Between 'Member-Driven' WTO Governance and 'Constitutional Justice': Judicial Dilemmas in GATT/WTO Dispute Settlement

25 Pages Posted: 16 Feb 2018

See all articles by Ernst-Ulrich Petersmann

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW)

Date Written: 2018


Globalization and the recognition of human rights and constitutionalism by all UN member states entail that also international courts increasingly interpret their judicial mandates and multilateral treaties in conformity with 'constitutional principles' as multilevel governance of transnational public goods (PGs) constraining intergovernmental power politics through judicial protection of transnational rule of law for the benefit of citizens. US President Trump, the 'Brexit', and an increasing number of non-democratic rulers (e.g. in China, Russia, and Turkey) challenge multilateral treaty systems, international adjudication and 'cosmopolitan rights' by ‘populist protectionism’ prioritizing ‘bilateral deals’. This contribution uses the US blockage of the WTO Appellate Body system for illustrating the 'republican argument' that transnational PGs cannot be protected without judicial remedies, rule of law and democratic governance. Adversely affected governments, citizens and courts of justice must hold power politics more accountable so as to protect PGs for the benefit of citizens and their constitutional rights. WTO members should use their power of majority voting for authoritative interpretations of WTO law supporting ‘judicial administration of justice’ in multilevel governance of the world trading system. Multilevel judicial control of trade regulation legitimizes ‘member-driven governance’ by protecting rule of law as approved by parliaments for the benefit of citizens, their equal rights and social welfare.

Keywords: Adjudication; Courts of justice; Governance; Judicial functions; Principles of justice

Suggested Citation

Petersmann, Ernst-Ulrich, Between 'Member-Driven' WTO Governance and 'Constitutional Justice': Judicial Dilemmas in GATT/WTO Dispute Settlement (2018). EUI Department of Law Research Paper No. 2018/04, Available at SSRN: or

Ernst-Ulrich Petersmann (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze

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