Academic journal article Texas International Law Journal

The German Supreme Court: An Actor in the Global Conversation of High Courts

Academic journal article Texas International Law Journal

The German Supreme Court: An Actor in the Global Conversation of High Courts

Article excerpt

I. INTRODUCTION

A number of times I have taught seminars on the enforcement of intellectual property rights together with a British colleague, a judge at the Royal Courts of Justice in London. The seminars, organized by World Intellectual Property Organization (WIPO), were held all over the world, and the idea was always the same: a judge from a common law country and a judge of a country with a civil law background were to report on their experience in intellectual property cases. Living in a part of Europe where traveling half an hour west takes you into France and traveling half an hour south takes you into Switzerland, I am very conscious of the limited scope of the legal system in which I have been trained. I was fascinated all the more by the fact that my British colleague belonged to a legal system in which the sun never sets. No matter where we went-Brunei, Zimbabwe, India, Singapore, Australia, the West Indies-legally he was at home. On top of that, his judgments were read and considered as more than persuasive authority in all common law countries. For many former British colonies, being part of the common law system is certainly not the worst part of their colonial heritage. In fact, Germany has exported some of its important codifications: Greece, Turkey, Japan, and South Korea have taken over the Code of Civil Procedure or the Code of Commercial Law, and in more recent years the Eastern European countries have copied Western legislation to quite an extent. But once exported, the law started a life of its own, giving rise to a dialogue between academics but rarely between courts.

When we discuss the global conversation among courts, however, we are not only thinking of these kinds of traditional links. We are also thinking of legal systems growing together despite differences as to their background. I would like to describe this growing together of legal systems as a scale of different stages of cooperation-beginning with a rather loose, more or less accidental contact and ending with a well-established cooperation following certain rules and resulting in a network structure between the courts involved. In order to make this more specific, I will have to refer to particular subjects and to particular courts.

II. SCALE OF COOPERATION

Let me now come to what I have referred to as a scale of cooperation starting with a loose contact and ending with a well-established cooperation that has resulted in a network between the courts.

A. First Step: Cooperation of Judges as a Means of Generating a Supply of Solutions

At the first step of the ladder, cooperation of courts is nursed more by academic curiosity than by legal necessity. At this step we are looking at legal systems that hardly have any common ground. What they have in common are the tasks to be solved. But they do it with different means. Hence, at this step the cooperation of courts functions as a way to get to know different legal systems. Such a comparison can be constructive because judges are taught two things: First, comparing the law will generate a supply of solutions. Second, by getting acquainted with different legal systems we learn to see our own law in relative terms. Things that we have always taken for granted are suddenly questioned when we have to explain to colleagues why we solve a problem in the way we do. I will give you two examples of such a stimulating exchange:

(1) In German civil procedure there is no pretrial discovery. As a rule, the plaintiff has to be able to present the facts of the case to the court. The rules of evidence in the Code of Civil Procedure only have the function to find out whether, if contested, the story that the plaintiff has told the court is true or not. It may not be used for fishing expeditions. This general attitude has led to a very narrow interpretation of a provision in the German Civil Code, which allows for the inspection of objects or documents that are in the possession of the defendant or any third party. …

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