Since eighteenth century in England, judges empanelled juries of merchants for commercial cases, in order to ensure that judge and jury together has the required expertise to decide the case[1]. Later, the High Court and the Court of Appeal have the right to summon assessors to sit with the judges and to give advice on technical issues arising in the course of the litigation[2]. Under English law, the high Court has several divisions, composed of two of the three judges who are not legally qualified but are appointed for their knowledge and experience. The similar examples like the commercial court (Tribunal de commerce) can also be found in France[3].
Under Swiss Law, in four canons, civil matters could be heard in commercial court, if the cases involve commercial transactions of a certain importance and if at least the defendant is listed as firms in the Swiss commercial register. Commercial courts are composed of three judges and two assessors drawn from the local chambers of commerce[4]. According to the literature, lay judges familiar with the field in question are of great help to the legal specialists to understand the facts of a case, in particular technical and commercial issues. The involvement of lay judges in question results in certain functional similarities with the arbitrational tribunals. As a result, over seventy percent of cases before the Swiss commercial courts end in conciliation, instead of a judgment[5]. This may be seen as a good example of creating a specialized court.
All of above examples indicate that creating specialized courts is not unknown for the European countries and the need of such specialized courts has been long recognized.
Creating a specialized EU patent court is also raised by the Commission[6]. Two advantages of creating a specialized court can be identified. First, specialized courts can be composed of specialized judges having proper training in certain fields. Second, since specialized courts are quickly confronted with a substantial number of cases, as a result, they enjoy a steep learning curve[7]. However, the ECJ expressed that, providing in a specific article, separate from the general provisions applicable to the General Court, for the creation of a separate specialist chamber of the General Court and laying down specific rules on the commissioning the judges of that chamber entails ‘the risk of compromising the structure and integrity of that court[8].’
Considering the difficulty for the EU Court to appoint the appropriate experts aforementioned, also the existence of uncertainty paradox between experts and judges, creating a specialized court may be a proper way to solve these problems. Nevertheless, the scientific disciplines involved in each case vary a lot. A policy debate would arise concerning the appropriate kinds of specialized courts. How many different kinds of specialized courts does the EU need to create? Therefore, this thesis would suggest that, following the ICJ’s approach, to appoint the ad hoc assessors with relevant scientific expertise sitting on the bench to assist the deliberation without the right to vote could be a fundamental remedy. As can be seen, this approach is also similar with the composition of the Swiss commercial court, which is a successful example of the specialized court in Europe.
[6] See proposal for a Council decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent, COM (2003) 807 final.
[7] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 979-980.
[8] See proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance-Opinion of the Court of Justice of the European Community, para. 37.
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