The Feasibility of Regulation: Do National and International Proceedings Overlap?
This chapter sets out the conditions under which jurisdiction interaction between national and international courts may be feasible. First, one has to ascertain that the courts in question operate in a non-hierarchical context. This is sometimes facilitated by identification of hierarchy or non-hierarchy signifiers. Second, the applicability of any international jurisdiction regulating norm depends on the ability of the relevant courts to invoke international law. Third, the two related proceedings need to exhibit a considerable degree of similarity, specifically, involve the same parties and same issues. The chapter discusses the unique challenge of applying these conditions across the conceptual divide between national and international institutions and the different characteristics of the respective legal systems. It concludes that only a flexible approach to the tests of similarity could facilitate the application of jurisdiction regulating rules to the relations between national and international courts.
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