The first chapter of the book develops a normative theory of court organisation and decision-making. It provides the normative framework to assess the development and state of the ECJ’s procedural and organisational law. The chapter argues that the procedure and organisation of a court should depend on its role in a political system. To develop this argument, it presents three ideal models of court decision-making: a liberal model, a rule of law model and a democratic model. The liberal model is associated with the theoretical work of Christoph Möllers. He sees the role of courts as protecting individual liberty. The litigants need to be at the centre of the judicial process. The rule of law model, which I associate with Niklas Luhmann’s theory of the judicial process, sees the role of courts not so much in the service of the individual; rather it sees the judicial process as instrumental for creating normative stability by inducing acceptance for court decisions as authoritative interpretations of the law. Finally, the democratic model, that I associate with the theory of adjudication by Jürgen Habermas, conceptualizes courts as democratic organs of a political community. They need to connect to the will of a political community and aim for a procedure that embeds a court’s work in the public sphere.

The introduction highlights the attraction of the idea of human rights. It affords insight into the development of the new international standards, considers the philosophical foundations, presents matters of cross-cultural interpretation, and broaches the subject of controversies. The controversies reveal the underlying tension between cultural relativism and universalism. By turning to difficult challenges, it is possible to come to grips with shared values or cross-cultural universals. The powerful idea of human rights appeals because of the peremptory norms, known as ius cogens, e.g., the rights against slavery and genocide.

The chapter deals with the assignment of cases to reporting judges and judicial formations at ECJ. EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the court’s decision-making process. They perceive a strong tension with the right to a fair trial. The aim of this chapter is to understand why the court maintains a system that has been under severe attack for a long time. By closely analysing the practice of case assignment between 2003 and 2019, charting assignment profiles of individual judges, the chapter argues that the ECJ’s assignment system is a key mechanism for the court’s institutional success. It has allowed the court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. The chapter identifies three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an elite group of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all twenty-seven ECJ judges and eleven Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the court’s agenda.

This chapter explains the basis of the access to justice obligations placed on international organisations (IOs) under international law. One foundational issue is whether or not IOs are capable of being placed under international obligations in general. The answer to this question, as this chapter will show, is most certainly in the affirmative. IOs are international legal persons or ‘subjects’ of international law that possess their own legal personality. This means that international law can bind IOs directly and impose obligations that ought to be implemented by the IO. After showing how international law can directly place IOs under international obligations in general, the focus shifts to whether IOs can be placed under access to justice obligations in particular. The chapter discusses what is meant by access to justice as a value, and how that value has translated into legal rights in the form of the right to a fair trial. The discussion then clarifies how IOs specifically are put under access to justice obligations, including demonstrating the rationale behind doing so. It is argued that IOs are required to provide justice consistently with fair trial guarantees to private persons whenever IO actions adversely impact them.

This chapter develops the criteria relevant to assess a dispute resolution mechanism or DRM’s compliance with fair trial standards. The discussion focuses on the three broad fair trial guarantees that an institutional DRM must incorporate if it is to be considered appropriate. These are independence, impartiality and fairness. First, the discussion shows that for a DRM to be considered independent, it must possess institutional, decisional and personal/individual independence. Those three aspects will be explained succinctly. The chapter then focuses on the concept of judicial impartiality. For a fair trial to be provided, impartiality in its objective and subjective sense is critical. Finally, the chapter demonstrates how the right to a fair trial also demands that a claimant is treated fairly. Fairness is a broad guarantee and is explored through seven sub-component fair trial rights. Fairness cannot be achieved unless the right to equal access to the courts, the right to equality of arms, the right to an oral hearing, the right to appeal, the right to a reasoned judgment, the right to access justice without undue delay and the right to an effective remedy are provided for in the law, and importantly, practically realised.