Call for Papers
Interpretation of Law in the Global World: from Particularism to a Universal Approach
Editors
Joanna Jemielniak, Ph.D., Kozminski Business School, Warsaw, Poland
and Przemysław Mikłaszewicz, Ph.D., Office of the Constitutional Tribunal, Warsaw, Poland
Submission guidelines and timeline
Please submit a 500-1,000 words abstract by April 15, 2008. Preliminary acceptance decisions will be made by May 15, 2008. Full papers of between 7,500 and 10,000 words should be submitted by October 15, 2008. All submitted chapters will be reviewed on a double-blind review basis.
Publishing agreement for the volume has been concluded with Springer.
Please express your interest or inquiries by email to joannaj@wspiz.edu.pl and miklaszewicz@trybunal.gov.pl . We are able to process most common file formats. Please make sure that the document clearly indicates your name, affiliation, and contact information.
Summary
The proposed book aims at presenting consequences of transnational rules application for the repertory, methods and practice of legal interpretation. In the context of increasing globalization processes of the last decades, and due to their vital practical significance, two types of such standards seem to be particularly worth consideration. Firstly, rules achieved as a result of a close cooperation between the states (European law serving as a prominent example of such practice) shall be mentioned; and secondly, uniform standards worked out as an outcome of a concerted practice by private parties, involved in international transactions.
In both of these areas harmonization affects procedural, as well as substantive regulations. Whereas there are specialized, transnational bodies, obligated to adjudicate on a basis of harmonized rules, currently also domestic judges, while educated predominantly in their native legal cultures, face, more and more frequently, a necessity of applying non-national standards. It seems therefore essential to examine how the abovementioned phenomena influence the – often highly innovative – use of various methods of legal rendition and to what extent it affects domestic practice of adjudication.
Scope of the Project
International and supranational integration on the European continent, as well as the development and global popularity of dispute resolution between individuals through arbitration, constantly exert a considerable influence on modern legal systems. The sources of each of the aforementioned phenomena are different. Also, their ways of action are opposite, and can be described as reaching either from the top to the bottom, through a direct involvement of interested states and consequently affecting their internal legal systems (international and supranational integration); or bottom-up, as a result of private parties’ activity, leading to the achievement of uniform practices and standards (arbitration, lex mercatoria ). Nonetheless, they both enrich national legal cultures and contribute to transgressing the limits of national (local) particularisms in creating, interpreting and applying the law.
The aim of this book is to demonstrate how these processes influenced interpretation of law, in what way they shaped the methods and techniques of said interpretation and with what consequences for the outcomes of the interpretive procedures. In assessing the extent of the aforementioned influence, due regard must be paid to the fact that the interpretation of law is not, in principle, directly determined by the provisions of law itself. There are many factors which set its form and limits, in particular the powers and position of the institution interpreting the law, the source of a legal provision being a subject to interpretation, legal culture predominant in the environment in which the interpretive process is conducted, and the established directives of legal analysis
Two elements seem to be of utmost importance for understanding the role of both processes in breaking the ties of a traditional approach to the interpretation of law, which has always been deeply enrooted in national particularisms. The major difference lies in the nature of the institution empowered to interpret the law. International and supranational bodies as well as arbitration courts and panels are universal by virtue of their very nature. They are obliged to apply a universal approach to the legal interpretation, i.e. the approach which is not based on local particularisms. Moreover, their powers, and most particularly the power to provide such interpretation, derive from sources which are not national or local. International and supranational bodies exercise the powers conferred upon them by international treaties, and the arbitrators are vested with the authority to act by the individuals which are parties to the legal relationship in question.
At the same time, the way in which these institutions and bodies interpret the law provides an inspiration for national bodies and encourages them to ‘open’ the interpretation of national law and apply a more universal approach. The practice of supranational bodies ex definitione legitimizes such ‘openness’. It is frequently achieved by the means of already existing tools, such as purposive or systemic interpretation, as well as instruments known to the traditional conflict of laws doctrine (harmonization of contexts, regard to international public order). They are, however, applied in a new normative context (of constitutional and international rules) and lead to different interpretive results. Another important reason for such outcome lies in the fact that the work of international and supranational bodies as well as of arbitration courts and panels provides for concrete examples of a new way of applying known instruments of legal interpretation. It may be intellectually inspiring for judges sitting in national courts, who are also more and more often confronted with a problem of construing transnational rules themselves
It is crucial to illustrate the abovementioned transformation of traditional use of techniques of legal interpretation at the national level by means of concrete examples of the use of a more universal approach to the interpretation of law (law in action). Therefore it is particularly welcome to couple theoretical concepts developed in respective chapters of the book with the examples of judicial and arbitral reasoning in concrete decisions and dispute settlements.
Innovativeness of the Project
Transnational regulations and standards, both: procedural and substantive, have already aroused vast interest in the legal doctrine, accordingly to their practical significance. Studies on particular areas of European law, new lex mercatoria and international commercial arbitration are conducted at many academic centers and have been undergoing a rapid development in recent decades. These valuable research projects, as well as abundant literature resulting thereof, are usually oriented on descriptive and dogmatic aspects of particular legal regulations.
The main goal of the proposed book is different, as it aims primarily at capturing specific demands of interpreting supranational standards of different origin, and not only at the merits of the standards themselves. In the quickly evolving fields of transnational lawmaking and legal practice the methods of legal inquiry and the argumentative repertory, as well as techniques of using traditional analytic tools, have been developed in an original and often highly innovative way. The practice of interpreting supranational standards is frequently associated with challenges still relatively uncommon in the realms of domestic adjudication.
This important aspect of a global trend towards harmonization of different areas of l
aw has not been an object of a separate, monographic research so far.The proposed book is an attempt to fill this gap and an original project, which aims at providing such a comprehensive analysis. Supranational and complex character of the object of study requires intensive, comparative examination and case studies. A form of an edited volume seems therefore particularly adequate for this purpose as it facilitates adopting a comparative perspective and finding a common ground for reviewing the practice of legal interpretation in different areas of transnational legal regulations.
Table of Contents
The book, due to its adopted scope, is planned to consist of, but not be limited to the chapters regarding the following topics:
Public international law rules as inspiration for private dispute resolution standards (e.g. lis alibi pendens ; estoppel).
Use of conflict of laws instruments as a tool to achieve transnational standards (harmonization of contexts, regard to international public order).
Lex mercatoria in arbitral decision-making:
– as a substantive body of rules / counterpart to harmonized procedural standards of arbitration
– as arbitral case law (rules worked out in precedential awards)
– as a method of adjudication
Impartiality of an arbitrator – its institutional framework and consequences for adjudication.
Arbitral decision-making in a diversified environment – working through systemic (legal), linguistic and cultural differences in an interpretive process.
Interpretation of national law in conformity with the EU law: a new method of interpretation to serve the effectiveness of acquis communautaire :
– adaptation of traditional tools of interpretation of contract law for the purpose of protection of consumers
– influence of framework decisions on the interpretation of national procedural provisions in the field of criminal law.
The power of national courts to refuse to apply national provisions contrary to EU law. The rise of a European judicial review or escape from the difficult task of conforming interpretation?
From formal to real guarantees of individual rights: influence of the case-law of the ECHR on the interpretation of domestic constitutional provisions (rights that are effective not illusory, chilling effects). Transnational standards and domestic judges: crisis of the positivist model of adjudication?