Call for Papers: Translucent Justice? Transparency and International Courts and Tribunals

24 October 2022

The Department of International Law and Dispute Resolution of the Max Planck Institute Luxembourg for International, European and Procedural Law is pleased to invite papers for a conference on Translucent Justice? Transparency and International Courts and Tribunals in October 2023.

Transparency is an issue, or rather a demand, that has affected every aspect of social life, from art and architecture to governance.[1] In this, it largely predates the judicialization of international law and the well-documented proliferation of international courts and tribunals. Naturally, the centrifugal role of international courts and tribunals in law-making and the concomitant development of the ‘age of information’[2] have led to calls for greater transparency vis-à-vis the functioning of international courts and tribunals, as has been the case for other international institutions.[3] This is while heightened public scrutiny and criticism regarding their legitimacy and efficiency and the rise of new technologies simultaneously has increased the circulation of information and in turn strengthened these demands. Yet, despite its positive contemporary connotation, transparency is not without problems, and could in fact be counterproductive[4] and controversial.[5] It conflicts with the specificities of international courts and tribunals as both international institutions, where state centrism, sovereignty and diplomatic roots are still influential, and as judicial bodies. Certain aspects of the adjudicative process have historically prompted questions, rooted in fair trial ideals, such as deliberation and publicity of hearings and cases. However, in practice, the issue of transparency extends much beyond these. Realistic and practice-based[6] approaches to law and adjudication have contributed to these demands by shifting the attention of lawyers, scholars and stakeholders. Extra-legal factors and ‘unseen actors’[7] are increasingly perceived as being as, or even more, decisive than formal reasoning in explaining and legitimising judicial decisions. By definition, such factors require access to information that exceeds the more traditional forms, instruments and object of international courts and tribunals communication.

This conference aims at refocusing the conversation surrounding transparency and international courts and tribunals. The objective is thus to provide a platform to analyse recent developments in practice as well as scholarship that address manifestations, causes and potential drawbacks of transparency. Such an approach will highlight the reactions of international courts and tribunals to this, ranging from reluctance to strategic use and instrumentalisation. To this end, transparency is understood as access to, and knowledge of, the activity of courts and tribunals for parties, participants and third parties, in the exercise of their functions as judicial bodies as well as institutions generally. The organisers welcome contributions that employ critical, comparative and empirical approaches, through either qualitative or quantitative studies, devoted but not limited to the following themes:

    I. Transparency as a Notion

    1. Relation of transparency with theories of adjudication, justice, fair trial, etc.
    2. Historical, critical and comparative perspectives (different legal systems and cultures and stakeholders

     

    II. Transparency and the Exercise of Judicial Function

    1. Publicity of judgments and decisions including interlocutory decisions (selection, form, redaction, competing interests).
    2. Motivation (content and style), separate and individual opinions versus secrecy of deliberations.
    3. Communication related to case law (press releases, case information sheets, fact sheets, etc.).
    4. Authorship of decisions (including the role non-judicial actors such as registries and secretariats).
    5. Case management.
    6. Elaboration of procedural framework (including the procedure to adopt, amendment process, Dialogue, access to provide input by those directly affected, etc.).
    7. Third party standing and access.

       

      III. Transparency and Courts as Institutions

      1. Selection process of judges and members.
      2. Court management and administration including managerial practices, procedure relating to court committees and oversight including misconduct and disciplinary procedures (both internal and external, including the work of other institutional actors).
      3. External relations and outreach (including social media practices).

       

      Submissions: Abstracts between 400 and 600 words should be submitted to kritika.sharma@mpi.lu and olivier.baillet@mpi.lu by 25 January 2023. Notification of acceptance shall be sent by 1st March 2023. Full draft papers are to be submitted by 15 August 2023. Selected papers will be presented at the conference on 19 and 20 October 2023. The papers will be published as part of a special issue in the Journal of International Dispute Settlement.

      Early career researchers: Submissions by early career researchers (PhD candidates and recent PhD holders) are particularly encouraged and welcome. Co-authored submissions are also welcome.

       

      Please feel free to contact the organisers for any further information:

      Dr. Olivier Baillet, Senior Research Fellow, MPI Luxembourg (olivier.baillet@mpi.lu)

      Kritika Sharma, Research Fellow, MPI Luxembourg (kritika.sharma@mpi.lu)

       

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      [1] C Rowe and R Slutzky, Transparency (Birkhäuser Architecture 1997) 119.

      [2] JK Gamble, ‘International Law and the Information Age’ (1996) 17 Michigan Journal of International Law, 747.

      [3] See A Bianchi and A Peters (eds.), Transparency in International Law (Cambridge University Press 2013) xx and 620.

      [4] DE Pozen, ‘Transparency’s Ideological Shift’ (2018) 128 Yale Law Journal 1, 100, esp. 123-146.

      [5] See for instance the debate between Pauwelyn and Pelc, Steinbach and Sacertoti, following the publication of Joost Pauwelyn, Krzysztof Pelc, ‘WTO Rulings and the Veil of Anonymity’, (2022) European Journal of International Law.

      [6] Jeffrey L. Dunoff & Mark A. Pollack, 'International Judicial Practices: Opening the Black Box of International Courts’ (2018) 40 Mich J Int L 47.

      [7] Freya Baetens (ed), Legitimacy of Unseen Actors in International Adjudication (Cambridge University Press, 2019).

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