Workshop: What are courts for?

Courts are a key institution in democratic societies and the rule of law: in addition to resolving conflicts and punishing wrongdoers, they provide an avenue for enforcing one’s rights and holding the government accountable. However, justice systems increasingly consist of bodies other than courts and dispute resolution processes other than adjudication.

In many jurisdictions, such as Germany and the Netherlands, the number of incoming civil law cases has been steadily declining, particularly high-volume commercial cases, raising the question of whether today’s courts still have the trust of society. There is a fear that the law will not be adequately developed in the future if certain cases do not come to the courts anymore. These developments also raise the question whether only courts offer just dispute resolution and law-enforcement services or have paramount societal roles beyond resolving individual disputes.

To what extent could court services be fully privatised and exercised by mediators and arbitrators?

At the workshop titled ‘What are courts for?’ held on 8 May 2025, a group of scholars discussed the different institutions exercising court functions and the role that state courts could and should play in society. Professor Jørn Øyrehagen Sunde (University of Oslo) explained how the functions and roles of courts have changed from pre-state societies to transnational democracies.

A panel consisting of Bart Krans (Leiden University), Tore Lunde and Magne Strandberg (both University of Bergen) discussed the role of sectoral complaints boards and similar in providing access to justice. The panellist agreed that although such bodies provide efficient, specialised justice, they could fragment the justice system, and some of the institutional guarantees are too weak.

• Supreme Court Justice Nina Betetto (Slovenia) argued, based on experiences in Slovenia and elsewhere, that we should not ask whether mediation is suitable, but how much mediation there should be, and how to select cases for mediation. She argued that mediation cannot replace courts altogether.
• Ola Mestad (University of Oslo and Council on Ethics for the Government Pension Fund Global) illustrated how non-courts can contribute to enforcing ESG rules by leveraging their soft power, and inter alia, that they may exclude companies already when the risks, for example, of human rights violations, are unacceptably high.
• Anna Nylund (University of Bergen) discussed the complexity of the justice system and how this has repercussions for individuals and small (and medium) businesses, emphasising the need to develop quality standards to ensure access to quality processes.
• Andreas Paulus (University of Göttingen) deliberated on constitutional courts' role in protecting minority rights by limiting the executive and legislative powers and retaining constitutional law as relevant for contemporary society. In this regard, appointment procedures and length of appointments for justices are of paramount importance.