Judicial Activism at the World Trade Organization: Developing Principles of Self-Restraint

Abstract:     
The success of the international trade regime has created demands for international environmental policy, labor standards and other social regulatory policy to be incorporated into the WTO. This article examines the extent to which customary international legal norms should be incorporated into WTO jurisprudence and whether the Appellate Body ought to engage in creative interpretation of WTO norms when legislative development appear blocked. The article explores both the incorporation and creative interpretation debates by assessing them in light of three models of WTO decisionmaking: The Judicial Activist Model, the Contractualist Model, and the Legislative Model. The article adopts a contractualist approach arguing that judicial activism undermines the democratic legitimacy of WTO norms and their effectiveness.

Number of Pages in PDF File: 36

Keywords: World Trade Organization, WTO dispute settlement, WTO Appellate Body, international legal theory, trade, social policy, international adjudication, customary international law, trade and environment

JEL Classification: K33, K32

Accepted Paper Series