The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication

49 Pages Posted: 7 Aug 2017 Last revised: 7 Aug 2018

See all articles by Eyal Benvenisti

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law

Sivan Shlomo Agon

Bar-Ilan University

Date Written: August 3, 2017

Abstract

The ever-intensifying trends of global interdependence have created a complex reality in which decisions of sovereign states, like those of international courts, radiate far beyond their traditional confines, affecting the interests of a range of strangers (third-states, individuals, corporations, and others), without being politically accountable to them. Could and should international courts narrow these accountability gaps by insisting that states take the interests of disregarded strangers into account, and by opening the courts’ own doors to the strangers affected by their judgments? In this article, we analyze the judicial commitment to bridge these accountability gaps towards globally affected others by (1) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies, and (2) by facilitating the consideration and voice of affected strangers in the adjudication process itself. In analyzing these two other-regarding judicial responses, we focus on one pivotal site of global judicial governance, the World Trade Organization dispute settlement system (WTO DSS). Based on close analysis of the rich WTO jurisprudence, the article shows that since its inception in 1995, other-regarding considerations have played a significant role in the WTO DSS operation. This WTO’s adjudicative philosophy of regard for others, the article argues, demonstrates an evolving judicial sensitivity to the challenges of accountability and voice generated by globalization at the national and international levels.

Suggested Citation

Benvenisti, Eyal and Shlomo Agon, Sivan, The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication (August 3, 2017). GloablTrust Working Paper No. 08-2017, University of Cambridge Faculty of Law Research Paper No. 14/2018, Bar Ilan University Faculty of Law Research Paper No. 18-12, Available at SSRN: https://ssrn.com/abstract=3013014 or http://dx.doi.org/10.2139/ssrn.3013014

Eyal Benvenisti (Contact Author)

University of Cambridge - Lauterpacht Centre for International Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Sivan Shlomo Agon

Bar-Ilan University ( email )

Ramat Gan
Ramat Gan, 52900
Israel

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