From Integration Through Law to Global Community Law? Between Arbitration, Adjudication and Judicial Overreach

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-37

Forthcoming in the Global Community Yearbook of International Law and Jurisprudence 2020 (2021).

51 Pages Posted: 21 Oct 2020

See all articles by Ernst-Ulrich Petersmann

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW)

Date Written: October 21, 2020

Abstract

Claims of ‘judicial overreach’ currently disrupt the World Trade Organization (WTO), investor-state arbitration and multilevel judicial governance in the European Union. Section I discusses the postwar evolution from the neo-liberal ‘Washington consensus’ to the ordo-liberal ‘Geneva consensus’ promoting global human rights, multilateral trading systems and transnational rule-of-law based on UN/WTO law. The neoliberal US assault on WTO law and adjudication (discussed in Section II) and China’s totalitarian state-capitalism (Section III) challenge multilateral treaty systems and related adjudication protecting global public goods. The claims of ‘judicial overreach’ in multilateral trade, investment and European adjudication (discussed in Section IV) reveal systemic conflicts among regulatory and judicial approaches. Section V concludes that European Union law requires defending the ‘constitutional functions’ of ordo-liberal integration law through EU leadership for plurilateral WTO reforms; economic, environmental and human rights litigation in Europe confirm the need for participatory governance in multilevel legal and judicial protection of the UN/WTO sustainable development goals.

Keywords: Appellate Body, arbitration, constitutionalism, neo-liberalism, ordo-liberalism, WTO

Suggested Citation

Petersmann, Ernst-Ulrich, From Integration Through Law to Global Community Law? Between Arbitration, Adjudication and Judicial Overreach (October 21, 2020). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-37, Forthcoming in the Global Community Yearbook of International Law and Jurisprudence 2020 (2021)., Available at SSRN: https://ssrn.com/abstract=3716227 or http://dx.doi.org/10.2139/ssrn.3716227

Ernst-Ulrich Petersmann (Contact Author)

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

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

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