Interaction among different judicial bodies around the world

The emergence of new dynamics in supranational adjudication is an important part of judicial globalisation; however, horizontal relations between national courts are instrumental in building a global community of law. The modes in which domestic courts relate to each other are changing dramatically.

Economic globalisation and the reassertion of individual rights have had a strong impact on the way in which domestic courts are interacting today. In an increasingly interdependent world, investment by one company may be disseminated in several countries; likewise, the processes of production and distribution are fragmented throughout the globe. Most economic transactions are unthinkable without the participation of people and institutions of different nationalities. The magnitude, velocity and multiplicity of the global economy have increased transnational litigation, as well as the number of potential domestic courts for solving disputes. The traditional norms of private international law and arbitration fall short of the requirements of this new economic reality. Today, disputants of different nationalities must rely on domestic courts to solve effectively their controversies. It has become indispensable that national courts modernise and develop a common language in order to meet the requirements imposed by globalisation and economic integration. This is the reason why domestic courts - more than ever - must offer disputants three key elements: predictability, stability and the satisfaction of mutual expectations. National courts are recognising their instrumental role as ultimate gatekeepers of successful economic integration processes. This role has sparked a new concept of judicial comity, in which domestic judicial bodies are deferring to other countries´ national courts rather than to foreign law or foreign national interests. In other words, national courts have become increasingly deferential to professional institutions that will solve the dispute through fair procedures, honestly and competently. At the same time, there is a growing conviction that domestic courts in different nations serve as equally valid adjudicative institutions, and that courts have been created to protect individual rights.

It is evident that this conception of judicial comity assumes that much work is needed to harmonise rules of procedure in domestic fora around the world. Would this harmonisation effort be seen as a new means of dominance by the rich over the poor? Is this doctrine also overly preoccupied with the promotion of global capitalism, to the detriment of other fundamental rights and freedoms? This question will be addressed in the next section.

Judicial comity is only one of several "horizontal" mechanisms to create a global community of law. Transjudicial interaction also takes place in the form of constitutional cross - fertilisation. Constitutional judges are borrowing fundamental legal principles and arguments from the highest tribunals in other countries to support their own resolutions. In the example given above, regarding the death penalty decision of the South African Court, the judges not only consulted ECHR jurisprudence but also analysed the arguments and decisions of the highest tribunals of the United States, Germany, Canada, and India, among others. According to Slaughter this kind of dialogue is "the most informal level of transnational judicial contact. While opinions rendered by the courts of other national legal systems are never binding, national constitutional courts turn to foreign decisions for different perspectives on similar issues".

This cross-fertilisation or cross-citation is supposed to enhance the argumentative arsenal of all judges around world. Adjudicators are not required to issue their rulings exactly as constructed in other countries. This exchange is important because several universally valid principles can be found in most national legal systems. Whilst these principles cannot be extrapolated literally, they can be adapted to the legal norms and culture of the nation that is adopting them. This issue is also problematic, as it will be shown in next section.

Finally, the third kind of horizontal interaction among national courts is a meta-juridical form of communication: Judges of different nationalities are holding meetings to share experiences and to learn from one another. Recently, there have been myriads of international conferences and seminars to accomplish this goal. Some of these exchanges have been institutionalised, i.e. the Organization of the Supreme Courts of the Americas, the Worldwide Common Law Judiciary Conference, and the Association of Judges of the Baltic States.

These meetings are organised and promoted by NGOs and professional associations such as the human rights organisation called Inter - Rights (based in London) and the American Bar Association (ABA). Law schools and academics also participate.

It appears that one of the most important features of judicial globalisation is that judges are developing a sense of belonging and empowerment as they proactively participate in a common enterprise: the strengthening of rule of law across the world. This Liberal perspective depicts adjudicators as individuals who are more loyal to this goal than to their own national governments. To assert that judges are becoming more loyal to legal principles than to their own country´s national interest, necessarily implies a change in the traditional understanding of sovereignty. In a Westphalian order, states are the only relevant actors in international law. A state exercises supreme authority over the population within its own territory and, presumably, over all of its nationals as well. Under this model, the nation-state is supposed to be independent from other systems, i.e. states or international organisations. Consequently, the state expresses its will through its agents (i.e. judges) in a monolithic way. Judges can only express the will of the state to which they belong. If it is really true that judges are increasingly committed to enforcement of universal values that do not necessarily bind their governments from a legal standpoint, then the State must be losing its monolithic structure. This fragmentation process implies the emergence of a different understanding of the structure and functions that contemporary states display.