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Petersmann, Ernst-Ulrich --- "Multilevel Judicial Protection of ‘Rule of Law’ in Transnational Regulation Requires ‘Struggles for Justice’" [2012] ELECD 494; in Cafaggi, Fabrizio (ed), "Enforcement of Transnational Regulation" (Edward Elgar Publishing, 2012)

Book Title: Enforcement of Transnational Regulation

Editor(s): Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003725

Section: Chapter 6

Section Title: Multilevel Judicial Protection of ‘Rule of Law’ in Transnational Regulation Requires ‘Struggles for Justice’

Author(s): Petersmann, Ernst-Ulrich

Number of pages: 27

Extract:

6. Multilevel judicial protection of `rule
of law' in transnational regulation
requires `struggles for justice'
Ernst-Ulrich Petersmann

The law is not mere theory, but living force. And hence it is that Justice which,
in one hand holds the scales in which she weights the rights, carries in the other
the sword with which she executes it. The sword without the scales is brute
force; the scales without the sword is the impotence of law.1


I. INTRODUCTION
Globalization has decreased the scope of national regulatory powers and
dramatically increased intergovernmental regulation and transnational pri-
vate regulation (TPR) without adequate democratic, parliamentary and
judicial `checks and balances'. Not only the effectiveness and enforceability
of both TPR and public international regulation, but also their democratic
legitimacy depend on judicial protection of constitutional rights of citizens
and Rule of Law (RoL), with due respect for the legitimate diversity of
national constitutional guarantees of human rights and democratic self-
governance. In addition to dispute prevention, dispute settlement and
judicial clarification of the contested meaning of legal rules and principles,
national and international courts also engage in `judicial governance' by
adjusting `incomplete agreements' and under-theorized legal systems to the
changing needs of citizens and governance. The effectiveness of trans-
national RoL and multilevel judicial remedies depends on their active use
by citizens and on `comity' and cooperation among courts at national,
transnational (e.g. in cases of arbitration), regional and worldwide levels,
based on judicial justification of multilevel protection of RoL by overlap-
...