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Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms

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  • Johann Robert Basedow

Abstract

Judicialization scholarship suggests that states must seek the de‐judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de‐judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de‐judicialization and increased judicialization alike. Second, states' preferences for de‐judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi‐constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor‐to‐state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de‐judicialization while the EU promotes judicialization.

Suggested Citation

  • Johann Robert Basedow, 2022. "Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms," Regulation & Governance, John Wiley & Sons, vol. 16(4), pages 1362-1381, October.
    • Handle: RePEc:wly:reggov:v:16:y:2022:i:4:p:1362-1381
    DOI: 10.1111/rego.12431
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    1. Bonnitcha, Jonathan & Skovgaard Poulsen, Lauge N. & Waibel, Michael, 2017. "The Political Economy of the Investment Treaty Regime," OUP Catalogue, Oxford University Press, number 9780198719557, Decembrie.
    2. Claude Barfield, 2001. "Free Trade, Sovereignty, Democracy: The Future of the World Trade Organization," Books, American Enterprise Institute, number 52877, September.
    3. Petersmann, Ernst-Ulrich, 2019. "How Should WTO Members React to Their WTO Crises?," World Trade Review, Cambridge University Press, vol. 18(3), pages 503-525, July.
    4. Pollack, Mark A., 2003. "The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU," OUP Catalogue, Oxford University Press, number 9780199251179, Decembrie.
    5. Dirk De Bièvre & Arlo Poletti & Lars Thomann, 2014. "To enforce or not to enforce? Judicialization, venue shopping, and global regulatory harmonization," Regulation & Governance, John Wiley & Sons, vol. 8(3), pages 269-286, September.
    6. Smith, James McCall, 2000. "The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts," International Organization, Cambridge University Press, vol. 54(1), pages 137-180, January.
    7. Bown, Chad P. & Keynes, Soumaya, 2020. "Why Trump shot the Sheriffs: The end of WTO dispute settlement 1.0," Journal of Policy Modeling, Elsevier, vol. 42(4), pages 799-819.
    8. Elsig, Manfred & Eckhardt, Jappe, 2015. "The Creation of the Multilateral Trade Court: Design and Experiential Learning," World Trade Review, Cambridge University Press, vol. 14(S1), pages 13-32, July.
    9. Goldstein, Judith & Martin, Lisa L., 2000. "Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note," International Organization, Cambridge University Press, vol. 54(3), pages 603-632, July.
    10. Thomas Dietz & Marius Dotzauer & Edward S. Cohen, 2019. "The legitimacy crisis of investor-state arbitration and the new EU investment court system," Review of International Political Economy, Taylor & Francis Journals, vol. 26(4), pages 749-772, July.
    11. Keohane, Robert O. & Moravcsik, Andrew & Slaughter, Anne-Marie, 2000. "Legalized Dispute Resolution: Interstate and Transnational," International Organization, Cambridge University Press, vol. 54(3), pages 457-488, July.
    12. Christina Davis, 2015. "The political logic of dispute settlement: Introduction to the special issue," The Review of International Organizations, Springer, vol. 10(2), pages 107-117, June.
    13. Todd Allee & Manfred Elsig, 2016. "Why do some international institutions contain strong dispute settlement provisions? New evidence from preferential trade agreements," The Review of International Organizations, Springer, vol. 11(1), pages 89-120, March.
    14. van Harten, Gus, 2007. "Investment Treaty Arbitration and Public Law," OUP Catalogue, Oxford University Press, number 9780199217892, Decembrie.
    15. Stone Sweet, Alec, 2004. "The Judicial Construction of Europe," OUP Catalogue, Oxford University Press, number 9780199275533, Decembrie.
    16. Joost Pauwelyn, 2019. "WTO Dispute Settlement Post 2019: What to Expect?," Journal of International Economic Law, Oxford University Press, vol. 22(3), pages 297-321.
    17. Jonas Tallberg & Michael Zürn, 2019. "The legitimacy and legitimation of international organizations: introduction and framework," The Review of International Organizations, Springer, vol. 14(4), pages 581-606, December.
    18. J.H.H. Weiler, 1997. "The Reformation of European Constitutionalism," Journal of Common Market Studies, Wiley Blackwell, vol. 35(1), pages 97-131, March.
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