Abstract
AbstractJudicialization scholarship suggests that states must seek the de‐judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de‐judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de‐judicialization and increased judicialization alike. Second, states' preferences for de‐judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi‐constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor‐to‐state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de‐judicialization while the EU promotes judicialization.
Highlights
States have established thousands of international dispute settlement mechanisms (DSMs) in the last decades, which play a central role in modern global governance (Alter 2014; Koremenos 2016)
The analysis focuses inter alia on communications in the World Trade Organization (WTO) and United Nations (UN) Commission on International Trade Law (UNCITRAL) working groups during the last decade from the Office of the United States Trade Representative (USTR) and the Directorate-General (DG) for Trade of the European Commission, which are responsible for trade and investment policies
It cautions that judicialization and state perceptions of regulatory space are not conceptual flipsides as often assumed in judicialization research
Summary
States have established thousands of international dispute settlement mechanisms (DSMs) in the last decades, which play a central role in modern global governance (Alter 2014; Koremenos 2016). In the language of principal-agent theory, states with a contractual conception of international law should consolidate their regulatory space and curtail judicial autonomy through control over delegation per se whereas states with a quasiconstitutional vision should seek greater formal and informal, institutional and procedural ex ante and ex post checks on judicial autonomy (Pollack 2003). The article illustrates these arguments at the example of recent US and EU efforts to reform the WTO DSB and ISDS. The last sections operationalize the argument and develop the case studies
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