Establishing Judicial Authority in International Economic Law. Introduction
Establishing Judicial Authority in International Economic Law, Joanna Jemielniak, Laura Nielsen and Henrik Palmer Olsen eds. (Cambridge University Press, 2016)
iCourts Working Paper Series No. 79
29 Pages Posted: 12 Nov 2016 Last revised: 17 Dec 2016
Date Written: November 8, 2016
The past two decades have seen a significant increase in the political reach and influence of International Law. A central element in this process has been an intensified juridification of international relations and more specifically and importantly, a steep growth in international judicialisation through a steadily growing population of International Courts (ICs). Nearly 90% of the total historical output of legal decisions made by ICs was issued during this period, and ICs are gaining more autonomy from nation states. This development is best described as a shift from what might be called a pacta sunt servanda regime of synallagmatic relations between sovereign states to a more dynamic and self-sustaining regime of ‘living law,’ in which courts exert an increasing influence on legal development through their interpretation of international legal documents. This development has resulted in a number of universalizing tendencies in legal interpretation and in engagement with a dynamic approach to legal regulation, whereby the most influential ICs participate more actively in developing and adapting the law to majoritarian preferences.
These tendencies can also be traced in the field of international economic law. This book departs from the existing studies on international economic dispute resolution in two ways. First, the focus of this study is neither on ICs in general nor on the WTO-AB alone. Rather, this study’s focus is on how international judicial authority is established and managed in the field of international economic law, which we define here as encompassing international trade law, investor-state arbitration, and international commercial arbitration. Secondly, the focus of the book is not exclusively on the political and social contexts and their shaping effect on international adjudicative institutions but rather on the institutions themselves: their (legal) history, their (legal) culture and their (legal) behaviour. Contributions by leading international economic law scholars from around the world demonstrate how various aspects of legal culture affect judicial authority in international economic law. This investigation is accomplished through three interlinked parts with the following themes: (I) Emergence, (II) Precedent and (III) Legitimacy. These three issues together provide an important supplementary perspective to existing research in the field, in that this approach seeks to show how the institutional history, the instrument of legal precedent, and the perceived legitimacy underpinning the agency of these institutions shape judicial institutions in international economic law.
Keywords: international courts, international economic law, trade law, arbitration, investment law, dispute resolution
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