Books Developments in PIL Scholarship

Mehtiyeva on the Concept of Judicial Cooperation

la-notion-de-cooperation-judiciaire-9782275073071Kamalia Mehtiyeva (Paris I Panthéon-Sorbonne School of Law) has just published a monograph on the Concept of Judicial Cooperation based on her doctoral thesis (La notion de coopération judiciaire, LGDJ, coll. Droit privé, préf. L. Cadiet, vol. 597, 2020).

The author has provided the following abstract in English:

The diversity of legal orders and their multiplication have led to a growing need to articulate them. In addressing this need, mechanisms of coordination proper to private international law (rules of conflicts of laws and of jurisdictions, lis pendens), based on passive logic in which one legal order holds back in favor of another, reveal to be insufficient.

Parallel to these mechanisms emerged, in a disorganized manner, a whole heteroclite set of more active methods of interaction, both during judicial proceedings and upon their completion, such as mission rogatory, service of process, extradition, European arrest warrant, seizure of assets, Interpol red notices, enforcement of foreign judgments and arbitral awards. The doctoral thesis gathers these diverse mechanisms under the banner of judicial cooperation, not only in order to seek unity behind the apparent diversity, namely by distinguishing a common procedural foundation as well as similar, or at least consistent powers of judges mutually assisting each other, but also to suggest punctual improvements of certain instruments by analogy with features of other mechanisms.

The thesis first strives to analyze diverse mechanisms of judicial cooperation between judges of European Union member states (e.g. European arrest warrant, recognition and enforcement of civil and criminal judgments, European investigation order, obtaining evidence in the European Judicial Area), as well as outside of the European Union (e.g. letters rogatory, service of process, obtaining evidence, extradition, recognition and enforcement of judgements) and interactions between judges and arbitrators (e.g. assistance of the State judge – “juge d’appui”, recognition and enforcement of arbitral awards). The second part of the doctoral thesis is focused on unveiling the unity of the notion of judicial cooperation by defining its criteria and its essence. Thus, behind the analysis of diverse mechanisms of cooperation between national legal orders with each other and with arbitral legal order, as well as in the European order by virtue of the principle of mutual recognition, and the concrete proposals of improvement of some of them, the book reveals a profound unity of the notion of judicial cooperation.

The unity first appears in the criteria of cooperation in so far as it is defined as procedural act, freely accomplished in one legal order upon the request of another legal order for the needs of judicial proceedings with a cross-border element, pending or terminated in the latter. The thesis explains cross-border element not in a usual, geographical sense, characterized by territorial borders, but in a broader one, marked by the limits of jurisdiction of a legal order (national, European or arbitral legal order). Furthermore, the thesis allows to trace a common basis for all types of mechanisms of judicial cooperation, which is reciprocity of relations between legal orders. In that respect, the thesis shows that such reciprocity is rooted in interactions between legal orders, even if it may be stronger between national legal orders belonging to the European Judicial area, as their relations are characterized by mutual trust. Finally, the unity is found in the purpose of judicial cooperation which manifests differently for requesting and requested legal order. For requesting legal order, the purpose of judicial cooperation is obvious : it is to obtain aid from another legal order where the requesting judge is not allowed to act either because of foreign judicial sovereignty (foreign legal order) or its incompetence (arbitral order). As to the requested judge, the purpose behind its action is less clear. The thesis shows that judicial cooperation is a way for the requested judge to contribute to a better management of cross-border litigation.

The study thus reveals that judicial cooperation transforms the core of judicial powers which are no longer reduced to adjudicating cases falling into the scope of  competence of the legal order to which judges belong but is henceforth enriched to include cooperative function(“office coopératif des juges”). The requested judge’s cooperation allows the requesting judge to surpass a cross-border element in the proceedings and thus contributes to a better administration of justice of the requesting legal order.

More details are available here, including free access to the table of contents and the first few pages of the book.