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Climate change litigation is developing rapidly and pervasively, emerging as a space for legal innovation. Until now, this process has occurred mainly in national courts. The result is a decentralization of the interpretation of human rights relating to climate change. This article argues that such decentralization could, in principle, have a destabilizing impact on claims to the universality of human rights. However, close examination of this litigation shows that a prototype is emerging, certain features of which are becoming 'hard wired' through the process of judicial dialogue. By exploring the content of this prototype, its decentralized development, and its self-reinforcing nature, we see a legal space emerging in which environmental human rights sit between the universal and the contextual. [ABSTRACT FROM AUTHOR]

Copyright of Przegląd Europejski is the property of University of Warsaw and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Derecho del Estado is the property of Universidad Externado de Colombia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The preliminary reference procedure is today the ‘infringement procedure of the European citizen’. Although it was initially designed as a mechanism for judicial cooperation, the procedure soon became an instrument for supranational judicial review of national legislation. Such a discrepancy between the intended role of the preliminary reference procedure and its actual use in practice has important consequences that are yet to be fully explored in the literature. Indeed, how can the Court of Justice appropriately review national legislation through a procedure designed for interpreting EU law? Is the procedure governing the preliminary reference mechanism suitable to perform such a role? In this paper, we focus on one issue in particular: the way in which the Court of Justice gains information regarding the legal and factual background of the case. The Court has long recognised that appropriate knowledge of the factual and legal context of the referred case is a necessary prerequisite to performing its scrutiny and that, in accordance with the judicial cooperation model, such information is provided by the national judge. The Article critically examines the rules of procedures and the case law to show that the national judge certainly plays a key role, but other actors contribute to shaping the Court’s knowledge too. After an analysis of each actor’s role, the Article concludes that the procedure offers few guarantees as to the effective participation of individual parties to the advantage of other actors in the proceedings, increasing the risk of having partial or unbalanced information regarding the legal and factual background of the cases.

Copyright of Ruch Prawniczy, Ekonomiczny i Socjologiczny (0035-9629) is the property of Adam Mickiewicz University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

A response to Rosalind Dixon's Responsive Judicial Review (Oxford University Press 2023) assessing her theory's prospects and caveats in the Romanian constitutional context. The piece analyses recent case law from the Romanian Constitutional Court and highlights three important shortcomings that limit the applicability of Dixon's framework: the tendency toward formalism in constitutional interpretation, an impoverished rights review culture, and the persistent conflictual positioning of the Constitutional Court vis-à-vis other constitutional actors. The article ends by speculating on developments that may yet render responsive judicial review more of a reality in Romanian constitutionalism than present conditions may allow. [ABSTRACT FROM AUTHOR]

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The subject. This article examines the dialogue between the EAEU Court and national courts, on the one hand, as the application by national courts of the court of the integration organization, on the other hand, – as a recourse by the supranational court to the legal constructions that have been developed in the case law of the Member States’ courts.The purpose of the article is to confirm or disprove hypothesis that judicial dialogue between the court of the integration association and the courts of its Member States is the key to the effective application of supranational law.The methodological basis of the research is the doctrine of EU law, as well as the practice of Court of Justice of the European Union. The formal legal interpretation of the EAEU Court decisions and decisions of national Supreme Courts is also used.The main results, scope of application. One of the characteristics that differentiates the law of an integration organization from universal international law is its active application not only by the judicial body of such an organization, but also by the national courts. The plurality of actors in charge of the application of the law raises the question which of them have the authority of interpreting the integration law and the modalities of such an interpretation. One of the instruments that could help overcome the lack of uniformity of approaches regarding the interpretation and application of supranational law by the courts of several member states is the preliminary reference procedure. In the absence of such a procedure the burden of interpretation of supranational law rests on the national courts. Such a situation has arisen in the Eurasian Economic Union where the EAEU Court is empowered to interpret the law of the Union while settling disputes regarding the respect of EAEU law by its Member States, the challenge of the Eurasian Economic Commission's actions (failure to act) and decisions as well as delivering advisory opinions. The courts of the Member States, in turn, interpret the law of the EAEU in various fields of relations, including the ones where regulatory powers have been transferred to the supranational level. The analysis of national case law shows that in their application of EAEU law they premise their judgments on the principle of its primacy over national legislation.Conclusions. Judicial dialogue allows to prevent the non-uniform interpretation of the Union law by the court of the 5 Member States. It is a form of exchange of legal positions and concepts between the judicial bodies which, as a result, leads to a mutual enrichment of the legal orders by borrowing legal constructions and approaches.

Deliberative constitutionalism is one of the most important developments of recent decades in constitutional theory and practice. It is in this context that Cristina Lafont's Democracy Without Shortcuts was published. Lafont's theory provides an opportunity to advance the research agenda on deliberative constitutionalism since she offers a deliberative democratic reinterpretation of judicial review. According to this compelling and powerful idea, citizens can challenge any laws in constitutional courts and thus trigger democratic deliberation about rights. With this issue in mind, this article offers a general approach to deliberative constitutionalism, describes Lafont's reinterpretation of judicial review, and makes explicit five tensions in this reinterpretation of judicial review vis-à-vis deliberative constitutionalism: (1) the default authority in the interim; (2) the procedural type of constitutional amendment; (3) the scope of judicial review; (4) the irrelevance of constitutional amendments; and (5) the scope of constituent power. [ABSTRACT FROM AUTHOR]

This article examines the approach of the European Court of Human Rights (ECtHR) to claims of discriminatory practices linked to armed conflict, as well as the more recent development of overlapping or parallel interstate claims before the International Court of Justice (ICJ) and the interstate procedure of the Committee on the Elimination of Racial Discrimination (CERD), based on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It examines the potential implications of the latter trend for the application and interpretation of non-discrimination norms, and concludes that this should encourage the ECtHR once again towards application and explicit interpretation of Article 14 in armed conflict contexts. Such an approach would recognise the gravity of any discriminatory dimensions of conflict practices; ensure consistency with the ECtHR's own evolving case law on discriminatory violence; and facilitate harmonious interpretation of non-discrimination norms, as well as the ECtHR's autonomous interpretation of the ECHR and participation in judicial dialogue on concepts common to the ECHR and ICERD. [ABSTRACT FROM AUTHOR]

The preliminary reference procedure is today the 'infringement procedure of the European citizen'. Although it was initially designed as a mechanism for judicial cooperation, the procedure soon became an instrument for supranational judicial review of national legislation. Such a discrepancy between the intended role of the preliminary reference procedure and its actual use in practice has important consequences that are yet to be fully explored in the literature. Indeed, how can the Court of Justice appropriately review national legislation through a procedure designed for interpreting EU law? Is the procedure governing the preliminary reference mechanism suitable to perform such a role? In this paper, we focus on one issue in particular: the way in which the Court of Justice gains information regarding the legal and factual background of the case. The Court has long recognised that appropriate knowledge of the factual and legal context of the referred case is a necessary prerequisite to performing its scrutiny and that, in accordance with the judicial cooperation model, such information is provided by the national judge. The Article critically examines the rules of procedures and the case law to show that the national judge certainly plays a key role, but other actors contribute to shaping the Court's knowledge too. After an analysis of each actor's role, the Article concludes that the procedure offers few guarantees as to the effective participation of individual parties to the advantage of other actors in the proceedings, increasing the risk of having partial or unbalanced information regarding the legal and factual background of the cases. [ABSTRACT FROM AUTHOR]

The present article deals with the classic topic of the legal effect of advisory opinions. It aims at clarifying the legal effect attributed by the Special Chamber to the Chagos Advisory Opinion against the traditional views on the legal effects of the International Court of Justice advisory opinions. To this end, the paper will build upon the judicial dialogue that started with the 2015 Chagos Marine Protected Area Award, continued with the 2019 Chagos Advisory Opinion, and ended with the 2021 Mauritius/Maldives Judgment. [ABSTRACT FROM AUTHOR]

The dialogue of the Courts in the European Union could be a veritable centripetal force of integration around the shared values that govern the European constitutional order. This dialogue must be supported by appropriate instruments, as the power regarding the constitutional review of international treaties is regulated by the Romanian Constitution and by other Constitutions of the Member States. However, in Romania, the legislative framework and the actors involved as possible referral subjects determine a purely decorative nature of the power to review international treaties before ratification. In this study, we will analyze the constitutional developments in the matter, outlining regulatory insights for the effectiveness of this power of the CCR and for the strengthening of the judicial dialogue in the EU. [ABSTRACT FROM AUTHOR]

After many years of uncertainty regarding Italian legislation on the attribution of surnames to children, in 2022 the Constitutional Court finally broke the delay and identifid both the general rule governing this issue and its possible exceptions. Unlike in the past, with Judgment No. 131/2022 the Court no longer adopted an attitude of self-restraint by referring to the legislature, but demonstrated judicial activism by "reforming" the entire discipline. The Court has eliminated the last remnants of the automatism of the paternal surname, establishing the double surname as a general rule, that is, the succession of the parents' surnames, and the surname of only one parent as an exception. This contribution develops around three interrelated topics: the first is a reconstruction of the long jurisprudential path that preceded Judgment No. 131/2022, the second is an analysis of the innovations that this judgment brought about, and the third explains how this evolution was largely determined by a progressive adaptation of the solutions taken by the Constitutional Court to the jurisprudence of the European Court of Human Rights. Among the yardsticks of constitutional legality relied on by the Court, no reference was made to the Convention on the Elimination of All Forms of Discrimination against Women, which is the only international treaty that provides for a specific obligation concerning the choice of children's surnames, one intended to ensure equal rights for fathers and mothers. [ABSTRACT FROM AUTHOR]

On April 3, 2019, the Zimbabwe Constitutional Court found unconstitutional moderate corporal punishment on a juvenile male in State v Chokuramba. The decision in Chokuramba was a victory for transnational human rights litigation, as the Court widely cited and applied international and foreign law to discern a global trend, especially the precedents of near neighbors Namibia and South Africa in an important example of South-South dialogue. This article views litigation as a method of norm diffusion, in which transnational litigators serve as norm entrepreneurs who articulate and advance a right through international and foreign legal citations. In pleadings, whether as counsel, amici, or third-party intervenors, lawyers advance human rights norms by building a body of comparative jurisprudence that can be cited in later cases. Chokuramba was a foundational precedent in a Commonwealth-wide "norm cascade" toward abolition of judicial corporal punishment for juveniles. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1341-1356 | Article | (Table of Contents) I. A principle of European law. - II. Building coherence across European legal systems. - II.1. The challenging construction of compatible European standards. - II.2. The problem of the idem: what is criminal? - III. The attempted compromise. - IV. The revived schism. - V. Conclusion. | (Abstract) This Article analyses the recent divergence between the two European Courts on the application of ne bis in idem to double-track procedures from the perspective of judicial dialogue and constitutional pluralism. Although major efforts have been made towards convergence over the past decades, recent case law shows that the potential for conflict - and, possibly, incompatibility - remains wherever the incentive to follow the lead of one authority is insufficient. Pushed to find solutions by the resistance of certain national courts to their converging standards, the European Court of Human Rights and the Court of Justice have chosen very different paths to reach a similar, but not identical, compromise solution. The Article examines the causes of this divergence and its consequences for the protection of this fundamental right in EU Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 887-910 | Article | (Table of Contents) I. Introduction. - II. Conceptual framework and terminology. - III. Data and research design. - III.1. The dataset. - III.2. Research process. - IV. The Court's behaviour. - V. The Court's strategies. - VI. Conclusions. | (Abstract) Recent cases of national court rebellion against the rulings of the EU Court of Justice have raised questions about the meaning of judicial cooperation within the preliminary reference procedure. Although tensions are inevitable, the trust of Member State judiciaries is crucial for the dissemination and enforcement of the Court's rulings. This Article uses legal empirical method to study how the Court cultivates its relationship with national courts. Specifically, it examines the reasoning and drafting style of the Court of Justice when it delivers a judgment that conflicts with the referring court's view, as expressed in the order for reference, on how the questions ought to be resolved. The findings indicate that disagreement with the referring court affects the Court's drafting and justification choices. In particular, the Article identifies two strategies that the Court resorts to when rejecting the view taken by a referring court: conflict avoidance and appeal to (illegitimate) authority. It is argued that these strategies are not conducive to furthering the judicial cooperation that the Court claims to be engaged in, nor to the legitimacy of its judgments within the Member States.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 745-754 | Article | (Table of Contents) I. Introduction. - II. Evolving legal questions surrounding Art. 267 TFEU. - III. Stocktaking: the procedure under pressure? - IV. Contributing to the academic debate. - V. Overview of the Special Section. - V.1. Factors and motives to refer. - V.2. Quality of Court of Justice answers and dialogue. - V.3. Implementation of Court of Justice judgments. | (Abstract) The most important procedure of EU law is the preliminary ruling procedure. Academic scrutiny by way of a Special Section is pertinent for three reasons. Firstly, there are still many out-standing legal and practical questions with respect to Art. 267 TFEU as illustrated by the continuous flow of new judgments of the Court of Justice and European Court of Human Rights. Secondly, there are growing allegations that (some) national court judges are dissatisfied with the procedure, their interaction with the Court of Justice and the resulting answers. Thirdly, there has been little (empirical) research into the effective functioning of the procedure and its application by national courts. The Articles of this Special Section examine - often in an empirical way on the basis of interviews or questionnaires - why national courts refer (or not), what they think of their interaction with the Court of Justice and whether and how they implement the answers of the Court of Justice.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 851-869 | Article | (Table of Contents) I. Introduction. - II. Theoretical framework: why national judges participate in judicial dialogue with the CJEU. - III. Judiciary reforms in Poland 2017-2018: a brief overview. - IV. Preliminary questions as reaction of Polish courts to the judiciary reforms. - V. Defending the rule of law or reality based self-defense? - VI. Conclusions. | (Abstract) In the course of the last two years, the Polish courts frequently resorted to the procedure of preliminary ruling requesting the Court of Justice to qualify the Polish judiciary reforms introduced by the PIS-regime in the light of the principle of judicial independence, the rule of law and effective judicial protection. Against this backdrop, one could suggest that the issue regarding the use of the preliminary ruling mechanism by national courts and the reasons that incentivise the judges to engage in dialogue with the Court of Justice have gained a novel dimension. It is the aim of this Article to discuss the relevant preliminary questions referred by the Polish courts and place them in the context of various theoretical streams that aim at explaining the reasons and motivation behind national courts' participation in judicial dialogue with the Luxembourg Court.

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(2), 871-886 | Article | (Table of Contents) I. Introduction. - II. National court opinion in the preliminary reference procedure. - III. Methods and material. - IV. Results. - IV.1. Active courts: motivations for expression opinions. - IV.2. Passive courts: motivations for not expressing opinions. - V. Passive high court judges? - VI. Concluding discussion. | (Abstract) What motivates national judges to be either active in the preliminary reference procedure by expressing opinions in the requests they send to the Court of Justice or passive by not voicing their views? This Article sheds light on how national judges perceive the possibility of framing the cases they refer to the Court, for instance, by expressing an opinion in defence of the challenged national law. Based on interviews with Swedish judges, this Article shows that the respondents express opinions to provide the Court with information and to influence the development of EU law. The Article also uncovers what motivates national judges not to express opinions. These three previously untheorised motivations are: 1) protecting one's reputation, 2) respecting the division of competences between the Court and national courts and 3) upholding the impartiality of the courts. Furthermore, the findings indicate that high court judges in particular are opposed to the inclusion of opinions in a request. In contrast, most of the interviewed lower court judges view the inclusion of opinions in the requests as practically mandatory. This Article proposes that this difference in attitudes towards opinions between high and low court judges originate from variations in professional norms regarding what constitutes appropriate behaviour.

Although initially the CJEU left no space for the inclusion of national issues in order to establish the founding qualities of EU legal order, such as supremacy and direct effect, more recently the Court has developed a trend towards taking into account the protection of national fundamental rights and constitutional provisions by using EU primary legislation. The new approach adopted by the Luxembourg Court is fostering the judicial dialogue with the national constitutional courts. The aim of the paper is to demonstrate that the "Taricco Saga" represents the last step of this pathway by fitting the qualities of EU legal order in the peculiarity of national legal systems not as national exception but as an issue of European law through concepts like "common constitutional principles". Commenting the features of Taricco II, in particular, it will be demonstrated that this ruling does not contradict Taricco I but, rather, it represents a specification of the interpretation of article 325 TFEU that encompasses also the acknowledgment of an issue linked to the principle of legality, as intended by the constitutional traditions of EU.

The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judic ial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court's refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits. [ABSTRACT FROM AUTHOR]

Copyright of Revus: Journal for Constitutional Theory & Philosophy of Law is the property of Revus - European Constitutionality Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Climate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union's Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights. [ABSTRACT FROM AUTHOR]

International courts regularly cite each other, partly as a means of building legitimacy. This study aims to show that judicial dialogue among the regional human rights courts and the Human Rights Committee has an additional effect: it contributes to the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful because the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the United Nations Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. Using original data, this study demonstrates the extent of citations among the regional human rights courts and from them to the HRC. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism. [ABSTRACT FROM AUTHOR]

This Article aims to examine the social media jurisprudence of national courts in a selected set of EU Member States by focusing on judicial dialogue specifically via references to the case law of other courts. Do judges in social media cases engage with the case law of peers, and if so how and to what extent? The analysis investigates whether national judges draw on the jurisprudence of higher domestic courts, foreign courts and/or European supranational courts—the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)—and explores the use of such jurisprudence. It is based on 147 cases from the constitutional and/or supreme courts of Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia, and Slovenia. Although judicial dialogue is generally limited in the cases under study, the analysis illustrates the different ways in which courts interact with the rulings of peers and informs on the latter's contribution to judicial assessment. [ABSTRACT FROM AUTHOR]

Copyright of Revista Brasileira de Políticas Públicas is the property of Revista Brasileira de Politicas Publicas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Brasileira de Políticas Públicas is the property of Revista Brasileira de Politicas Publicas and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Synesis is the property of Synesis and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(3), 809-821 | European Forum Insight of 17 November 2019 | (Table of Contents) I. Introduction. - II. The principle of transparency in public procurement. - II.1. Transparency before the award of contracts. - II.2. Ex post requirements stemming from transparency. - III. Framework agreements. - IV. The case in the national stage. - IV.1. The contract concluded by Garda and its extension to Valcamonica. - IV.2. The first-instance Judgment. - IV.3. The appeal before Consiglio di Stato and the referral to the Court of Justice. - V. First slip of the Court of Justice: the (inexistent) defective transposition of the Directive. - VI. Admissibility of the preliminary questions: Is it really a framework, despite it lasts nine years? Equivocal conceptions and an unnecessary reprimand from the Court. - VII. The Directive applicable ratione temporis. - VIII. Can a contracting authority sign a framework on behalf of itself and other authorities? - IX. Should the quantity that may be required by the potential users of the agreement be determined? - IX.1. Seven arguments for quantification. - IX.2. Two arguments for express quantification. - X. Conclusions. | (Abstract) Antritrust and Coopservice (judgment of 19 December 2018, case C-216/17) is a peculiar product of the Court of Justice. It is one of a kind in aggregate procurement, a subfield of public procurement that has remained virtually untouched by the Court. A number of very helpful and reasonable directions can be drawn from this judgment with respect to the duration and quantification of framework agreements as well as the identification of the authorities entitled to use them in the case of framework agreements concluded jointly by several authorities. At the same time, it is not a model of adjudication, incurring in some inaccuracies, obvious mistakes, and even unkindness to the referring national court. This surely makes it more enjoyable to read and comment. The present Insight shows the slips of the Court, while highlighting the main directions that can be extracted vis-à-vis the operation of framework agreements and joint contracts.

Copyright of Revista de Direitos Fundamentais & Democracia is the property of Revista de Direitos Fundamentais & Democracia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article discusses the dialogue between the Supreme Courts of Argentina, Brazil and Mexico and the Constitutional Court of Colombia with the Inter-American Court of Human Rights. It assesses the impact of the following variables on this judicial dialogue: the hierarchy and direct effect of human rights treaties, consistent interpretation with international law and judicial postures related to international law. The article develops an analysis of each court's leading cases and discusses whether and how these variables have contributed to dialogue and whether it is possible to identify common patterns in these four countries' relations with the Inter-American Court of Human Rights (IACtHR). We argue that the constitutional status of human rights treaties, the use of the American Convention on Human Rights to control the conventionality of domestic law, the application of the principle of consistent interpretation and a posture of convergence or engagement with international law lead domestic courts to acknowledge an obligation to follow or, at least, consider IACtHR jurisprudence. [ABSTRACT FROM AUTHOR]

This article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a 'transnational judicial public sphere'. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore. [ABSTRACT FROM AUTHOR]

Both the unconditional primacy of the EU law (even over all the national constitutional norms), and the supremacy of any national constitutional rule over EU law, couldn’t be considered as a solution to the accommodation of the constructive interaction between two autonomous legal systems. The pluralistic models come up with a solid explanation on how legal systems interact. However, they fail to provide a solution when it comes to the potential collision of the EU and national constitutional norms. In the last decade, discourse on the notion of national identity has been developing. This concept could be a viable approach in resolving situations (as researched in this article2) bordering on conflict in the pluralistic models.

The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German 'Bundesverfassungsgericht' (BVerfG) and the 'controlimiti' doctrine of the Italian 'Corte Costituzionale'. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in 'Taricco II'. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the 'Corte Costituzionale', the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.

The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

The aim of this article is to better understand the conditions outlined in the 'CILFIT' judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his 'Philosophical Investigations'. In the 'CILFIT' judgment both of these views surface, which imply different challenges to the participants of the EU dialogue. In the conclusion, we suggest how these challenges can be met in order to facilitate a mutually meaningful dialogue about EU law.