Between ‘Member-Driven’ WTO Governance and ‘Constitutional Justice’: Judicial Dilemmas in GATT/WTO Dispute Settlement

Abstract

The power-oriented General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) traditions of ‘member-driven governance’ risk undermining the dispute settlement system of the WTO and its judicial administration of justice. US President Trump, the ‘Brexit’, and non-democratic rulers challenge multilateral treaties and judicial systems by ‘populist protectionism’ prioritizing ‘bilateral deals’. This contribution uses the example of the US blockage of the WTO Appellate Body system for illustrating the ‘republican argument’ why public goods (PGs, res publica) cannot be legitimately protected without judicial remedies, rule of law and democratic governance. Adversely affected governments, citizens, and courts of justice must hold power politics more accountable and publicly challenge illegal WTO practices so as to protect transnational ‘aggregate PGs’ (like the WTO trading and legal system) for the benefit of citizens. WTO members should use their power of majority voting for authoritative interpretations of WTO law supporting ‘judicial administration of justice’ in multilevel governance of the world trading system. Multilevel judicial control of trade regulation legitimizes ‘member-driven governance’ by protecting rule of law as approved by parliaments when they authorized ratification of the WTO Agreement and its legal implementation for the benefit of citizens, their equal rights and social welfare.