Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Abstract

Since the establishment of the Permanent Court of International Justice in 1922, governments have consented to, and actively used, an ever larger number of international and transnational courts, quasi-judicial dispute settlement bodies and ad hoc arbitral tribunals for the settlement of disputes over the interpretation and application of rules of international law. Such judicial clarification of disputed interpretations of incomplete, intergovernmental agreements reduces not only the negotiation costs of governments by delegating the clarification of contested facts and legal claims to independent third-party adjudication. Judicial decision-making at intergovernmental, transnational, national and private levels also supplements rule-making and offers citizens judicial remedies for defending their rights and interests. Modern international economic law increasingly complements intergovernmental, legislative, and administrative governance by multilevel ‘judicial governance’ so as to protect rule of law more effectively for the benefit of citizens (Section I). This contribution criticizes the one-sidedly power-oriented perceptions of WTO law as ‘international law among states’ (Section II) and the related perceptions of international judges as dependent agents of states (Section III). Civil society, parliaments and democratic governments should encourage national and international judges to cooperate in their legal task of interpreting citizen-oriented international economic law ‘in conformity with principles of justice and international law’, as explicitly prescribed in the Vienna Convention on the Law of Treaties (VCLT). The legal coherence of multilevel judicial governance depends on protecting principles of procedural as well as substantive justice and a common conception of ‘rule of law’ not only in intergovernmental relations among states, but also vis-à-vis their citizens engaged in, and benefiting from, international trade (Sections IV–VIII).