The judicial task of administering justice in trade and investment law and adjudication

Abstract

International customary law requires interpreting treaties and settling related disputes ‘in conformity with principles of justice’ and the human rights obligations of states. Yet, in contrast to UN law, European economic law and related adjudication by the International Court of Justice (ICJ) and European courts, international trade and investment agreements and related adjudication tend to avoid references to ‘principles of justice’ and human rights. This contribution argues for a more coherent ‘judicial methodology’ in multilevel economic adjudication in order to promote ‘judicial comity’ and transnational rule of law for the benefit of citizens. As the incorporation of human rights into positive international law entails the recognition of individuals as legal subjects, judicial regard to human rights and other ‘principles of justice’ is indispensable for determining the ‘object and purpose’ of modern international economic law (IEL) (i). By acknowledging the ‘dual nature’ of modern legal systems (ii) and the common core of ‘principles of justice’ underlying multilevel guarantees of equal freedoms and sovereign rights to protect public interests, economic adjudication could become more legitimate and more coherent (iii). The ‘methodological individualism’ underlying human rights law (HRL) and constitutional democracies justifies a presumption of conceptualizing private and public economic regulation as integral parts of IEL aimed at protecting reasonable self-interests and equal rights of citizens (iv). The ‘consistent interpretation principle’ recognized in national and international legal systems confirms the need for ‘de-fragmenting IEL’ based on ‘normative individualism’ (v). Economic adjudication derives its constitutional legitimacy from protecting ‘constitutional justice’ as a constitutive principle not only of HRL but also of modern trade and investment adjudication (vi) It requires respect for legitimate ‘constitutional pluralism’ (vii) and transnational cooperation among courts so as to protect rule of law not only in terms of rights of governments but also for the benefit of private economic actors (viii). Judicial rule-clarification (ix) and judicial ‘system building’ are necessary parts of judicial protection of transnational rule of law so as to improve the ‘incomplete’, fragmented and often power-driven IEL system for the benefit of citizens as the ultimate sources of values and democratic owners of governance institutions (x).