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Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

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  • Ernst-Ulrich Petersmann

Abstract

The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant incentives for forum shopping and rule shopping by governments and non-governmental actors in international economic law. Due to their different jurisdictions, procedures and different rules of applicable laws, national and international judges often interpret international trade law from different (inter)national, (inter)governmental, constitutional and judicial perspectives. This paper explores the judicial functions of national and international judges to reach justified decisions based on positive law, on the basis of transparent, predictable and fair procedures, and to interpret international treaties in conformity with principles of justice. Chapters I to III explain some of the principles of justice underlying international trade law and argue that international rules for a mutually beneficial division of labour among private citizens should be construed with due regard to the human rights obligations of governments. Chapters III and IV propose to strengthen international cooperation among national and international courts, for instance by negotiating additional WTO commitments to interpret domestic trade laws in conformity with the WTO obligations of the countries concerned and to settle WTO disputes over private rights primarily in domestic courts, without transforming essentially private disputes into disputes among governments.

Suggested Citation

  • Ernst-Ulrich Petersmann, 2006. "Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System," EUI-LAW Working Papers 44, European University Institute (EUI), Department of Law.
  • Handle: RePEc:erp:euilaw:p0073
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    References listed on IDEAS

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    1. Follesdal, Andreas & Hix, Simon, 2005. "Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik," European Governance Papers (EUROGOV) 2, CONNEX and EUROGOV networks.
    2. Mario Savino, 2005. "The Constitutional Legitimacy of the EU Committees," Les Cahiers européens de Sciences Po 3, Centre d'études européennes (CEE) at Sciences Po, Paris.
    3. repec:cup:apsrev:v:99:y:2005:i:01:p:29-43_05 is not listed on IDEAS
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    Keywords

    WTO; governance; international trade; dispute resolution; European Court of Justice;

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