Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU
| Author | Nikita Divissenko,Maria Fanou,Mathias Siems,Nastazja Potocka-Sionek,Jaka Kukavica,Anna Krisztián,Sabrina D’Andrea |
| DOI | 10.1177/1023263X211014693 |
| Date | 01 August 2021 |
| Published date | 01 August 2021 |
| Subject Matter | Articles |
Article
Asymmetric cross-citations in
private law: An empirical study
of 28 supreme courts in the EU
Sabrina D’Andrea*, Nikita Divissenko*,
Maria Fanou**, Anna Krisztián*, Jaka Kukavica*,
Nastazja Potocka-Sionek* and Mathias Siems*
,
***
Abstract
Recent years have seen a growing volume of research on citations between courts from different
countries. This article fills a gap in the current literature by presenting and analysing cross-
citations between the highest domestic courts responsible for matters of private law in the EU
from 2000 to 2018. It addresses two main questions: first, to what extent do judges cite foreign
case law in their decisions? Second, what may explain the varying levels of engagement of
supreme courts with foreign case law? Our findings offer a mixed result as to the nature and
frequency of such cross-citations. Overall, we identify 2984 cross-citations; yet, only in few
instances do we find a reciprocal relationship between the supreme courts of two countries,
while more generally an asymmetric picture emerges. The article also discusses whether
problems with the ease of access to court decisions may partly be responsible for limitations in
the use of cross-citations.
Keywords
Cross-citations, supreme courts in the EU, judicial reasoning, legal families, access to court
decisions
* European University Institute, Florence, Italy
** Queen Mary University of London, London, UK
*** Durham University, Durham, UK
Corresponding author:
Mathias Siems, European University Institute, Via Bolognese 156, 50139 Firenze (FI), Italy.
E-mail: mathias.siems@eui.eu
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211014693
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2021, Vol. 28(4) 498–534
1. Introduction
What, if anything, is the relationship between supreme courts of different countries? It could be
suggested that this question is rather easy to answer as domestic courts may be perceived as similar
to Leibniz’s‘monads’–elements of the universe which are fully internally determined and which
do not interact with each other.
1
However, there is also the view that today ‘judges see each other
not only as servants and representatives of a particular polity, but also as fellow professionals in an
endeavour that transcends national borders.’
2
In particular, it may be suggested that national
supreme courts of a deeply connected regional community, such as the European Union, should
be engaged in forms of judicial dialogue to support regional integration. Indeed, according to prior
research, judicial dialogue of this kind has been increasingly more common in Europe in recent
years: in England
3
, France
4
and most other European jurisdictions,
5
comparative law has been
deemed as the new normal in judicial reasoning. Thus, for example, Andenas and Fairgrieve have
argued that ‘[c]ourts make use of comparative law, and make open reference to it, to an unpre-
cedented extent.’
6
This article fills a gap in the current literature by analysing a particularly visible form of such
regional judicial dialogue, namely citations between the highest domestic courts responsible for
matters of private law in the EU (from herein: ‘supreme courts’
7
). The focus on private law
courts has been chosen as many other studies have specifically examined judicial dialogue in
matters of constitutional law.
8
For constitutional law, some of this research explores judicial
dialogue between courts from different parts of the world (notably the influence of the US
Supreme Court). For EU private law, it can be noted that many topics of private law are at the
forefront of legislative and non-legislative measures undertaken in order to create a common
market,
9
and it has also been asked how far there may be a ‘transformative role of judges as
1. G.W. Leibniz, La Monadologie (Librairie Delagrave 1978, original from 1714).
2. A.-M. Slaughter, ‘A Global Community of Courts’,44Harvard International Law Journal (2003), p. 193.
3. Lord Bingham, ‘There Is a World Elsewhere: The Changing Perspectives of English Law’,41International and
Comparative Law Quarterly (1992), p. 513; Lord Justice Mance, ‘Foreign and Comparative Law in the Courts Teaching
and Practicing Law in the 21st Century: A Symposium Honoring the Distinguished Career of Professor Hans Baade’,36
Texas International Law Journal (2001), p. 415.
4. M. Andenas and D. Fairgrieve, ‘Introduction: Finding a Common Language for Open Legal Systems’, in G. Canivet, M.
Andenas and D. Fairgrieve (eds.), Comparative Law Before the Courts (British Institute of International and Com-
parative Law, 2004), p. xxxi.
5. Ibid at p. xxx–xxxi.
6. M. Andenas and D. Fairgrieve, ‘“There Is AWorld Elsewhere”–Lord Bingham and Comparative Law’, in M. Andenas
and D. Fairgrieve (eds.), Tom Bingham and the Transformationof the Law: A Liber Amicorum (Oxford University Press,
2009), p. 840.
7. This includes general supreme courts with competences to decide on other matters (but not constitutional courts). See
Table 1 in section 2 for the list of courts included in this study.
8. For example, G.F. Ferrari (ed.), Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional
Systems (Brill Nijhoff, 2019); A. Müller (ed.), Judicial Dialogue and Human Rights (Cambridge University Press,
2017); T. Groppi and M.-C. Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges (Hart, 2013).
9. While a European Civil Code is unlikely to emerge in the near future, EU measures in private law feature under a variety
of headings, such as consumer law (‘Consumers’,European Commission (2021), https://ec.europa.eu/info/law/law-
topic/consumers_en), doing business in the EU (‘Doing Business in the EU’,European Commission (2021), https://ec.
europa.eu/info/business-economy-euro/doing-business-eu_en) and civil justice (‘Civil Justice’,European Commission
(2021), https://ec.europa.eu/info/policies/justice-and-fundamental-rights/civil-justice_en).
499
D’Andrea et al.
regards rules of private law in Europe’.
10
As far as empirical research is concerned, prior projects
have examined courts of the EU judicial system from an empirical perspective,
11
while projects
on judicial dialogue have conducted quantitative and qualitative research on a selected number
of supreme courts.
12
This article, and its underlying project, examines cross-citations between all of the
supreme courts of the EU Member States from 2000 to 2018. Specifically, it addresses
two main questions: first, to what extent do these judges cite foreign case law in their
decisions? Second, what may explain the varying levels of engagement of supreme courts
with foreign case law? Citations between these courts (from herein: ‘cross-citations’)form
the basis of analysis in this article, as they present a visible sign of the influence of foreign
courts on a particular court. Having identified 2984 of such cross-citations, this article will
also discuss how the judicial style of some courts causes a reluctance to provide detailed
explanations of the court’s reasoning. In addition, it will suggest that problems with the
ease of access to court decisions may partly be responsible for the limited use of cross-
citations. Thus, this article will show that there is some evidence of cross-citations between
supreme courts in the EU. However, this occurs in rather asymmetric and heterogenic
patterns.
This article is part of a wider project that will analyse further details of these 2984 cross-
citations. For example, while this article discusses the total numberofcross-citationspercourt,
future papers will explore possible variations across time and areas of law. Methodologically,
these future papers will make use of econometric methods and network analysis. Thus, these
papers will use the data on cross-citations in an instrumental way in order to empirically test
certain hypotheses. By contrast, this article is interested in the variations of cross-citations of
each of the courts on their own terms. Given the aim of this article to map the cross-citations
between the 28 courts at a general level, it is acknowledged, but not considered in detail, that
there may also be idiosyncratic reasons that can account for specific cross-citations, be it related
to a particular judge (for example, language skills, foreign legal education, involvement in
judicial networks), a particular case (for example, lawyers referring to foreign precedents, the
prominence or content of a particular foreign judgment) or the infrastructure of a particular court
(for example, having access to a library or database with foreign judgments or research
assistants).
The structure of this article is as follows. Section 2 outlines the courts and population of this
study. This section also introduces a classification of supreme courts by cross-citations,
10. L. Burgers, J. Van Duin and C. Mak, ‘Judges in Utopia The Transformative Role of the Judiciary in European Private
Law’,28European Review of Private Law (2020), p. 883. For the underlying project see also ‘Judges in Utopia: The
New Constructive Approach to the Social Justice Debate in European Private Law’,NWO (2021), www.nwo.nl/en/
projects/452-13-009.
11. See e.g. the projects ‘EUTHORITY: Conflict and Cooperation in the European Union Legal System’, KU Leuven
(2018), www.law.kuleuven.be/euthority/EN;‘EUCLCORP: EU Case Law Corpus Project’, LLECJ (2018), https://llecj.
karenmcauliffe.com/euclcorp/; and ‘The Coding Project’, NoLesLaw (2021), https://noleslaw.net/the-coding-project/.
12. See e.g. M. Gelter and M. Siems, ‘Citations to Foreign Courts –Illegitimate and Superfluous, or Unavoidable?
Evidence from Europe’,62American Journal of Comparative Law (2014), p. 35 (quantitative analysis of 10 European
courts); M. Bobek, Comparative Reasoning in European Supreme Courts (Oxford University Press, 2013) (with
empirical information about five courts); E. Mak, Judicial Decision-Making in a Globalised World (Hart, 2013) (based
on qualitative empirical work in three countries). See also M. Andenas and D. Fairgrieve (eds.), Courts and Com-
parative Law (Oxford University Press, 2015) (collection of papers on a variety of topics).
500 Maastricht Journal of European and Comparative Law 28(4)
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