Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President’s powers under Article II of the Constitution and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This article instead focuses on the process of dialogue through which Congress and the President interact in the run-up to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. responses to Syrian President Assad’s use of chemical weapons in 2013, and the rise of ISIS since 2014. By immersing ourselves in the specifics of how the political branches interact, we can assess whether the exercise of war powers is democratic and legitimate. We see that Congress and the President take part in substantive consultation and dialogue, and through that dialogue, Congress and the public become more informed about the interests at stake and the available options. The nation benefits from such war powers dialogue between the two political branches.
{"title":"Congressional and Presidential War Powers as a Dialogue Analysis of the Syrian and Isis Conflicts","authors":"K. Clark, Charles Tiefer","doi":"10.2139/SSRN.2812192","DOIUrl":"https://doi.org/10.2139/SSRN.2812192","url":null,"abstract":"Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President’s powers under Article II of the Constitution and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This article instead focuses on the process of dialogue through which Congress and the President interact in the run-up to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. responses to Syrian President Assad’s use of chemical weapons in 2013, and the rise of ISIS since 2014. By immersing ourselves in the specifics of how the political branches interact, we can assess whether the exercise of war powers is democratic and legitimate. We see that Congress and the President take part in substantive consultation and dialogue, and through that dialogue, Congress and the public become more informed about the interests at stake and the available options. The nation benefits from such war powers dialogue between the two political branches.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"49 1","pages":"683"},"PeriodicalIF":0.0,"publicationDate":"2016-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2812192","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68343924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that the institutional framework within transition economies, including the lack of a liquid capital market and a competitive product market, in addition to the focus on public benefits and socioeconomic development, favors state-owned companies in terms of a nonmarket-based system notwithstanding the popular concept of transaction costs and corporate efficiency. Despite the apparent costs of state ownership, including political considerations, soft budget constraints, and weak profit motivations, there is a rational choice for state ownership in cases when private firms are not able to deliver the same quality of goods at a lower cost. Therefore, this Article offers another insight into questions of corporate efficiency and alternative governance models of state ownership in transitional economies based on the example of Kazakhstan. It attempts to determine whether the models of state ownership existing in transition economies diminish institutional shortcomings and have important implications for capital costs.
{"title":"State ownership in terms of transition: Curse or blessing","authors":"Roza Nurgozhayeva","doi":"10.7298/X4XK8CGC","DOIUrl":"https://doi.org/10.7298/X4XK8CGC","url":null,"abstract":"This Article argues that the institutional framework within transition economies, including the lack of a liquid capital market and a competitive product market, in addition to the focus on public benefits and socioeconomic development, favors state-owned companies in terms of a nonmarket-based system notwithstanding the popular concept of transaction costs and corporate efficiency. Despite the apparent costs of state ownership, including political considerations, soft budget constraints, and weak profit motivations, there is a rational choice for state ownership in cases when private firms are not able to deliver the same quality of goods at a lower cost. Therefore, this Article offers another insight into questions of corporate efficiency and alternative governance models of state ownership in transitional economies based on the example of Kazakhstan. It attempts to determine whether the models of state ownership existing in transition economies diminish institutional shortcomings and have important implications for capital costs.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"54 1","pages":"47-76"},"PeriodicalIF":0.0,"publicationDate":"2016-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71088829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explores international judicial education and training, which are commonly associated with rule of law initiatives and development projects. Judicial education programs address everything from leadership competencies and substantive review of human rights legislation to client service and communication, skills training on docket management software, and alternative dispute resolution. Over the last twenty years, judicial education in support of the rule of law has become big business both in the United States and internationally. The World Bank alone spends approximately U.S. $24 million per year for funded projects primarily attending to improving court performance. And yet, the specifics of judicial education remains unknown in terms of its place in the industry of rule of law initiatives, the number of judges who act as educators, and the mechanisms that secure their participation. This Article focuses on the judges’ experiences; in particular, the judges of the Supreme Court of Israel who were instrumental in establishing the International Organization of Judicial Training.
{"title":"From the Court to the Classroom: Judges' Work in International Judicial Education","authors":"T. Goldbach","doi":"10.31228/osf.io/b8f6j","DOIUrl":"https://doi.org/10.31228/osf.io/b8f6j","url":null,"abstract":"This Article explores international judicial education and training, which are commonly associated with rule of law initiatives and development projects. Judicial education programs address everything from leadership competencies and substantive review of human rights legislation to client service and communication, skills training on docket management software, and alternative dispute resolution. Over the last twenty years, judicial education in support of the rule of law has become big business both in the United States and internationally. The World Bank alone spends approximately U.S. $24 million per year for funded projects primarily attending to improving court performance. And yet, the specifics of judicial education remains unknown in terms of its place in the industry of rule of law initiatives, the number of judges who act as educators, and the mechanisms that secure their participation. This Article focuses on the judges’ experiences; in particular, the judges of the Supreme Court of Israel who were instrumental in establishing the International Organization of Judicial Training.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"49 1","pages":"617"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ICCTs have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers due to absence of systemic law enforcement. This article is premised on the idea that ICCTs fail to procure substantial results due to their delusive persistence in rejecting the factoring of politics in their operation. Thus, I suggest a perspective for arrest warrant enforcement that not only recognizes the relevance of politics but also capitalizes on it. Accordingly, I argue that by fully comprehending its enforcement tools and making use of its political role, the ICC may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement. Based on different compliance theories, I argue that the Office of The Prosecutor of the ICC (OTP) can improve compliance with ICC arrest warrants by making use of third states and non-state actors. In Part I, I address the way states and international actors may assist the OTP towards unwilling to arrest states through inducements, reputational sanctions, and support for enforcement agencies. I propose that external pressure in the form of positive inducements (membership, development aid) or negative inducements (travel bans, asset freezes) as well as condemnation and reputational damage towards non-compliant states, are likely to increase compliance with arrest warrants. In Part II, I examine a strategy for the OTP towards states that are willing to arrest but are unable to do so. In these cases, the OTP would benefit from improving its institutional capacity to identify and use overlapping interests with activist states in the field of human rights and international justice through the establishment of a diplomatic arm within its Jurisdiction, Complementarity and Cooperation Division (JCCD). I unpack the question of what this engagement may look like by examining such a potential relationship between the US and the ICC. Finally, in Part III, I focus on the instances, where civil society has the ability to influence third states or situation states to assist in the execution of arrest warrants. I argue that the OTP ought to include more actively different actors within the global civil society, such as NGOs, transnational networks, and individuals, during its bargaining efforts.
{"title":"Mind the Gap: A Systematic Approach to the International Criminal Court’s Enforcement Problem","authors":"Nadia Banteka","doi":"10.2139/SSRN.2127698","DOIUrl":"https://doi.org/10.2139/SSRN.2127698","url":null,"abstract":"ICCTs have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers due to absence of systemic law enforcement. This article is premised on the idea that ICCTs fail to procure substantial results due to their delusive persistence in rejecting the factoring of politics in their operation. Thus, I suggest a perspective for arrest warrant enforcement that not only recognizes the relevance of politics but also capitalizes on it. Accordingly, I argue that by fully comprehending its enforcement tools and making use of its political role, the ICC may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement. Based on different compliance theories, I argue that the Office of The Prosecutor of the ICC (OTP) can improve compliance with ICC arrest warrants by making use of third states and non-state actors. In Part I, I address the way states and international actors may assist the OTP towards unwilling to arrest states through inducements, reputational sanctions, and support for enforcement agencies. I propose that external pressure in the form of positive inducements (membership, development aid) or negative inducements (travel bans, asset freezes) as well as condemnation and reputational damage towards non-compliant states, are likely to increase compliance with arrest warrants. In Part II, I examine a strategy for the OTP towards states that are willing to arrest but are unable to do so. In these cases, the OTP would benefit from improving its institutional capacity to identify and use overlapping interests with activist states in the field of human rights and international justice through the establishment of a diplomatic arm within its Jurisdiction, Complementarity and Cooperation Division (JCCD). I unpack the question of what this engagement may look like by examining such a potential relationship between the US and the ICC. Finally, in Part III, I focus on the instances, where civil society has the ability to influence third states or situation states to assist in the execution of arrest warrants. I argue that the OTP ought to include more actively different actors within the global civil society, such as NGOs, transnational networks, and individuals, during its bargaining efforts.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67928998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban","authors":"Y. Dutton, Jonathan Bellish","doi":"10.31228/osf.io/xr6e4","DOIUrl":"https://doi.org/10.31228/osf.io/xr6e4","url":null,"abstract":"24 Cornell International Law Journal 299 (2014)","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"47 1","pages":"299"},"PeriodicalIF":0.0,"publicationDate":"2014-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The emergence of global norms of administrative law reshapes the administrative state. In many areas, covering diverse topics such as trade, financial regulation, public health, and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena requires the state to forgo some of its regulatory powers. This Article focuses on the normative challenges posed by this new reality. Part I explicates the way in which the argument presented differs from the global administrative law literature. Whereas global administrative law studies the meta-norms that regulate the activities of global administrative bodies, we focus on the way in which international norms reshape decision-making processes within domestic bureaucracies. This Article develops an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. Part II maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law. The Article takes a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. Thus we focus both on the influence of the WTO system, as reflected in the three recent rulings against the U.S. (the Tuna-Labeling, Clove-Cigarettes, and Country of Origin Labeling (“COOL”) Requirements cases) and on the influence of private transnational institutions such as the International Organization for Standardization, certification bodies such as Social Accountability International (“SAI”), and regulatory scientific institutions such as the International Commission on Non-Ionizing Radia
{"title":"Whose Administrative Law is it Anyway? How Global Norms Reshape the Administrative State","authors":"D. Barak-Erez, Oren Perez","doi":"10.2139/SSRN.2295550","DOIUrl":"https://doi.org/10.2139/SSRN.2295550","url":null,"abstract":"The emergence of global norms of administrative law reshapes the administrative state. In many areas, covering diverse topics such as trade, financial regulation, public health, and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena requires the state to forgo some of its regulatory powers. This Article focuses on the normative challenges posed by this new reality. Part I explicates the way in which the argument presented differs from the global administrative law literature. Whereas global administrative law studies the meta-norms that regulate the activities of global administrative bodies, we focus on the way in which international norms reshape decision-making processes within domestic bureaucracies. This Article develops an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. Part II maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law. The Article takes a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. Thus we focus both on the influence of the WTO system, as reflected in the three recent rulings against the U.S. (the Tuna-Labeling, Clove-Cigarettes, and Country of Origin Labeling (“COOL”) Requirements cases) and on the influence of private transnational institutions such as the International Organization for Standardization, certification bodies such as Social Accountability International (“SAI”), and regulatory scientific institutions such as the International Commission on Non-Ionizing Radia","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"46 1","pages":"455"},"PeriodicalIF":0.0,"publicationDate":"2013-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68075289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-10-07DOI: 10.1093/acprof:oso/9780195370911.001.0001
Ruti G. Teitel
1. Introduction 2. The Faces of Humanity: Origins and Jurisprudence 3. The Ambit of Humanity Law: An Emerging Transnational Legal Order 4. Peacemaking, Punishment, and the Justice of War: The Humanity Law Framework and the Turn to International Criminal Justice 5. Protecting Humanity: The Practice of Humanity Law 6. Humanity Law and the Discourse of Global Justice: The Turn to Human Security 7. Humanity Law and the Future of International Law: Debating Sovereignty and Cosmopolitanism 8. A Humanity Law of Peoples: Normative Directions and Dynamics 9. Conclusion
{"title":"Humanity's Law: Rule of Law for the New Global Politics","authors":"Ruti G. Teitel","doi":"10.1093/acprof:oso/9780195370911.001.0001","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195370911.001.0001","url":null,"abstract":"1. Introduction 2. The Faces of Humanity: Origins and Jurisprudence 3. The Ambit of Humanity Law: An Emerging Transnational Legal Order 4. Peacemaking, Punishment, and the Justice of War: The Humanity Law Framework and the Turn to International Criminal Justice 5. Protecting Humanity: The Practice of Humanity Law 6. Humanity Law and the Discourse of Global Justice: The Turn to Human Security 7. Humanity Law and the Future of International Law: Debating Sovereignty and Cosmopolitanism 8. A Humanity Law of Peoples: Normative Directions and Dynamics 9. Conclusion","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"35 1","pages":"355-387"},"PeriodicalIF":0.0,"publicationDate":"2011-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60641518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars have theorized that rule-of-law reform in post-communist Central Asia and Eastern Europe has been thwarted by a Soviet legacy of disrespect for the law. These scholars argue that ingrained practices of nepotism, influence-peddling, and corruption have undermined formal institutions and left little room for the rule of law to grow. Thus, they argue, successful rule of law reform depends as much upon changing the beliefs that people have about the law as it does upon reforming legal institutions. This argument has resonated with rule-of-law aid practitioners, resulting in a proliferation of civic education programs in post-Soviet states designed to "foster a rule of law culture." Using Mongolia as a primary case study, the article contests the assumptions underlying the civic education approach to rule-of-law reform. It also argues that, given the socio-political realities of many countries in which rule-of-law education programs have been implemented, they are not only likely to fail, but to lead to disillusionment, cynicism, and further disrespect for the law. In some cases, they also risk legitimating unjust laws and authoritarian regimes. This article proposes an alternative to the rule-of-law project: Juries. Rule-of-law reformers have largely rejected jury systems on the ground that juries often disregard or cannot understand the law. Reformers have also feared that juries would discourage foreign investment by introducing just the type of uncertainty that "rule of law" is meant to prevent. This article responds that, in emerging democracies, certainty is less important than contextualized justice that reflects community values. It also argues that the deliberative process of jury decision-making promotes civic engagement, allows broader democratic participation in the law-making project, and may effectively check judicial corruption. Thus, juries may help restore faith in judicial institutions and lead emerging democracies closer to the rule of law ideal.
{"title":"Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies","authors":"Brent T. White","doi":"10.2139/SSRN.1359338","DOIUrl":"https://doi.org/10.2139/SSRN.1359338","url":null,"abstract":"Scholars have theorized that rule-of-law reform in post-communist Central Asia and Eastern Europe has been thwarted by a Soviet legacy of disrespect for the law. These scholars argue that ingrained practices of nepotism, influence-peddling, and corruption have undermined formal institutions and left little room for the rule of law to grow. Thus, they argue, successful rule of law reform depends as much upon changing the beliefs that people have about the law as it does upon reforming legal institutions. This argument has resonated with rule-of-law aid practitioners, resulting in a proliferation of civic education programs in post-Soviet states designed to \"foster a rule of law culture.\" Using Mongolia as a primary case study, the article contests the assumptions underlying the civic education approach to rule-of-law reform. It also argues that, given the socio-political realities of many countries in which rule-of-law education programs have been implemented, they are not only likely to fail, but to lead to disillusionment, cynicism, and further disrespect for the law. In some cases, they also risk legitimating unjust laws and authoritarian regimes. This article proposes an alternative to the rule-of-law project: Juries. Rule-of-law reformers have largely rejected jury systems on the ground that juries often disregard or cannot understand the law. Reformers have also feared that juries would discourage foreign investment by introducing just the type of uncertainty that \"rule of law\" is meant to prevent. This article responds that, in emerging democracies, certainty is less important than contextualized justice that reflects community values. It also argues that the deliberative process of jury decision-making promotes civic engagement, allows broader democratic participation in the law-making project, and may effectively check judicial corruption. Thus, juries may help restore faith in judicial institutions and lead emerging democracies closer to the rule of law ideal.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"43 1","pages":"307-363"},"PeriodicalIF":0.0,"publicationDate":"2009-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose there senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion and dissipation. Indeed, most global institutions are themselves the products of, and in that sense the consummations of, global movements. The relation has always been, and always will be, one of symbiosis.
{"title":"Institutional Fixes Versus Fixed Institutions","authors":"R. Hockett","doi":"10.2139/SSRN.1309700","DOIUrl":"https://doi.org/10.2139/SSRN.1309700","url":null,"abstract":"A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose there senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion and dissipation. Indeed, most global institutions are themselves the products of, and in that sense the consummations of, global movements. The relation has always been, and always will be, one of symbiosis.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"39 1","pages":"537-544"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68160241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation. Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority. This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger. After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.
{"title":"Determining the Appropriate Standard of Review in WTO Disputes","authors":"Andrew T. Guzman","doi":"10.2139/SSRN.1270894","DOIUrl":"https://doi.org/10.2139/SSRN.1270894","url":null,"abstract":"The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation. Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority. This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger. After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":"42 1","pages":"45-76"},"PeriodicalIF":0.0,"publicationDate":"2008-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68155377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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