INTERNATIONAL GOVERNANCE IN THE WTO: Judicial Boundaries, Political Capitulation

Tomer Broude

There is no denying that the WTO’s judicial branch - its dispute settlement system - is perceived to be an exceptionally powerful judiciary. Its strength polarizes views of its critics who believe that it is too powerful and engages in judicial activism and those of its proponents who see it as the cornerstone of an advanced model of international constitutional governance, whose promise transcends the field of international trade.

In International Governance in the WTO: Judicial Boundaries, Political Capitulation, Tomer Broude critically analyzes the arguments on both sides with a novel, multidisciplinary approach. Broude’s central argument is that the WTO is a dialectical system of governance, with the Membership and political organs creating and maintaining exceptional means of formal vertical control over the judiciary (hence, ‘judicial boundaries’), while at the same time failing to fulfil their law-making mandate for a variety of reasons and motivations, deliberately entrusting the judicial branch with the task of norm-creation in a broad range of socially and politically contentious issue areas (hence, ‘political capitulation’).

Arguments in this highly readable, wide-ranging study, are developed using a comparative judicial politics model combined with legal analysis, assessing the relative power of the WTO dispute settlement system, the European Court of Justice, and the International Court of Justice, each in its own political system.  It draws on sources as diverse as Clausewitz, Hegel and Schmitt, from the Eastern Carelia case in the Permanent Court of International Justice, through landmark European jurisprudence, to the latest WTO Panel and Appellate Body Reports. Finally, on the background of the failed Cancún WTO Ministerial Conference and its aftermath, the book critically evaluates the calls for dejudicialization in the WTO as both dangerous and futile, and proposes an alternative agenda for reform, towards an invigoration of the political norm-creating process among the WTO’s Membership.

As such, it will be instructive and stimulating not only for WTO scholars but to anyone interested in global governance – academics and practitioners, international and domestic lawyers, political scientists and economists. It does not treat the WTO dispute settlement system as a self-contained phenomenon but rather locates it, through textured and evocative analysis, in the broader context of modern international adjudication and contemporary global politics. 

ISBN 10:1 874698 84 8

ISBN 13: 978 1 874698 84 5

• Hardback • 352pp • 2005 • £125.00