“Open Justice” Conference


On 1 and 2 February 2018, the Department of European and Comparative Procedural Law of the Max Planck Institute Luxembourg hosted a conference “Open Justice”, organised in cooperation with Saarland University (Saarbrücken, Germany).

Picture gallery

The conference brought together judges and representatives of the highest European and national courts, academics, legal practitioners, and legal journalists. It provided them with a platform to explore a variety of issues pertaining to the problems of open justice and to re-examine the traditional ideas of the open court principle in light of modern day challenges (especially the growing use of information technologies).

While the first day of the Conference focused on the right to a public hearing and public access to a hearing, the second day was devoted to the transparency of the selection and appointment of judges; the expanding landscape of private dispute resolution; and the phenomenon of vanishing trials. The conference concluded with a roundtable on the topic of the communication of justice between the courts, the media, and the public.

Conference report, by Ana Koprivica

Panel I: Right to a Public Hearing according to Art. 6 ECHR and Art. 47 Charter of Fundamental Rights of the EU: Constitutional Perspectives

Following the opening remarks by Prof. Burkhard Hess, Advocate General Maciej Szpunar (Court of Justice of the European Union) examined the constitutional foundations of the right to a public hearing in Europe, with a particular emphasis on the legal framework and practices at the ECJ. His talk was commented on by Judge Angelika Nußberger (European Court of Human Rights) and Judge Andreas Paulus (German Federal Constitutional Court), who provided an insight into the practices and experiences of their own courts.


Panel II: Public Hearings in Criminal Proceedings

Prof. Katrin Gierhake (University of Regensburg) examined the open court principle in the context of criminal proceedings, with a focus on the situation in Germany. Prof. Katalin Ligeti (University of Luxembourg) highlighted areas of criminal law in which tendencies – toward more secrecy and exclusion of the public – are observed (e.g. terrorism and organised crime). Prof. Ruth Herz (Birkbeck, University of London, former judge in Cologne) shared her judicial, media and academic experience, and explored the relationship between the media and the courts where criminal proceedings are concerned.


Panel III: Public Hearings in Civil Proceedings

Prof. Cécile Chainais (Université Paris 2 Panthéon-Assas) reflected on the principle of public access to civil hearings in the age of information technology. While she acknowledged the necessity of embracing new technologies, she concluded that balance is essential. In a similar tone, Judge Jean-Claude Wiwinius (Cour Supérieure de Justice Luxembourg) recognised the relevance of the new technologies in constituting a contemporary understanding of what a transparent court means. A German perspective on the use of modern technologies within the courtroom and outside the courtroom was given by PD Dr Robert Magnus (Institute for Foreign and International Private and Economic Law, Heidelberg University).


Keynote Speech “Securing Open Justice”

Sir Ernest Nigel Ryder (Senior President of Tribunals in the United Kingdom) examined the principle of open justice as encompassing: the principle of equal access to court, the openness of the courts to public scrutiny and the media, and the requirement of accessibly-written public judgments. He specifically addressed the issue of digital courts, stating that “[our] digital courts must be open courts”. Full text of the speech may be accessed here.


Panel I: Transparency and the Appointment of Judges

Prof. Thomas Giegerich (Europa-Institut, Saarland University) gave a wide-ranging comparative overview of the level of transparency of the selection and appointment procedures at the European Court of Human Rights, the Court of Justice of the European Union, the United States Supreme Court, and the German Federal Constitutional Court. Judge Síofra O’Leary (European Court of Human Rights) acknowledged the risk of transparency becoming an end in itself, while Prof. Alberto Alemanno (HEC Paris, NYU School of Law) advocated for a more transparent process at the two European courts.


Panel II: Privatisation of Justice and Transparency: Arbitration, ADR

Prof. Judith Resnik (Yale Law School) addressed a number of themes pertaining to the privatisation of justice and provided the conference with an extensive account of the situation in the United States with regard to mandatory arbitration and the preclusion of collective actions therein, and therewith coupled problems of resource asymmetry and lack of possibilities for public scrutiny of such processes. In her comment on Judith Resnik’s presentation, Prof. Maxi Scherer (Queen Mary University of London) gave an overview of the transparency efforts and trends in the areas of international commercial and investment arbitration. Dr John Sorabji (Principal Legal Adviser to the Lord Chief Justice and Master of the Rolls) addressed the privatisation of justice from the perspective of England and Wales. Ana Koprivica (Max Planck Institute Luxembourg for Procedural Law) outlined the various privatisation processes and the implications of such processes for the rule of law and the traditional idea of a court, while demonstrating similar outsourcing tendencies which presently exist in Europe.


Roundtable: Communicating Justice: Courts in a Democratic Society

Judge Ferdinand Kirchhof (German Federal Constitutional Court), Prof. Dame Hazel Genn (Centre for Access to Justice, University College London), Joshua Rozenberg QC (hon) (Legal Commentator and Journalist), Prof. Jan Henrik Klement (University of Mannheim), and Advocate General Michal Bobek (Court of Justice of the European Union) were the participants of the roundtable moderated by Dr Joachim Jahn (Neue Juristische Wochenschrift). They emphasised the importance of using the notions of openness, transparency and publicity with precision. Whether transparency is an intrinsic value or instrumental was the topic of the discussion. During the discussion, the differences in the way communication takes place between the judges and the media (UK - Germany) surfaced. The difficulties the press and the public are confronted with when obtaining information about proceedings at the CJEU were also expressed.