Courts as Global Regulators? The Judicial Regulation in the GAL Perspective

Elisa D'Alterio 

University of Catania - Faculty of Law
June 1, 2012

Robert Schuman Centre for Advanced Studies (RSCAS) - Global Governance Programme - Policy Papers 2012/04, Global Administrative Law: An Italian Perspective 
Abstract:      
The present paper analyses the practice of courts to apply particular techniques (so called “doctrines”) in order to regulate the relations between legal systems in the global administrative space, due to the lack or insufficiency of codified parameters regulating those relations.

In particular, the paper aims to answer the following questions: which is the function implemented by courts when they apply doctrines? In which measure does the application of doctrines affect the development of Gal? The main objective is to demonstrate that the application of doctrines embodies a “regulatory function” of courts, which strongly affects the development of Gal. Such an objective suggests how this paper is organized. After a brief introduction (section 1), section 2 investigates the definition of “judicial regulation” and, in particular, analyses its development in the global administrative space. In section 3, the need to demonstrate how doctrines may represent a form of judicial regulation calls for an analysis of data relating to their application. This section takes into account two significant cases singled out according to the use of some relevant doctrines by ultra-state courts to solve contrasts between systems belonging to different legal levels. Section 4 analyses the object and the main features of doctrines applied in the cases mentioned in section 3, by identifying differences from conflict of laws rules, and by highlighting their regulatory function. In the light of such a result, section 5 identifies some effects deriving from the regulatory function of courts, mainly with regard to the development of Gal.

Number of Pages in PDF File: 11

Keywords: courts, global administrative law, legal systems, doctrines, global law, global order, global space, legal relations

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182031