Strategic use of courts

Today, a quick side note that isn't particularly relevant to my research but which came up in reading (Gehring 2010, in Deadlocks in Multilateral Negotiations, which I've mentioned before) and which I thought was interesting: one way to get out of a deadlock is to litigate your way out of it. There are enough court or court-like forums out there that one strategy, if you are in deadlock with a negotiating partner or partners, is to strategically bring a case to one of these courts that deals with the issue at hand, and then use the result as a basis for building an agreement. I think this is particularly common in Europe (which has a particularly important history of codifying court case results into regional law), but it happens in other contexts too.

I think this is neat because it isn't obvious why it should work. Of course, it sets a precedent, and there may be a certain level of effect based on the idea that once an alternate, court-based mechanism for dispute resolution has been used, countries ought to expect it to be used again and therefore might as well codify the results. Still, it seems to me that at least part of the effect is basically psychological, and you can imagine a variety of ways that could be true. For instance, there's a lot of general evidence that negotiations tend to coalesce around arbitrary points of convergence once those arbitrary points are mutually known to everyone, so a court ruling could serve that purpose (some have argued this is basically what happened with the early history of the EU). Alternately, a court ruling could change people's estimations of the credibility of their opponents' positions: if I thought you were bluffing before, and I could get you to back down if I negotiated hard enough, a court ruling in your favor on a specific issue might suggest that you weren't bluffing (and even if you had been, that you might not be now).