5.2.2 Where can we find sovereignty in dispute resolution?
We have established that the principle of sovereignty (and its application, the state
monopoly of dispute resolution) is a fundamental concept of international cooperation in procedural law. However, such principles can rarely be found in the case
law of international Conventions. This means that it is not their existence, but their
nature as self-evident truths, that is under question. Still, the traces of sovereignty
can be found in preambles, convention articles on the scope and in reservations
made to such conventions as well as in some forms of case law.
In this section I try to find these traces by using the Finnish national legislation
as an example. National legislation is pronouncedly bound to the territorial
borders of the state. It could be claimed that therefore it is not a representative
example for establishing the claim of sovereignty as a source of justification. This
argument is not without merits, as the scope of this study is cross-border civil
disputes and the claim I make is about private enforcement constituting a
disintegration of sovereignty in justifying dispute resolution. However, these are
precisely the reasons why an example of national legislation is needed.
Firstly, it illustrates how the self-understanding of procedural doctrine still departs
from the nation-state, both in concrete and abstract ways. Concretely, the national acts
stipulate the conditions under which the national courts have jurisdiction, i.e. can
exercise their power as a mandate of the state’s monopoly on violence. Abstractly, this
source of authorisation also shapes the understanding of the relationship between the
courts and the state. This understanding is not necessarily a conscious one; it may well
be that it is an innate and unquestioned assumption that dispute resolution should be
organised by the state by the exact provisions of constitutional law.
Secondly, reference to national legislation still explains the framework in
which the courts function. Similar frameworks exist in most jurisdictions,
although they may have differences due to legislative tactic or legal culture.
However, there are few possibilities for variation of the main theme, as national
rules tend to accomplish the relatively simple task of granting the mandate to
national courts. This is further illustrated by the simplicity of national rules.
Although there are evident differences in both constitutional law and procedural
codes between different states, an example of a national system speaks louder
than the territorial borders that limit its application.
Thirdly, national legislation is more and more often complemented by multinational legal instruments. For example, when EU legislation is applicable, it
takes precedence and national legislation is applied only secondarily. Similarly, the
case law of the ECtHR is followed closely, and the Member States of the Council
of Europe mostly comply with the court’s decisions. Hence, it is likely that the
role of national legislation in procedural law is changing as a result of such
cooperation and these instruments contribute to shared European conceptualisations of fair trial and efficient methods of cross-border dispute resolution. Still, it
should be noted that procedural law is not a forerunner in the Europeanisation or
internationalisation of law. The principle of lex fori, which means that regardless
of the applicable material law a court always applies its own procedural rules, is
Sovereignty and state agenda 121
We have established that the principle of sovereignty (and its application, the state
monopoly of dispute resolution) is a fundamental concept of international cooperation in procedural law. However, such principles can rarely be found in the case
law of international Conventions. This means that it is not their existence, but their
nature as self-evident truths, that is under question. Still, the traces of sovereignty
can be found in preambles, convention articles on the scope and in reservations
made to such conventions as well as in some forms of case law.
In this section I try to find these traces by using the Finnish national legislation
as an example. National legislation is pronouncedly bound to the territorial
borders of the state. It could be claimed that therefore it is not a representative
example for establishing the claim of sovereignty as a source of justification. This
argument is not without merits, as the scope of this study is cross-border civil
disputes and the claim I make is about private enforcement constituting a
disintegration of sovereignty in justifying dispute resolution. However, these are
precisely the reasons why an example of national legislation is needed.
Firstly, it illustrates how the self-understanding of procedural doctrine still departs
from the nation-state, both in concrete and abstract ways. Concretely, the national acts
stipulate the conditions under which the national courts have jurisdiction, i.e. can
exercise their power as a mandate of the state’s monopoly on violence. Abstractly, this
source of authorisation also shapes the understanding of the relationship between the
courts and the state. This understanding is not necessarily a conscious one; it may well
be that it is an innate and unquestioned assumption that dispute resolution should be
organised by the state by the exact provisions of constitutional law.
Secondly, reference to national legislation still explains the framework in
which the courts function. Similar frameworks exist in most jurisdictions,
although they may have differences due to legislative tactic or legal culture.
However, there are few possibilities for variation of the main theme, as national
rules tend to accomplish the relatively simple task of granting the mandate to
national courts. This is further illustrated by the simplicity of national rules.
Although there are evident differences in both constitutional law and procedural
codes between different states, an example of a national system speaks louder
than the territorial borders that limit its application.
Thirdly, national legislation is more and more often complemented by multinational legal instruments. For example, when EU legislation is applicable, it
takes precedence and national legislation is applied only secondarily. Similarly, the
case law of the ECtHR is followed closely, and the Member States of the Council
of Europe mostly comply with the court’s decisions. Hence, it is likely that the
role of national legislation in procedural law is changing as a result of such
cooperation and these instruments contribute to shared European conceptualisations of fair trial and efficient methods of cross-border dispute resolution. Still, it
should be noted that procedural law is not a forerunner in the Europeanisation or
internationalisation of law. The principle of lex fori, which means that regardless
of the applicable material law a court always applies its own procedural rules, is
Sovereignty and state agenda 121