Between Dialogue and Decree: International Review of National Courts

Abstract:     
Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found a Mississippi jury trial to have been the antithesis of due process.

Much of the interaction of courts across national borders - including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments - has been analyzed through the metaphor of dialogue. As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dialogue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraint in international adjudication, recent interactions between international tribunals and domestic courts incorporate a significant dimension of review in both the literal and figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of power further distinguishes emerging cases of international review from transnational dialogue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, such international engagement with national courts represents a distinct pattern of judicial interaction, one I develop and detail as dialectical review.

Defined broadly as a hybrid of appellate review and dialogue, the nature of dialectical review can be elaborated by examining other hybrid judicial interactions - federal habeas review of state criminal convictions and appellate courts' use of dicta as a signaling device to lower courts. In each of these cases, a form of dialectical review serves as a mechanism of legal innovation. In the face of accelerating trends of globalization, a pattern of dialectical review among international and national courts can help to facilitate the emergence, evolution, and internalization of universal norms of due process. The present analysis thus offers international and domestic judges as well as policymakers a framework for understanding and facilitating beneficial judicial interaction in an ever-shrinking world.

Keywords: international, transnational, supranational, trade, investment, investor-state, court, tribunal, arbitration, dialogue, appeal, appellate, review, dialectical, dialectic, NAFTA, Chapter 11, BITs, bilateral investment treaties

JEL Classifications: F02, F10, F21, F42, K33, K41

Accepted Paper Series