1 Court structures

1. All countries have courts, of one sort or another, through which they exercise their judicial power. How they organise and structure them is, however, anything other than uniform. Different countries and different legal traditions, take markedly different approaches. Status, history, hierarchy, geography, jurisdiction, specialization and function may all have an effect on how courts are structured. As now may digitisation. Those factors, and the structural differences they promote, as Chase et al rightly note may in turn lead to further differences between countries.^[1] They may, for instance, lead to differences in the nature of the tribunals of fact and law, eg, some civil courts in a jurisdiction may utilise lay participation, whereas others do not, some may use panels of judges, whereas others use a single judge. They may also lead to differences in the legal profession, eg, some civil courts in a jurisdiction may permit non-lawyers to appear as advocates before them, whereas other courts may restrict advocacy to qualified lawyers and, moreover, mandate representation by a qualified lawyer.
2. Two main approaches define, at the most basic level, how a country structures its court system. Those approaches cut across well-known distinctions between common and civil law traditions, as well as other traditions, such as the socialist tradition. Those approaches are constitutional and legislative. Jurisdictions, such as China, Germany, the UAE and the US exemplify the constitutional tradition. To varying degrees, their constitutions both establish their courts and spell out their nature and structure. Article 98 of the UAE Constitution, for instance, establishes its Supreme Court and first-instance courts. Articles 96 to 105 of its constitution then go on to elaborate in some detail on the nature, structure and jurisdiction of those courts; Article 103 further provides that legislation shall specify the manner in which the first-instance courts are organized. Chapter III, Section 7 of China’s Constitution contains a comparable provision for the establishment and structure of its Supreme Court and People’s Courts. A less detailed constitutional approach is taken in Germany, where only the superior State courts, eg, the Federal Constitutional Court and the Federal Court of Justice, are established in the Constitution with little detail other than the division of responsibility between specified superior courts being articulated in the Constitution.^[2] A similarly minimalist approach is taken in the US, where Article III, section 1, establishes the US Supreme Court and provides the power for legislation to establish further, inferior courts. Thus it, like the UAE Constitution, leaves it to legislation to flesh out the structure of its courts.
3. In contrast to the constitutional tradition, countries such as France and England and Wales – one from the civilian tradition with a codified constitution, the other from the common law with an uncodified constitution – highlight the legislative approach. Neither country establishes their courts at a constitutional level.^[3] France opts for a straightforward statutory approach. Legislation establishes and provides the basic structure of its courts.^[4] England and Wales adopt a more nuanced approach. The basic structure of some of its courts is found in the statute, eg, its County Court and Court of Appeal, both of which are entirely the product of legislation.^[5] Its High Court, however, is both a product of the common law and statute; the current legislation that provides for it being the successor to legislation that merged, rather than replaced, its historic common law courts.^[6] 
4. By adopting a legislative rather than a constitutional approach, it might be thought that countries would be able to reform their court structures more readily, and not least in response to changing social needs, than those which set out their basic structure at a constitutional level. Evidence suggests that that is not necessarily the case. The English and Welsh High Court’s structure has been subject to two revisions since its establishment in the 1870s, the last of which was in the 1970s. The Chinese courts, by way of contrast, established within the constitution, have seen their structure subject to reforms from 2014 to promote a more centralised court structure.^[7] That constitutional approaches leave the development of the substantive detail of court structures to legislation ensures that similar approaches can be taken irrespective of the constitutional or legislative basis on which the structure depends. Constitutions may, arguably provide a sounder basis for the establishment of courts, as an aspect of separation of powers or, in China’s case, separation of function within a political system based on unity of power, but they do not necessarily provide any difference in approach to fleshing out that structure than legislative systems. In legislative systems, separation of powers is given effect through providing at a constitutional level, provision for the judiciary and its independence.^[8] 
5. In this a further aspect of structure is highlighted: the extent to which the civil courts are structurally or functionally separate from a state’s other political institutions. In China, there is a functional separation, but no institutional separation of power between the courts and the other branches of power, ie, there is fusion or unity of power.^[9] In England and Wales until 2009 while its first instance courts and Court of Appeal were institutionally and functionally separate from the other branches of power, there was unity of power in terms of its apex court. Its upper house of Parliament exercised both legislative functions and judicial functions.^[10] That unity of power operated via a functional separation between those members of the legislature who could exercise its legislative functions and those who could exercise its judicial ones. Greater emphasis on separation of powers was, however, effected in 2009 with the transfer of the legislature’s judicial functions to the UK Supreme Court. Institutional separation of power and function is, however, the norm in the common law and civil traditions.^[11] It is equally now established in post-socialist^[12] and other traditions^[13].
6. Structure is also as much a consequence of history as it is of status. Courts tend to be the product of historic evolution, whether they are provided for at a constitutional or legislative level. The common law tradition, for instance, owes the basic outline of its court structure to the development of the dual structure common law and equity courts in England from the 11th century.^[14] That initially saw the development of two sets of courts, each of which had discrete jurisdictions. In the majority of the common law world, that dualism no longer exists at a structural level. In some jurisdictions, such as Delaware (US) it does, however, live on in its common law and equity courts.^[15] Similarly, civilian systems can also demonstrate the influence of history. The French dual aspect civil court structure, which contains both ‘judicial courts’^[16] that deal with private law disputes and ‘administrative courts’ that deal with public law disputes, owes its origins and initial development to the French Revolution.^[17] Modernisation and the impact of war have also historically had an effect on the development of court structure. Japan, for instance, has what could be described as a hybrid civil-common law court structure. The civilian aspect was introduced following reforms carried out in the 1860s, whereas they were modified post-World War II through the abolition of separate administrative courts or agencies that dealt with public law matters and the introduction of a US-style omnicompetent Supreme Court.^[18] Modernization underpinned those initial reforms in Japan and historic developments – and particularly modernisation – also underpin court structures in other systems that have transitioned from customary dispute resolution processes to those based around courts. The UAE, for instance, moved from a traditional, tribal-based form of dispute resolution based on Shari‘a law to one more closely aligned with the structures of civilian and common law systems. In doing so, it retained courts with Shari‘a jurisdiction^[19] or in some cases, such as Dubai, civil courts with specific Shari‘a divisions within them.
7. Underpinning the different historical influences are two broad themes: continuity and discontinuity. Common law court structures tend to demonstrate a significant degree of historic continuity. Independence from the UK did not, for instance, result in the development of novel court structures in the US: the common law inheritance prevailed at the state level. Similar patterns of continuity are apparent throughout the common law jurisdictions, such as Canada and Australia.^[20] Greater degrees of discontinuity can, however, be observed in civilian systems, as well as in systems where there has been significant political reform due, for instance, to revolution (such as France, Chile), the aftermath of war (Germany, Japan), or independence from a colonial power (UAE). The introduction of a new constitutional settlement and with it new political structures often brings with it new or significantly reformed judicial and court structures. The new courts mark a break with the previous constitutional settlement in the same way that a new constitution, executive and legislature mark such a break.
8. The second approach to structure concerns hierarchy. Courts could be structured horizontally or vertically.^[21] Predominantly, vertical structures are adopted, which provide for a division of labour and function between courts. At the lowest level of the hierarchy, local or regional courts are established. These ensure that justice can be secured locally, and as such reflect both a broad principle of subsidiarity. They also generally deal with lower-value or lower-complexity civil disputes. As such they give effect to proportionality in structural design. Lower courts tend to also have their own judiciaries and simpler, less complex forms of procedure: thus providing more readily accessible forms of justice for such disputes and matching effectively the level of procedure and cost of litigation to the nature and value of the dispute. Examples of such approaches are evident in, for instance, Germany, where its local courts (Amtsgerichte) are established in each state across the country and state district courts (Landgerichte) are established in major conurbations. The two courts mark a division of labour in terms of value and complexity of dispute. They also highlight a hierarchy of functions. The Landgericht operates as both a court of first instance and as an appeal court. It hears appeals from the Amtsgericht. That hierarchy of function is then repeated as appeals from the Landgericht are heard by the state appeal court (Oberlandesgericht).^[22] Similar approaches are seen in common law^[23] and civilian legal traditions^[24], as well as socialist^[25] and post-socialist traditions^[26].
9. Linked to hierarchy is geography. Geography can have effect on the structure in a number of ways. Specifically linked to hierarchy it can result in the development of local and regional courts, as noted above. The jurisdiction of such courts can be limited not only by reference to dispute value and complexity, but also by reference to geography. The County Courts in England and Wales, for instance, had a limited geographical jurisdiction until they were unified in 2013. Other courts can have a state-wide jurisdiction, federal or national jurisdiction depending on the political structure of the state. The German state courts’ jurisdiction is limited to the federal states (Länder), as are the state courts in the US.^[27] Federal courts operate at a national level administering federal law. And national courts operate at a national level in jurisdictions in unitary states. Geography can also influence where courts are situated. This can particularly affect where specialist courts are based. Commercial courts, for instance, tend to be based in commercial cities, not least ones where there is a thriving arbitral community and arbitral centre. It is therefore no surprise that, as financial and commercial centres with strong arbitral centres, London, Paris, Dubai, Qatar, and Singapore, for instance, have all developed commercial courts.^[28] Geography, as the seat of political power, also influences court structures. Supreme and constitutional courts tend to be situated in capital cities.^[29] Germany stands here as an example where a more diffused geographical approach is found. Its Federal Constitutional Court rather than being based in Berlin is based in Karlsruhe.^[30] 
10. Jurisdictional issues may affect court structure in a broad range of ways. The most obvious structural distinction that arises on such lines is that of the division between systems that divide private and public law matters between separate civil courts, which deal with the former, and administrative courts, which deal with the latter, and those systems that adopt an undifferentiated approach. Typical of the divided or bifurcated approach are countries such as Bulgaria,^[31] Egypt,^[32] France,^[33] Italy,^[34] Spain,^[35] and Taiwan^[36]. Typical of the unified approach where civil courts are courts of general private and public law jurisdiction are, England and Wales and other common law jurisdictions, including the US, as well as countries from other traditions, such as the UAE.^[37] Linked to this a further jurisdictional distinction arises between those states where the civil courts are also constitutional courts and those where the constitutional court sits outside the hierarchy of civil courts. Germany and the US exemplify the two different approaches. Germany’s constitutional court sits outside, and is separate from, the civil courts,^[38] whereas the US Supreme Court is both a constitutional court and a court of general civil jurisdiction.^[39] The main trend in the development of this distinct structural form has been towards the model exemplified by Germany, eg, the development of constitutional courts separate from the civil courts. This has particularly been the case in former socialist and former authoritarian states (eg, eastern European states, Portugal, Spain), where there has been a tendency to adopt the former model. Ferejohn has argued that the basis for this development has been the lasting influence of Kelsen.^[40] 
11. Jurisdiction can affect structure in a number of other ways. It can result in the development of separate religious courts, eg, Shari‘a courts, running in parallel to the general civil courts^[41] or forming separate parts or divisions of the civil courts.^[42] It can also result in the development of separate courts, such as the Maori Land Court in New Zealand.^[43] It can also result in a distinction being made between courts that are focused on domestic matters and those that are focused on international or transnational disputes. This latter structural difference underpins 21st century developments of international commercial or business courts that sit outside the domestic civil court structure. This trend is most noticeable in jurisdictions that seek to develop internationally-facing civil courts as a means to draw litigation into their courts in order to help drive internal economic development, particularly in Europe, the Middle East and Singapore. It is also particularly noticeable within the European Union, where such an increase in national competition between its member states’ courts might seem to be at odds with moves towards greater unity and harmonization amongst them. On the other hand, it could be said to mark the expansion of the European single market philosophy – and hence an instance of political and economic factors influencing the structural design of the civil courts – into the field of civil justice and through that it has created, the driver for the development of international business courts either structurally separate from or forming discrete parts of the existing domestic courts.^[44]
12. Jurisdictional issues provide the basis for a further form of structural issue: court specialization. From a strictly jurisdictional perspective, specialization can manifest itself in the establishment of specialist courts that sit outside of courts of general civil jurisdiction. This is most evident in terms of business and commercial courts, eg, the French tribunaux de commerce, which date back to the medieval period. This structural separation from the ordinary civil courts also manifests itself in the different approaches taken to its judiciary, which is drawn from merchants.^[45] By way of comparison, specialization can also manifest itself within the ordinary civil courts. Again, this can be seen in France, through the development of international chambers focused on commercial disputes, eg, the Paris Commercial Court.^[46] Similar specialization within courts can be seen in England and Wales, and the common law tradition, with its Commercial Court. It sits as a statutory court within the High Court of England and Wales.^[47] It does so along with a specialist admiralty and patents court. Subject matter specialisation can also be seen through the establishment of specialist employment (or labour) courts and tax courts, which sit outside the ordinary civil courts; a feature common to the civilian tradition^[48], not uncommon in the common law,^[49] as well as in the post-socialist tradition^[50] and other traditions^[51]. As with the French tribunaux de commerce, these specialist employment or labour courts tend to draw upon lay expertise, as well as professional judiciary; a feature made more straightforward to implement due to the structural separation from the ordinary civil courts.^[52] 
13. There is one further, significant, and growing structural issue affecting civil courts: digitisation. Over the last twenty years, civil courts’ systems have been increasingly reformed in the light of the development of digital technology. This has, primarily, focused on the replacement of traditional paper-based court processes with digital processes, such as e-filing and e-case management. Digitisation is also now affecting the development and structure of courts in a broader manner. In England and Wales, there have, for instance, been proposals to introduce a wholly digital, online civil court, which would initially have limited subject matter and value jurisdiction, eg, an online small claim consumer court.^[53] In Canada, British Columbia’s Civil Resolution Tribunal,^[54] a standalone civil tribunal, albeit one that is semi-detached from the court system, fulfils that role. Here there is an evident more to transfer certain disputes from the civil courts to the newer online, civil courts or tribunals.^[55] The ultimate aim in these common law jurisdictions may be to replace, over time, their traditional civil courts with online replacements. As Susskind suggests, the two systems could run in parallel for a period of time until the online court was well-established at which point the traditional civil court would cease to exist.^[56] Such structural developments are not confined to common law jurisdictions. China has established three standalone online courts in Hangzhou, Beijing and Guangzhou, whose jurisdiction covers mainly online-focused civil disputes as well as public law disputes.^[57] The Hangzhou internet court, for instance, has a jurisdiction that covers online contractual disputes (eg, digital consumer contracts), internet domain name disputes, online copyright disputes, personal and property right infringement claims, online shopping product liability claims, and online public administration disputes.^[58] 

Abbreviations and Acronyms

ACCP	Code of Civil Procedure (Argentina)
ACHPR	African Court on Human and Peoples’ Rights
ADR	Alternative Dispute Resolution
ALI	American Law Institute
ANCCPC	Argentine National Civil and Commercial Procedural Code (Argentina)
Art	Article/Articles
ATCCP	Code of Civil Procedure (Austria)
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
BID	Banco Interamericano de Desarrollo (Inter-American Development Bank)
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
cf	confer (compare)
ch	chapter
CIDH	Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
CJEU	Court of Justice of the European Union
EBRD	European Bank for Reconstruction and Development
ECLI	European Case Law Identifier
ECtHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
etc	et cetera
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
GDPR	General Data Protection Regulation (EU)
ibid	ibidem (in the same place)
ICPR	Civil Procedure Regulations (Israel)
ICT	Information and Communication Technologies
ie	id est (that is)
IIDP	Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
JCCP	Code of Civil Procedure (Japan)
JPY	Japanese Yen
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
PD	Practice Direction
PDPACP	Pre-Action Conduct and Protocols
pt	part
RSC Order	Rules of the Supreme Court (UK)
SCC	Supreme Court Canada
Sec	Section/Sections
supp	supplement/supplements
TCCP	Code of Civil Procedure (Turkey)
trans/tr	translated, translation/translator
UAE	United Arab Emirates
UK	United Kingdom
UKCPR	Civil Procedure Rules (UK)
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
UP	University Press
US / USA	United States of America
USD	United States Dollar
USFRCP	Federal Rules of Civil Procedure (US)
v	versus
vol	volume/volumes
WB	World Bank

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Legislation

National

Bulgaria

Judicial System Act 2007

Canada

Constitution of Canada

Chile

Constitution of Chile

China

Constitution of China

Croatia

Constitution of Croatia

Egypt

Judicial Authority Act 1972

State Council Law 1972

England and Wales

Senior Courts Act 1981

County Courts Act 1984

Constitutional Reform Act 2005

France

Constitution of France

Germany

German Fundamental Law (Grundgesetz)

Hungary

Constitution of Hungary

Japan

Constitution of Japan

Kazakhstan

Constitution of Kazakhstan

Qatar

Constitution of Qatar

Taiwan

Administrative Court Organization Act 1932

Turkmenistan

Constitution of Turkmenistan

United States of America

Constitution of the United States of America

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