TY - JOUR
T1 - The law of strangers
T2 - The form and substance of other-regarding international adjudication
AU - Agon, Sivan Shlomo
AU - Benvenisti, Eyal
N1 - Publisher Copyright:
© UNIVERSITY OF TORONTO PRESS.
PY - 2018/9/1
Y1 - 2018/9/1
N2 - 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 toward globally affected others by (a) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies and (b) 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 a 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.
AB - 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 toward globally affected others by (a) ratcheting up the substantive and procedural duties that states owe to strangers affected by their national policies and (b) 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 a 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.
KW - Accountability
KW - Democratic deficit
KW - Globalization
KW - International adjudication
KW - International courts
KW - International trade
KW - WTO
UR - http://www.scopus.com/inward/record.url?scp=85054065462&partnerID=8YFLogxK
U2 - 10.3138/utlj.2017-0088
DO - 10.3138/utlj.2017-0088
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AN - SCOPUS:85054065462
SN - 0042-0220
VL - 68
SP - 598
EP - 660
JO - University of Toronto Law Journal
JF - University of Toronto Law Journal
IS - 4
ER -