From Integration Through Law to Global Community Law? Between Arbitration, Adjudication and Judicial Overreach
Forthcoming in the Global Community Yearbook of International Law and Jurisprudence 2020 (2021).
51 Pages Posted: 21 Oct 2020
Date Written: October 21, 2020
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
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