra note 94. See Torres v. Oklahoma, 120 P.3d 1184, 1187 (2005). For an analysis of this litigation, see Koven Levit, "A tale of international law in the heartland: Torres and the role of State Courts in transnational legal conversation", 12 Tulane Journal of Comp. & Int'l Law (2004-2005), 163.
126. Art. 235 and 288 EC.
127. This issue has come up in connection with a claim filed by EC exporters against the EC institutions for the damages they suffered from US retaliatory trade restrictions in response to the EC's failure to bring its Bananas régime in compliance with a WTO Appellate Body ruling in time. The CFI rejected this claim in Case T-69/00 etc., FIAMM, [2005] ECR II-5393. The CFI's judgment, currently on appeal, has been criticized by Thies in her annotation in 43 CML Rev. (2006), 1145, 1158 (arguing that the payment of financial compensation does not restrict the EC institutions in pursuing their political goals, but will open a public discussion on the reasons for non-compliance, which is to be welcomed).
128. Cf. supra, text at notes 69-71.
129. Cf. supra, text at notes 65-68.
130. By way of comparison, the US Supreme Court recently explained that it did not feel bound by the ICJ's interpretation of the Vienna Convention on Consular Relations given in Avena, cited supra note 94. See US, Sanchez-Llamas v. Oregon (28 June 2006), slip op., at 17-25. According to the US Supreme Court, the International Court of Justice in Avena had "over-looked" that a contested US rule of procedure was key to the US adversary system; id., at 21. The Supreme Court also noted that the United States shortly after the ICJ's ruling in Avena had withdrawn its consent to the ICJ's jurisdiction concerning Vienna Convention disputes, which it cited as another reason not to give decisive weight to the ICJ's interpretation of this Convention; id., at 20-21.
131. See Baudenbacher, "Judicial globalization: New developments or old wine in new bottles?," 38 Tex. Int'l L. J. (2003), 505, 525-526.
132. Slaughter, op. cit. supra note 85, pp. 68, 100;
133. Allard and Garapon, Les Juges dans la Mondialisation: La Nouvelle Révolution du Droit (Seuil, 2005), pp. 25-26. Note that these authors draw very different conclusions from this burgeoning judicial dialogue. While Slaughter discerns the outlines of a new legal order, Allard and Garapon recognize no such general design. They posit that more frequent exchanges between judges from different jurisdictions create a new form of legal cosmopolitism, with its own problems and benefits; id., at pp. 91-94.
134. Ruiz-Fabri, contribution to the debate at the XXXVIe Colloque of the Société Française Pour le Droit International, La Juridictionnalisation du Droit International (Penone, 2003), at p. 462.
135. Kamto, "Les interactions des jurisprudences internationales et des jurisprudences nationales", in La Juridictionnalisation du Droit International (Penone, 2003), p. 393, at 415.
136. See also Jouannet, "La notion de jurisprudence internationale en question", in La Juridictionnalisation du Droit International, id., p. 343, at 361.
137. Burgorgue-Larsen, "Le fait régional dans la juridictionnalisation du droit international", in La Juridictionnalisation du Droit International, id., p. 203, 258 et seq.
138. See Bornkamm, "The German Supreme Court: An actor in the global conversation of High courts", 39 Texas Int'l Law Journal (2004), 415 (distinguishing five levels of cooperation, illustrated by examples drawn from intellectual property law).