Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

摘要

The fragmented nature of national and international legal and dispute settlement regimes, and theformalistic nature of the customary international law rules on treaty interpretation and conflicts oflaws, offer little guidance on how national and international judges should respond to theproliferation of competing jurisdictions and the resultant incentives for forum shopping and ruleshopping by governments and non-governmental actors in international economic law. Due to theirdifferent jurisdictions, procedures and different rules of applicable laws, national and internationaljudges often interpret international trade law from different (inter)national, (inter)governmental,constitutional and judicial perspectives. This paper explores the judicial functions of national andinternational judges to reach justified decisions based on positive law, on the basis of transparent,predictable and fair procedures, and to interpret international treaties “in conformity with principlesof justice.” Chapters I to III explain some of the “principles of justice” underlying international tradelaw and argue that international rules for a mutually beneficial division of labour among privatecitizens should be construed with due regard to the human rights obligations of governments.Chapters III and IV propose to strengthen international cooperation among national andinternational courts, for instance by negotiating additional WTO commitments to interpret domestictrade laws in conformity with the WTO obligations of the countries concerned and to settle WTOdisputes over private rights primarily in domestic courts, without transforming essentially privatedisputes into disputes among governments.