From ‘Prisoner's Dilemma’ to Reluctance to Use Judicial Discretion: The Enemies of Cooperation in European Cross-Border Cases

Abstract

The paper deals with cooperation in European cross-border cases. Two main ideas are put forward. The first idea is that cooperation requires a legal framework which is certain—otherwise, prescriptions imposing duties of cooperation and communication might produce ‘prisoner’s dilemmas’ and, paradoxically, an unwillingness to cooperate. The second idea is that prescriptions imposing duties of cooperation and communication have an intrinsic open texture—this characteristic ontologically requires courts and insolvency practitioners to make choices between different rulings and activities. These findings imply that, while interventions, both at European level and at national level, aiming at making the legal framework more certain are always welcome, any interventions aiming at better specifying contents and the extension of duties of cooperation and communication might even be useless and counterproductive.