Christopher A. Whytock, Transnational Access to Justice, 38 Berkeley J. Int'l L. 154 (2021).
The study of access to justice has long had a strong domestic focus. This Article draws attention to a different aspect of access to justice, one that has, so far, received comparatively little attention: transnational access to justice. It presents a typology of transnational access-to-justice problems, explains why those problems are distinctive and important to understand and address, and proposes an agenda for further transnational access-to-justice research.
Part I defines the concept of transnational access to justice. Part II develops a typology of transnational access-to-justice problems, including different types of transnational access-to-justice gaps and conflicts. It shows that although some transnational access-to-justice problems are similar to those that arise in domestic disputes, they tend to be exacerbated by the transnational context. Other transnational access-to-justice problems are distinctive because they result from the decentralized structure of the global legal system and generally do not arise in domestic disputes. Part II also shows that transnational access to justice is affected by international institutions in ways that domestic access to justice ordinarily is not. Part III argues that another reason to focus on access to justice from a transnational, as well as a domestic perspective, is that access to justice is a global governance problem, not only a domestic governance problem.
By incorporating the perspective of parties in transnational disputes, and by situating access to justice in the context of the global legal system and global governance, this Article aims to contribute to a more complete understanding of the range of access-to-justice problems that exist in the world and how those problems might be mitigated.