Research Federica Baldan

Abstract

The independence of judicial institutions is one of the most debated issues in the context of the good administration of justice. Scholars have investigated mechanisms and principles fostering the independence of courts and developed sets of "indicators" to assess independence. Despite the vast literature on independence of generalist courts, a fundamental gap exists with respect to specialised courts. Specialised courts face different challenges. In fact, they may be more inclined to make decisions which favour their "mission". Moreover, specialised courts may be more easily influenced by interest groups. This project aims to provide a better understanding of judicial independence in the context of specialised international courts. Desk research will be combined with empirical research in order to identify indicators, mechanisms and guidelines to foster the independence of specialised courts. Additionally, I will provide concrete recommendations to strengthen the independence of the future Brussels International Business Court, Unified Patent Court and Multilateral Investment Court. Although these courts differ with respect to their goals, institutional designs and challenges, they are all subject to intense criticism due to the alleged insufficient guarantees of independence.

Researcher(s)

• Promoter: van Zimmeren Esther
• Fellow: Baldan Federica

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

In recent years, the independence of judicial institutions has represented one of the most debated issues in the context of the good administration of justice. Scholars have investigated mechanisms and principles fostering the independence of courts and developed sets of "indicators" to assess independence. Despite the vast literature on independence of generalist courts, a fundamental gap can be identified with respect to specialised courts. Specialised courts face different challenges than generalist ones. In fact, they may be more inclined to make decisions which favor the "mission" for which they are created. Moreover, specialised courts may - more than other courts - be subject to the influence exerted by interest groups. This project aims to provide a better understanding of judicial independence in the context of specialised courts. Desk research will be complemented by empirical research investigating the projects for the creation of the Brussels International Business Court (BIBC), the Unified Patent Court (UPC) and the Multilateral Investment Court (MIC). Although these courts have different goals, institutional designs and are facing distinct political challenges, they are all subject to intense criticism due to the alleged insufficient guarantees of independence. My final aim is to identify specific indicators and guidelines to asses and foster independence at the BIBC, the UPC and the MIC.

Researcher(s)

• Promoter: van Zimmeren Esther
• Fellow: Baldan Federica

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

Patent systems are criticized increasingly for failing to respond in a coherent and effective manner to key economic, societal, and political challenges, such as climate change and global health problems. Frequently such criticism eventually leads to a push for fundamental patent reforms, including the establishment of new institutions and regulation. Yet, there is a risk that some of these reforms are not apt for achieving the underlying objectives. In Europe and the US, radical patent reforms are taking place today. In Japan, the patent system was changed significantly a decade ago. In view of the strategic role in stimulating research and development, innovation and competitiveness, which is widely attributed to patents, it is important to examine and compare patent systems, the objectives for patent reforms, reform processes and the institutional changes. Such an examination may provide useful lessons on governance experiments in other jurisdictions. The current project has four main aims. Firstly, to examine how patent governance and patent reform processes can be put on firmer theoretical grounds and can be analyzed within a more advanced conceptual framework. In this respect, it aims to add to the state-of-the-art by elaborating on the available governance literature of public administration, comparative politics and institutional change; secondly, to analyze and compare the European, US and Japanese patent reforms, the patent reform processes and the implementation of the reforms; thirdly, to develop a taxonomy of modes of institutional change and, fourthly, to identify best practices. These aims lead to the following research questions: (1) What are pivotal elements for a conceptual governance framework tailored to the particularities of patent systems? (2) What is the state of affairs ("law in the books" and "law in practice") of the implementation of the European, US and Japanese patent reforms? (3) Can a taxonomy of institutional change be developed on the basis of the comparative analysis under (2)? (4) Are there any particular "best practices" that can be derived from the comparative analysis and taxonomy of institutional change, which could be applied within other jurisdictions?

Researcher(s)

• Promoter: van Zimmeren Esther
• Fellow: Baldan Federica

Research team(s)

• Government and Law

Project type(s)

• Research Project