MA Loth, ‘Who Has the Last Word? On Judicial Lawmaking in European Private Law’

Abstract
This paper analyses the process of judicial lawmaking in European private law as a continuous dialogue between the national courts and the ECJ. It addresses questions into the structure, the legitimacy, as well as the effectiveness of those dialogues. With regard to the first question, a recurring pattern of dialogue is described and explained, namely the practice of claiming the last word without actually using it. In answer to the second question the participation in dialogues between courts is justified from the perspective of finding an equilibrium between the national and supranational interests and values involved (as prescribed by the identity clause of article 4 section 2 TEU). In the third part it is claimed that the quality of the judicial dialogues can be enhanced by better reasoned judgements of the participating courts, in which they truly inform each other on their respective legal systems. Thus, the notion of a judicial dialogue can not only help us to obtain a better insight into the nature of the process of judicial lawmaking, it can also contribute to the improvement of the process itself.

Loth, MA, Who Has the Last Word? On Judicial Lawmaking in European Private Law (March 16, 2018). European Review of Private Law, 2017, 45-70; Tilburg Private Law Working Paper Series No 3/2018.

First posted 2018-03-21 08:21:41

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