Global governance crises and rule of law : lessons from Europe’s multilevel constitutionalism

Abstract

The United Nations (UN) has defined the ‘rule of law at national and international levels’ as ‘a principle of governance in which all persons, institutions and entities, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with internationally recognized human rights’. Such a ‘rule of law’ has emerged in worldwide trade and investment law only since the 1990s with the ‘judicialization’ of GATT/WTO law and investor-State arbitration (ISA). Both GATT/WTO adjudications and ISA are being challenged today. The power-oriented blockage of Appellate Body (AB) nominations by the US has rendered the WTO AB dysfunctional and reintroduced power politics into the WTO dispute settlement system. ISA is rejected by some developing countries as well as inside the European Union as a threat to democratic constitutionalism. Europe’s ‘integration through law’ has also been challenged by the German Constitutional Court in its judgment of 5 May 2020, whereby it refused to comply with a ruling of the European Court of Justice (CJEU) on the grounds that the CJEU exceeded its powers and ‘arbitrarily’ undermined constitutional democracy. This contribution explores lessons learned from, and responses to, such ‘systemic crises’ of the multilateral legal order.