Posted on January 8, 2021
I am thrilled that my good friend Ted Folkman has asked me to write this short celebratory post for the Tenth Anniversary of Letters Blogatory. To mark the passing of a productive decade, Ted asked to provide my thoughts on “where you think the law of international judicial assistance will be ten years from now.” I am always reluctant to play the role of a clairvoyant seer, especially for a topic as multidirectional as international judicial assistance, but I will offer some thoughts on one aspect of this subject that could offer hope and direction as we enter a new decade.
By any measure, the topics that form the broad subject of international judicial assistance are junctures of multilateral engagement. They define when and how courts of one country will acknowledge the executive acts of another (e.g. service of process), the judicial acts of another (e.g. the recognition of foreign judgments), and when they will lend assistance in the taking of evidence or request the same from another court. While sovereigns interact daily at the executive level, these are the instances when at least nominally independent domestic judiciaries interact as global players. While this is important in its own right (so that civil and commercial disputes can be efficiently resolved across national borders), there is another consequence of this interaction: it is where judiciaries judge judiciaries, decide on the propriety of their acts, and in the process elevate vital normative standards to announce what precisely qualifies as “justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world.” (E. Borchard, 1939)