Impact of Globalisation on Judicial process

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Introduction
Since the 1980s, globalization has fundamentally transformed

relationships between nation states as well as the terrain of domestic political,

constitutional, and regulatory frameworks that govern economic and development

policies, particularly in developing nations.

Globalization connects everyone, from the world’s poorest slum dweller

to the richest billionaire. Globalization and Global Justice starts by giving a new

argument for the conclusion that coercive international institutions —whose

subjects who are likely to face sanctions for violation of their rules— must ensure

that everyone they coerce secures basic necessities like food, water and medicines.

Globalization has affected justice delivery mechanisms of nations around the

world. It touches and spreads the legal developments and debates which are going on in

one part of the world to another part of the world. The best example of this is the

development of laws and concepts relating to Human Rights, Competition law,

Intellectual Property Rights, Cyber laws, Media laws etc. in recent times. Globalization

has affected the way these laws have taken shape in different countries around the world.

The provisions of the laws enacted in one country have a bearing on provisions enacted in

another country. This is because of the simple fact that Globalization has linked the

economies of nations which otherwise have no territorial or geographical connection.

All of us associate globalisation with the free movement of capital,

labour, goods and services across national borders. However, these parameters of
economic globalisation cannot be viewed in isolation from other aspects such as

the free exchange of ideas and practices. Especially from the viewpoint of

developing nations, the benefits of increasing foreign investment in any particular

sector should be assessed not only in terms of capital-flows and wealth creation

but also in terms of technology-transfer and the infusion of know-how and best

practices. From this perspective the legal systems in various countries have a lot to

learn from each other both in terms of institutional design and the evolution of

substantive laws. However, there have also been some arguments made against the

free exchange of ideas and practices between legal systems of different countries.

Judicial Punishment has existed in all communities and nations

worldwide, not only today but also in ancient times, as proven by old manuscripts

and even various holy books addressing various misdeeds, religious or otherwise.

While the question of punishment has existed for as long as human history, its

origin is difficult to trace. Rarely do we find any book depicting laws in any

country at any time that does not address the issue of crime and punishment,

although their conceptualisation might differ from one country to another and from

one time to another. Despite its long history, punishment remains a debatable issue

that generates vast volumes of literature on the aims of punishment. Below is a

brief discussion on how Globalization has impacted the administration of justice or

Justice System in India and around the world:

1. Competition Law

India responded positively by opening up its economy by removing controls during

the Economic liberalization. As a result, Indian market faces competition from

 within and outside the country. This led to the need for a strong legislation to

dispense justice in commercial matters and the Competition Act, 2002 was passed.

The history of competition law in India dates back to the 1960s when the first

competition law, namely the Monopolies and Restrictive Trade Practices Act

(MRTP) was enacted in 1969. But after the economic reforms in 1991, this

legislation was found to be obsolete in many aspects and as a result, a new

competition law in the form of the Competition Act, 2002 was enacted in 2003. The

Competition Commission of India, is the quasi-judicial body established for

enforcing provisions of the Competition Act.

2. Law relating to Human Rights

The development of the laws relating to Human Rights around the world can

provide a great insight into how globalization has impacted the way justice is

administered as Human Rights laws kept on developing around the world with the

increase in Globalization and nations nowadays are very concerned about human

rights violations. There have been various conventions and conferences globally to

curb Human Rights violations and to improve the condition of human life and

dignity around the world.

Internationally, there has been a resurgence of critical legal scholarship regarding

the impact of globalization on human rights and constitutional adjudication. All of

us associate globalisation with the free movement of capital, labour, goods and

services across national borders. However, these parameters of economic

globalisation cannot be viewed in isolation from other aspects such as the free
exchange of ideas and practices. Especially from the viewpoint of developing legal

systems in various countries have a lot to learn from each other both in terms of

institutional design and the evolution of substantive laws. However, there have

also been some arguments made against the free exchange of ideas and practices

between legal systems of different countries.

Legal challenges thrown up by the forces of globalisation

Most of the discussions about the legal challenges resulting from

economic globalisation were centred around the multilateral efforts to promote

international trade and investment. In this regard, there has been considerable

scholarship on the dispute-resolution functions of the World Trade Organisation

(WTO) as well as the role of arbitral institutions which facilitate dispute-resolution

in the event of commercial disputes between private parties located in different

national jurisdictions. There has also been some attention given to the settlement

of investment disputes between foreign investors and host governments. Hence,

themes related to international trade law and investment law have become quite

prominent in legal exchanges as well as education.

The impact of globalisation on legal systems

The functioning of our legal systems is also being continuously re-

shaped by the various socio-economic parameters of globalisation. For instance,

reliance on foreign precedents is necessary in certain categories of appellate

litigation and adjudication. For instance in litigation pertaining to cross-border

business dealings as well as family-related disputes, the actual location of the

parties in different jurisdictions makes it necessary to cite and discuss foreign

statutes and decisions. Hence, domestic courts are called on to engage with foreign

legal materials in fields such as Conflict of Lawswhere they are required to rule on

aspects such as proper jurisdiction and choice of law as well as recognition and

enforcement of foreign decrees and arbitral awards. Furthermore, domestic courts

are also required to look into the text and interpretations of international

instruments (i.e. treaties, conventions, declarations) if their respective countries are

parties to the same. However, the room for debate arises with respect to the

citation of foreign precedents for deciding cases where they may not be enough

guidance or clarity in domestic law. This trend has provoked some people to

express their opposition to the reliance on foreign law, especially in cases that

involve difficult questions of constitutional interpretation.

All of us will readily agree that constitutional systems in several

countries, especially those belonging to the common-law tradition have been

routinely borrowing doctrines as well as judicial precedents from each other. The

early years of the United Nations system marked a period which saw

decolonisation in most parts of Asia and Africa. In recent years, the decisions of

Constitutional Courts in jurisdictions such as South Africa, Canada, New Zealand

and India have become the primary catalyst behind the growing importance of

comparative constitutional law.

With the ever-expanding scope of international human rights norms and

the role of international institutions dealing with disparate issues such as trade
liberalisation, climate change, war crimes, law of the sea and cross-border

investment disputes among others, there is a concomitant trend towards

convergence in the domestic constitutional law of different countries. In this era of

globalization of legal standards, there is no reason to suppress the judicial dialogue

between different legal systems which build on similar values and principles.

The ever-increasing person-to-person contacts between judges, lawyers

and academics from different jurisdictions have been the most important catalyst

for transjudicial communication. This takes place in the form of personal meetings,

judicial colloquia and conferences such as the present one which can be devoted to

practice areas as well as academic discussions.

“Fundamental human rights and freedoms are universal. They find

expression in constitutional and legal systems throughout the world;

they are anchored in the international human rights codes to which

all genuinely democratic states adhere; their meaning is illuminated

by a rich body of case law, both international and national.”

Conclusion

I think that globalization produces a new level of justice, WTO, IMF, ICJ, and

others showed that this international level of justice is asymmetrical and only help to

maintain a certain distribution of the values. Globalization affected every facet of life.

Third world countries are most affected in various aspects. There is no right or wrong in

addressing the conditions that exist because it is a reality and is a consequence of us and
for us all. What impact can be felt directly or not, it is very relative, but in principle we

should be able to make it happen for the creation of prosperity for the welfare of all.

On the other hand, for the creation of the welfare of all, human beings

inevitably encouraged and required to uphold justice. Meanwhile, the justice must be

achieved by realizing the coordination and collaboration of integrated, continuous,

sustainable, and environmentally friendly. Moreover, fairness in creating rules and

regulations that organize all interests can only be realized if there are no conflicts of

interest and be able to anticipate all possibilities for any changes that will be more and

more faster and dynamic.

We as human beings are cultured indeed shall endeavor, and the free

enterprise of human beings in thinking and doing to meet their needs will create a

civilization in accordance running times that more and more faster and dynamic, then it

must be realized with the wisdom, where the absence of togetherness wisdom, that in a

sense completely will not be realized. It is none other, human pace in its efforts, certainly

there remains a limit, and as smart-smart humans anticipate it still will not reach

perfection.

So clearly here, that justice even in previous eras, or in the era of

globalization, or in the future era, can only be achieved with the existence of

togetherness, and togetherness mutually beneficial only and can only be realized if we

realize that life is not forever, and we realized over the helplessness of human in

consummate perfection.

Therefore, to avoid disputes that brought chaos and even the destruction of a

civilization that already exists become as the warning to all of us, and on the other hand,

there really is no problem that cannot be resolved, if we face together. Globalization is a

great event in human history. Globalization is not just related to economic issues; it
creates an expansion of the human mind. In this e-age, people all over the world exchange

views and thoughts by the grace of Internet. This augmentation of vision leads to an

awareness of the award of justice that is more appreciably and more humanely delivered

in developed countries. Justice in successful democracies is backed by enlightened

movements that prod the lawmakers to enact better laws. Actually, the judges decide a

case in according with the laws enacted by the legislatures. Globalization brings us close

to what goes on in other countries, and it is no denying the fact that globalization has a

great impact on the delivery of justice.

I think both the globalization and justice should have to understand in broader

terms. As we know, the globalization is a process which promote grater level of

integrations, interactions and interdependencies among and between societies and cultures

of the globe. So, the justice should not be limited to its legal meaning as the globalization

contributes to many areas of the society including economic, legal, social and cultural

aspects.

Sanjay Sarraf
22/03/2021