According to received wisdom, the WTO's judicial branch - its dispute settlement system - is an exceptionally powerful judiciary, both in relation to the WTO's political elements and in comparison to earlier models of international adjudication. Critics of different colours see this strength as the source of illegitimacy, charging the dispute settlement system with judicial activism and arguing that it has been granted powers that are too extensive. Simultaneously, proponents depict the same judicial power as the cornerstone of an advanced model of international constitutional governance, whose promise transcends the field of international trade.
Do these assumptions and viewpoints withstand critical analysis? Is the dispute settlement system really as powerful as it is perceived? Why has this perception gained virtually unquestioned acceptance among such diverse sectors of global society? And what is the role of the political decision-making branch of the WTO, generally neglected in current discourse, in this debate?
This book deals with these questions, challenging both the opponents and constitutionalists of the WTO, with a novel, multidisciplinary approach. Broude's central argument in this `anatomy of judicial influence', is that the WTO has not been constructed as a domestically analogous separation-of-powers system, pitting judicial against political in a competition over normative influence. Rather, the WTO is a dialectical system of governance, with the Membership and political organs creating and maintaining exceptional means of formal vertical control over the judiciary (hence, `judicial boundedness'), while at the same time failing to fulfill their law-making mandate for a variety of reasons and motivations, deliberately entrusting the judicial branch with the task of norm-creation in a broad range of socially and politically contentious issue areas (hence, `political capitulation').
This argument is developed using a comparative judicial politics model combined with legal analysis, assessing the relative power of the WTO dispute settlement system, the European Court of Justice, and the International Court of Justice, each in its own political system, and concluding that the dispute settlement system is in fact a formally weak judiciary, although the Membership assign to it in practice through political capitulation - an enhanced governance role. The mechanisms and expressions of this political capitulation (derived mainly from the Membership's undying loyalty to unmanageable consensus decision-making) and the reasons for its preference and prevalence are analysed with many insightful examples from current WTO affairs, both in the dispute settlement arena, and in the field of political negotiations in the Doha Round. Finally, on the background of the failed Cancún WTO Ministerial Conference and its aftermath, the book critically evaluates the calls for dejudicialization in the WTO as both dangerous and futile, and proposes an alternative agenda for reform, towards an invigoration of the political norm-creating process among the WTO's Membership.
This is a highly readable, wide-ranging study on an important topic employing a broad intellectual framework, drawing from sources as diverse as Clausewitz, Hegel and Schmitt, from the Eastern Carelia case in the Permanent Court of International Justice, through landmark European jurisprudence, to the latest WTO Panel and Appellate Body Reports. Prof. Donald McRae has written that this book is "an important, useful and fascinating contribution to our understanding of the WTO and of the relationship between judicial and political organs in international institutions more generally". As such, it will be instructive and stimulating not only for WTO scholars but to anyone interested in global governance academics and practitioners, international and domestic lawyers, political scientists and economists. It does not treat the WTO dispute settlement system as a self-contained phenomenon but rather locates it, through textured and evocative analysis, in the broader context of modern international adjudication and contemporary global politics.
Contents in Brief
Preface Prof. Dr.Claus-Dieter Ehlermann
Chapter I Introduction: An Anatomy of Judicial Influence in the WTO
Chapter II Relative Judicial Power: A Conceptual Exposition
Chapter III Judicial Power in the Contemporary Debate on Legitimacy and Governance in the WTO and the Constitutional Narrative of International Judicialization
Chapter IV
Building a Framework for Comparing Relative Judicial Power
Chapter V Comparative Models of International Adjudication: The WTO Dispute Settlement System, ICJ and ECJ
Chapter VI Organizational Determinants of Relative Judicial Power
Chapter VII Interactional Determinants of Relative Judicial Power
Chapter VIII Legal Determinants of Relative Judicial Power
Chapter IX
Relative Judicial Power in the WTO: An Overview of Comparative Results and Some Immediate Conclusions
Chapter X The Alternative Narrative of Judicialization and the Dialectic of Governance in the WTO: Bounded Judicial Power and Political Capitulation
Chapter XI Post-Conclusion: Towards an Invigoration of International Political Governance
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