may vary. Foreign decisions are at best persuasive, foreign experience may be
rejected as inapplicable, and a principle applied by a foreign court is likely to
be adapted to local needs. The extent to which judges refer to legal experience
outside their own jurisdiction also differs greatly, between states in which
the practice is common and those in which it is extremely rare. Judicial engage-
ment may be increasing, but differences in judicial practice make it difficult to
trace in a reliable way. Some courts provide elaborate reasons for decisions in
which they canvass foreign legal experience even if, finally, they reject it. Others
may take foreign experience into account but do not habitually publish lengthy
reasons so that the opportunity to acknowledge a foreign source explicitly does
not arise.^32
Procedural differences between courts also affect the way in which foreign
experience is introduced during deliberation, the point at which it is taken into
account in reasoning and its source. In some it is introduced through the
arguments of parties and other interested groups where wider intervention is
allowed.
33
In others it is introduced by the judge rapporteur during the delibera-
tive phase or by a decision of the court to call on comparative expertise.
34
Knowledge of foreign experience may be held within a court as a result of the
education path of individual judges,
35
through the presence of foreign clerks,
36
through international networks in which judges participate,
37
as a result of the
presence of foreign judges on a court
38
or through an avenue of appeal to a
foreign court.
39
Historically there have been multiple spheres of influence
within which judicial engagement occurs, centred on the more prominent consti-
tutional courts of the world.
(^40) While this remains the case, internationalisation
(^32) See Cheryl Saunders, ‘Judicial engagement with comparative law’, in Tom Ginsburg and
Rosalind Dixon (eds.),Comparative Constitutional Law(Cheltenham: Edward Elgar,
2011 ), p. 571.
(^33) Tushnet, ‘Inevitable globalization’, at 989. The scope of the right to intervene varies. In
Australia, for example, it is relatively restricted: Susan Kenny, ‘Interveners and amici
curiae’ ( 1998 ) 20 Adelaide Law Review 159.
(^34) Saunders, ‘Judicial engagement with comparative law’, at 579.
(^35) David S. Law and Wen-Chen Chang, ‘The limits of global judicial dialogue’ ( 2011 ) 86
Washington Law Review 523 at 558.
(^36) For example, the Constitutional Court of South Africa has a specific clerkship programme
for foreign clerks.
(^37) Anne-Marie Slaughter,A New World Order(Princeton: Princeton University Press, 2004 ),
pp. 65 – 103.
(^38) For example, foreign judges may sit on the Hong Kong Court of Final Appeal; courts in
some Pacific island nations; and the Constitutional Court of Bosnia and Herzegovina.
(^39) For example, an appeal lies to the High Court of Australia from the Supreme Court of
Nauru. See also the proposed arrangements for appeals from Honduras to the Privy
Council in London:The Guardian, 22 July 2012 ,www.guardian.co.uk/law/ 2012 /jul/ 22 /
honduras-london-courts.
(^40) These have included at least the Constitutional Court of Germany, the Supreme Court of
the United States and the House of Lords.