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

36 Pages Posted: 11 Mar 2008 Last revised: 2 Nov 2008

J. Patrick Kelly

Widener University Delaware Law School

Date Written: 2002

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.

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

Suggested Citation

Kelly, J. Patrick, Judicial Activism at the World Trade Organization: Developing Principles of Self-Restraint (2002). Northwestern Journal of International Law & Business, Vol. 22, 2002. Available at SSRN: https://ssrn.com/abstract=1103508

J. Patrick Kelly (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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