All Western Balkan countries currently holding the EU Candidate Country status, namely, Albania, ... more All Western Balkan countries currently holding the EU Candidate Country status, namely, Albania, Montenegro, FYROM, Serbia, and hopefully in the near future Kosovo, are in a critical stage of the EU integration. From their institutions are required serious reforms which are necessary for almost all the of above countries. The focus of this paper is Albania. After the approval of the EU Candidate Country status, each branch of the Albanian government is now facing new legal challenges. However, at this stage, the central role passes to the judiciary, which should and could turn into a real "engine" of the EU integration. The new role of the Albanian judiciary for the EU integration should primary be understood and recognized by judges themselves, as well as academics and the public. Judges in particular, should know what instruments are available there, in order to best perform their new task. This paper initially aims to clarify the new role of the Albanian judiciary, as the "engine" of the EU integration, in order to raise awareness not just to judges, but also to academics and the public. Then, it will present what practical instruments can and must be used by the Albanian judiciary in order to best achieve the required EU integration. Examples of such instruments are: the preliminary ruling; principle of supremacy; principle of direct effect; principle of indirect effect; and most importantly, EU remedies in national courts. The paper will analyze each of these instruments and will display precisely how Albanian courts can use them in favor of their citizens, and for achieving higher EU integration. In conclusion, the article suggests that although significant constitutional and legal reforms are needed, the existing constitutional and legal framework of Albania allows the judiciary to perform its new role as the "engine" of the EU integration.
Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corru... more Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corruption has been a challenge for each presidential administration. The Brazilian judiciary has not escaped the corrupting influences in the region. One country whose challenges with judicial corruption are arguably even greater than Brazil's is Albania, a country for which we were appointed to act as Consultants to the Special Parliamentary Committee on the Reform of the Judicial System responsible for introducing major constitutional reforms aimed at curbing judicial corruption. Those reforms to the Albanian Constitution entered into force in 2016. Too little time has elapsed since then to evaluate whether these reforms will fulfill their purposes. And certainly much too little time has passed for us to know whether the reforms in Albania can be applied with any confidence elsewhere in the world where similar problems with judicial corruption continue to undermine democratic norms of transparency and accountability, namely in Brazil. We nonetheless believe it is useful to explain the Albanian constitutional reforms and to introduce them to readers in Brazil as available options for combating judicial corruption.
Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively eng... more Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centered on interviews with ten current and former justices of the SCC and non-‐public archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy”. In addition to these institutional court-to-court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This paper reveals that former and current judges of the SCC interact with foreign and international judges not only within official meetings of the SCC, or as part of the Court’s delegation, but also individually through several mechanisms. The bilateral or multilateral foreign relationships of the SCC, whether as an institution or through individual judges, should not be considered informal or unimportant as they have demonstrable effects. It is through these meetings that they exchange views on their decisions, generate substantive, procedural, and court management ideas, often turning these ideas into action; such as establishing global and regional judicial networks, judicial training institutions, or electronic networks. Ultimately, the data of this research demonstrate that this dialogue with foreign counterparts also have a broader impact on Canada’s global reputation and foreign policy.
Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively eng... more Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centered on interviews with ten current and former justices of the SCC and non-‐public archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy”. In addition to these institutional court-to-court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This paper reveals that former and current judges of the SCC interact with foreign and international judges not only within ...
There are numerous academic writings about the actors, factors, and mechanisms that shape and dri... more There are numerous academic writings about the actors, factors, and mechanisms that shape and drive human rights at national, transnational, and international levels. However, the relationship between human rights and the process of judicial globalization remains underexplored in recent scholarship, and the purpose of this study is to explore such a relationship and its effects. First, we provide a brief theoretical background of both human rights and judicial globalization concepts, and then, we focus on the relationship between them. By investigating existing empirical data, we uncover how judicial globalization is effecting and shaping human rights through various mechanisms and their classifications. Finally, by using the theoretical and empirical tests, we respond to the normative question, whether the judicial globalization process is a suitable tool for the development of human rights at national, international, and transnational levels. The results of this paper show that hu...
Through personal interviews with ten current and former judges of the SCC, case analyses, a revie... more Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 2000-2016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in "extracurial" activities-which vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)-is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global. We shall not cease from exploration And the end of all our exploring Will be to arrive where we started And know the place for the first time. 1 CHAPTER 1 10 I deal with the rationale for considering individual judges as significant actors of transnational judicial dialogue in another chapter. See Chapter 2 "Understanding Transnational Judicial Dialogue From a Theoretical Perspective: An Overview of the SCC".
Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC)... more Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC) is often considered one of the world's most cosmopolitan and proactive actors in transnational judicial conversation. However, there are also other forms of non-domestic legal sources that Courts engage with, such as: foreign law, international case law, and international treaties. Hence, the 'globalist' or 'localist' approach of a court cannot be assessed without looking from this broader perspective. By examining all the 1223 judgments issued by the SCC over 17 years (2000-2016), this study offers a comprehensive picture of citations of all forms of non-domestic legal sources. Remarkably, the empirical data show that the Court has extensively engaged with all forms of non-domestic legal sources, and cites such foreign authorities in approximately 50 different fields of law. This article is distinct in that it combines two different perspectives when analyzing the data: the SCC as an institution and its individual judges. From an institutional perspective, such all-inclusive records demonstrate that foreign citation is decreasing, a trend which may jeopardize the high prestige of the SCC in the global arena. Similar trend is noticeable when the data is analyzed also from an individual-judge perspective. In providing an empirical picture of individual judges' engagement with non-domestic legal sources, this Article attempts to categorize the 21 justices that have served in the SCC during the 17-year timeframe into three groups: 'high globalist judges', 'moderate globalist judges', and 'localist judges'. The article ends with few remarks regarding whether this is a judicial slowbalization of the Court.
Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corru... more Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corruption has been a challenge for each presidential administration. The Brazilian judiciary has not escaped the corrupting influences in the region. One country whose challenges with judicial corruption are arguably even greater than Brazil's is Albania, a country for which we were appointed to act as Consultants to the Special Parliamentary Committee on the Reform of the Judicial System responsible for introducing major constitutional reforms aimed at curbing judicial corruption. Those reforms to the Albanian Constitution entered into force in 2016. Too little time has elapsed since then to evaluate whether these reforms will fulfill their purposes. And certainly much too little time has passed for us to know whether the reforms in Albania can be applied with any confidence elsewhere in the world where similar problems with judicial corruption continue to undermine democratic norms of transparency and accountability, namely in Brazil. We nonetheless believe it is useful to explain the Albanian constitutional reforms and to introduce them to readers in Brazil as available options for combating judicial corruption.
Through personal interviews with ten current and former judges of the SCC, case analyses, a revie... more Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 2000-2016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in "extracurial" activities-which vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)-is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global. We shall not cease from exploration And the end of all our exploring Will be to arrive where we started And know the place for the first time. 1 CHAPTER 1 10 I deal with the rationale for considering individual judges as significant actors of transnational judicial dialogue in another chapter. See Chapter 2 "Understanding Transnational Judicial Dialogue From a Theoretical Perspective: An Overview of the SCC".
All Western Balkan countries currently holding the EU Candidate Country status, namely, Albania, ... more All Western Balkan countries currently holding the EU Candidate Country status, namely, Albania, Montenegro, FYROM, Serbia, and hopefully in the near future Kosovo, are in a critical stage of the EU integration. From their institutions are required serious reforms which are necessary for almost all the of above countries. The focus of this paper is Albania. After the approval of the EU Candidate Country status, each branch of the Albanian government is now facing new legal challenges. However, at this stage, the central role passes to the judiciary, which should and could turn into a real "engine" of the EU integration. The new role of the Albanian judiciary for the EU integration should primary be understood and recognized by judges themselves, as well as academics and the public. Judges in particular, should know what instruments are available there, in order to best perform their new task. This paper initially aims to clarify the new role of the Albanian judiciary, as the "engine" of the EU integration, in order to raise awareness not just to judges, but also to academics and the public. Then, it will present what practical instruments can and must be used by the Albanian judiciary in order to best achieve the required EU integration. Examples of such instruments are: the preliminary ruling; principle of supremacy; principle of direct effect; principle of indirect effect; and most importantly, EU remedies in national courts. The paper will analyze each of these instruments and will display precisely how Albanian courts can use them in favor of their citizens, and for achieving higher EU integration. In conclusion, the article suggests that although significant constitutional and legal reforms are needed, the existing constitutional and legal framework of Albania allows the judiciary to perform its new role as the "engine" of the EU integration.
Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corru... more Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corruption has been a challenge for each presidential administration. The Brazilian judiciary has not escaped the corrupting influences in the region. One country whose challenges with judicial corruption are arguably even greater than Brazil's is Albania, a country for which we were appointed to act as Consultants to the Special Parliamentary Committee on the Reform of the Judicial System responsible for introducing major constitutional reforms aimed at curbing judicial corruption. Those reforms to the Albanian Constitution entered into force in 2016. Too little time has elapsed since then to evaluate whether these reforms will fulfill their purposes. And certainly much too little time has passed for us to know whether the reforms in Albania can be applied with any confidence elsewhere in the world where similar problems with judicial corruption continue to undermine democratic norms of transparency and accountability, namely in Brazil. We nonetheless believe it is useful to explain the Albanian constitutional reforms and to introduce them to readers in Brazil as available options for combating judicial corruption.
Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively eng... more Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centered on interviews with ten current and former justices of the SCC and non-‐public archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy”. In addition to these institutional court-to-court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This paper reveals that former and current judges of the SCC interact with foreign and international judges not only within official meetings of the SCC, or as part of the Court’s delegation, but also individually through several mechanisms. The bilateral or multilateral foreign relationships of the SCC, whether as an institution or through individual judges, should not be considered informal or unimportant as they have demonstrable effects. It is through these meetings that they exchange views on their decisions, generate substantive, procedural, and court management ideas, often turning these ideas into action; such as establishing global and regional judicial networks, judicial training institutions, or electronic networks. Ultimately, the data of this research demonstrate that this dialogue with foreign counterparts also have a broader impact on Canada’s global reputation and foreign policy.
Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively eng... more Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centered on interviews with ten current and former justices of the SCC and non-‐public archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy”. In addition to these institutional court-to-court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This paper reveals that former and current judges of the SCC interact with foreign and international judges not only within ...
There are numerous academic writings about the actors, factors, and mechanisms that shape and dri... more There are numerous academic writings about the actors, factors, and mechanisms that shape and drive human rights at national, transnational, and international levels. However, the relationship between human rights and the process of judicial globalization remains underexplored in recent scholarship, and the purpose of this study is to explore such a relationship and its effects. First, we provide a brief theoretical background of both human rights and judicial globalization concepts, and then, we focus on the relationship between them. By investigating existing empirical data, we uncover how judicial globalization is effecting and shaping human rights through various mechanisms and their classifications. Finally, by using the theoretical and empirical tests, we respond to the normative question, whether the judicial globalization process is a suitable tool for the development of human rights at national, international, and transnational levels. The results of this paper show that hu...
Through personal interviews with ten current and former judges of the SCC, case analyses, a revie... more Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 2000-2016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in "extracurial" activities-which vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)-is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global. We shall not cease from exploration And the end of all our exploring Will be to arrive where we started And know the place for the first time. 1 CHAPTER 1 10 I deal with the rationale for considering individual judges as significant actors of transnational judicial dialogue in another chapter. See Chapter 2 "Understanding Transnational Judicial Dialogue From a Theoretical Perspective: An Overview of the SCC".
Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC)... more Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC) is often considered one of the world's most cosmopolitan and proactive actors in transnational judicial conversation. However, there are also other forms of non-domestic legal sources that Courts engage with, such as: foreign law, international case law, and international treaties. Hence, the 'globalist' or 'localist' approach of a court cannot be assessed without looking from this broader perspective. By examining all the 1223 judgments issued by the SCC over 17 years (2000-2016), this study offers a comprehensive picture of citations of all forms of non-domestic legal sources. Remarkably, the empirical data show that the Court has extensively engaged with all forms of non-domestic legal sources, and cites such foreign authorities in approximately 50 different fields of law. This article is distinct in that it combines two different perspectives when analyzing the data: the SCC as an institution and its individual judges. From an institutional perspective, such all-inclusive records demonstrate that foreign citation is decreasing, a trend which may jeopardize the high prestige of the SCC in the global arena. Similar trend is noticeable when the data is analyzed also from an individual-judge perspective. In providing an empirical picture of individual judges' engagement with non-domestic legal sources, this Article attempts to categorize the 21 justices that have served in the SCC during the 17-year timeframe into three groups: 'high globalist judges', 'moderate globalist judges', and 'localist judges'. The article ends with few remarks regarding whether this is a judicial slowbalization of the Court.
Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corru... more Corruption is a fact of public life in Brazil. Since the country's transition to democracy, corruption has been a challenge for each presidential administration. The Brazilian judiciary has not escaped the corrupting influences in the region. One country whose challenges with judicial corruption are arguably even greater than Brazil's is Albania, a country for which we were appointed to act as Consultants to the Special Parliamentary Committee on the Reform of the Judicial System responsible for introducing major constitutional reforms aimed at curbing judicial corruption. Those reforms to the Albanian Constitution entered into force in 2016. Too little time has elapsed since then to evaluate whether these reforms will fulfill their purposes. And certainly much too little time has passed for us to know whether the reforms in Albania can be applied with any confidence elsewhere in the world where similar problems with judicial corruption continue to undermine democratic norms of transparency and accountability, namely in Brazil. We nonetheless believe it is useful to explain the Albanian constitutional reforms and to introduce them to readers in Brazil as available options for combating judicial corruption.
Through personal interviews with ten current and former judges of the SCC, case analyses, a revie... more Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 2000-2016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in "extracurial" activities-which vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)-is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global. We shall not cease from exploration And the end of all our exploring Will be to arrive where we started And know the place for the first time. 1 CHAPTER 1 10 I deal with the rationale for considering individual judges as significant actors of transnational judicial dialogue in another chapter. See Chapter 2 "Understanding Transnational Judicial Dialogue From a Theoretical Perspective: An Overview of the SCC".
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