skönsmässigt beslutsfattande i processrättsliga frågor

thereby been handed out to a multiplicity of actors with more limited
jurisdictions (civil courts adjudicating in individual cases).
The degree of decentralization is affected by the choice between classic
and interpretive discretion, as has been described above. The more restrictive
judicial review carried out by appeal courts pursuant to classical discretionary
rules places the emphasis on first-instance decision-making,
whereas the more complete review that interpretive discretion gives rise
to is likely to discourage lower courts from exercising discretion. Furthermore,
the way in which the courts choose to exercise discretion also
affects the level of decentralization. One influential scholar 6 has argued
that judges ought to exercise discretion in the abstract, by developing
“sub-rules” for the situations falling within the scope of discretion, thereby
gradually eliminating it through precedent. The discretionary powers
are then largely exercised by appeal court (including the Supreme Court)
judges. While this method may increase legal certainty and simplify the
application of discretionary rules, it would however run counter to the
purpose of making procedural choices based on the circumstances of
the individual case, as advocated by the legislator. This study therefore
outlines an alternative method, where the discretion is exercised in casu
according to contextual considerations, as a means of remaining loyal
to the purposes of the reforms and to retain discretionary powers at the
lower levels of the judiciary.
As a consequence of decentralization, discretion also thirdly leads to
fragmentation of procedure, both between and within trials. While the
principle that similar cases be treated alike is fundamental also or perhaps
especially in the courts’ exercise of discretion, the risk of inter-trial
fragmentation increases as previous judgments based on discretionary
reasoning lacks the quality of precedent – and other first instance courts’
actions in similar cases may not even be easily known. Thus, different
courts or judges will balance competing interests differently even in highly
similar situations. Intra-trial fragmentation occurs as a court lacks the
capacity and the time to consider the impact of its decision on the procedure
as a whole. The possibility to balance different interests consistently
or to compensate for earlier advantages at later stages is thereby lessened.
Lastly, as was shown in the previous section, discretionary rules enable
harmonisation through the case law of the CJEU beyond what would
have been possible if national procedure were regulated by mandatory
6
The late professor Per Olof Ekelöf.
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