- Tim Koopmans, The Internationalisation of the Rule of Law
- Menno T. Kamminga, Humanisation of International Law
- Bas de Gaay Fortman, Beating the State at its Own Game. An Inquiry into the Intricacies of Sovereignty and the Separation of Powers
- Kofi Kumado, Changing Perceptions of Sovereignty and Human Rights in Africa
- Marjolein van den Brink, Gendered Sovereignty? In Search of Gender Bias in the International Law Concept of State Sovereignty
- Nico Schrijver, Unravelling State Sovereignty? The Controversy on the Right of Indigenous Peoples to Permanent Sovereignty over their Natural Wealth and Resources
- Yvonne Donders, The UN Declaration on the Rights of Indigenous Peoples. A Victory for Cultural Autonomy?
- Fons Coomans, Sovereignty Fading away? Prioritising Domestic Health Needs Versus Promoting Free Trade
- Theo van Boven, Five Years After Strengthening the United Nations. Recasting the Office of the High Commissioner for Human Rights
- Tiemo Oostenbrink, The Reform of the Thematic Treaty Mechanisms of the United Nations
- Yuwen Li, The Influence of International Organisations on the Protection of Human Rights in the Chinese Legal System
- Peter Malcontent, The European Union’s Influence on the Character and Effectiveness of Dutch Conduct in the UN Commission on Human Rights
- Pieter Kooijmans, Upholding Human Rights in a Tense and Globalising World
- Willem J.M. van Genugten, Questioning the Freedom from Fear. A Meaningful Concept in a World Full of Abuse of Power and Injustice
- Ineke Boerefijn & Jenny Goldschmidt, Combating Domestic Violence Against Women. A Positive State Duty Beyond Sovereignty
- Leonard Besselink, The European Union and the European Convention on Human Rights. From Sovereign Immunity in Bosphorus to Full Scrutiny Under the Reform Treaty?
- Susanne Burri, The Position of the European Court of Justice with Respect to the Enforcement of Human Rights
- Egbert Myjer, Hardly a Week Goes by Without . . . Observations on the Increasing Number of General Problems of International Law in the Case Law of the European Court of Human Rights
- Leo Zwaak, The Role of the Council of Europe and Its Committee of Ministers. Analysing the Efficiency of Measures Taken Under Article 46(2) of the ECHR
- Titia Loenen, Religious Pluralism and the European Court of Human Rights. Some Reflections on the Pros and Cons of a Wide Margin of Appreciation in the Case of Sahin v. Turkey
- Chrisje Brants, The Free Flow of Information. A Sovereign Concept in and of Itself
- Mitsue Inazumi, Japan and the ICC. A Reflection from the Perspective of the Principle of Complementarity
- Bertrand Ramcharan, Sovereignties of Impunity and Contemporary Challenges of International Protection
- Duco Hellema, Sovereignty and Peacebuilding
- Peter Baehr, Human Rights in Foreign Policy and International Relations. Shifting Emphasis after 9/11? The Cases of the United States and the Netherlands
- Bibi Van Ginkel, Combating International Terrorism: New Powers for the Security Council?
- Olivier Ribbelink, Another Responsibility to Protect? Some Thoughts on a Possible Consequence of GMES, or How Remote Sensing for the Good Cause Could Result in ‘Another’ Responsibility to Protect
- Eric Myjer, Afghanistan, the Erosion of the Right to Self-Defence and the Case of the Missing Immediacy. The Debate on the Ban on the Use of Force and Self-Defence from a Human Rights Perspective
Saturday, March 28, 2009
Friday, March 27, 2009
This book offers the first critical analysis of the international attempts to settle the Kosovo crisis from its inception to Kosovo's declaration of independence. The author participated in most of these settlement attempts, including the Carrington Conference on the former Yugoslavia and the Rambouillet and Ahtisaari negotiations. On this basis, the book provides first hand insights into the failure of high-level international diplomacy in dealing with one of the most explosive crises to hit the European continent since 1945.
The introductory chapters offer a brief account of the background to the crisis, identifying the structural tensions in the modern international system that made it so difficult for the organized international community to address the episode effectively. The book addresses the initial settlement attempts, from the London Peace Conference on Yugoslavia of 1991 to the Geneva negotiations and the impact of the Dayton peace conference on the situation in Kosovo. The second part of the book considers the first attempt of addressing the Kosovo crisis on its own terms, initially through the shuttle diplomacy of US Ambassador Chris Hill over the summer of 1998. The Holbrooke agreement, obtained under the threat of NATO air strikes and providing for a cease-fire is then considered, along with further attempts to obtain a political settlement during this purported breathing space. The book then turns to the extraordinary episode of the Rambouillet Peace Conference and the subsequent use of force against the rump Yugoslavia.
The final part of the book addresses the attempts to prepare for final status during the UN administration of Kosovo. The initial constitutional framework for Kosovo is discussed, along with the abortive 'standards before status' policy. This is followed by a detailed analysis of the Vienna negotiations on final status, and the subsequent tug of war at the United Nations about Security Council endorsement of the result. The book concludes with an analysis of the comprehensive proposal for a settlement proposed by UN envoy Martti Ahtisaari and its eventual recasting into the constitution of Kosovo upon unilateral independence.
This book ties together several strands of analysis, including the tension between state sovereignty and humanitarian concerns, the problem of squaring the doctrine of territorial unity with the principle of self-determination, the reluctance of international actors to involve themselves in internal conflicts, in particular where secessionist conflicts are concerned, and the role of the threat or use of force in the context of coercive international diplomacy.
This article considers the principle of jus cogens norms from a regional perspective. It does so by looking at a regionalized set of legal norms and values, and expunge whether or not they can be reconstituted as regional jus cogens norms. An examination of the Brezhnev Doctrine, juvenile executions in the Americas, and Islamic 'human rights' will be instructive in this manner. The practical utility of norms of regional jus cogens will also be highlighted. Steeped in a legal positivist tradition, it will illustrate that a set of "higher laws" of overriding importance can assist in accomplishing certain social and political tasks that are deemed acceptable within a specific time-period by a group of nation-states. Moreover, such regional jus cogens norms can be replaced by another 'super-norm', or eliminated entirely by the passing of its usefulness. The legal implications for the existence and practice of regional jus cogens norms will be considered, notably its effect on sovereign equality and the role promoting 'differential treatment'. Given a present international community of nation-states characterized by unprecedented heterogeneity, this article will argue that the use of regional jus cogens norms are demanded in limited situations.
Thursday, March 26, 2009
Wiersema: The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements
What do Conferences of the Parties (COPs) to multilateral environmental agreements contribute to international legal obligation? Much of the activity of COPs does not require the consent of every state party to the treaty to come into effect and does not provide for any form of opt-out for dissenting states; nevertheless, COPs frequently pass agreements that alter the application and scope of their treaties. This article discusses the significance of this activity - what I term consensus-based COP activity - for our understanding of the international legal system. Conventional categories for the sources of international law are inadequate to capture the significance of this activity. It does not fit within the traditional sources of hard international law - treaty and custom. Yet relying by default on the usual classification of this activity as soft law is also inadequate, because it obscures the complex relationship between consensus-based COP activity and the underlying treaty obligations of the parties to that treaty.
This article argues that the problem lies in the question we are asking. Instead of asking whether COP activity is really law, we should be asking what the relationship is between COP activity and the original international legal obligations of the parties to the underlying treaty. Reframing the question in this way gives us a new and more accurate picture of the role of consensus-based COP activity in international legal obligation. The picture we get is of a series of resolutions and decisions that, although they do not generally stand apart from the parties' primary treaty obligations, enrich those original legal obligations by deepening and thickening them. In turn, reframing the question also allows us to explore questions about adaptability, sectoral fragmentation, and accountability in the international legal system.
Wednesday, March 25, 2009
- Laurence R. Helfer, Karen J. Alter, & M. Florencia Guerzovich, Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community
- Editorial Comment
- Ryan Goodman, The Detention of Civilians in Armed Conflict
- Notes and Comments
- Michael J. Glennon, The War Powers Resolution, Once Again
- Current Developments
- Erika de Wet, The Governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of EULEX
- Fausto Pocar, The New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters
- Peter Mankowski, Commercial Agents under European Jurisdiction Rules: The Brussels I Regulation Plus the Procedural Consequences of Ingmar
- Koji Takahashi, Damages for Breach of a Choice-of-court Agreement
- Carlos Esplugues Mota, Arbitration Agreements in International Arbitration: The New Spanish Regulation
- Gerhard Dannemann, Accidental Discrimination in the Conflict of Laws: Applying, Considering, and Adjusting Rules from Different Jurisdictions
- Matthias Lehmann, What’s in a Name? Grunkin-Paul and Beyond
- Rome I Regulation - Selected Topics
- Andrea Bonomi, The Rome I Regulation on the Law Applicable to Contractual Obligations – Some General Remarks
- Eva Lein, The New Rome I / Rome II / Brussels I Synergy
- Pedro A. De Miguel Asensio, Applicable Law in the Absence of Choice to Contracts Relating to Intellectual or Industrial Property Rights
- Marie-Elodie Ancel, The Rome I Regulation and Distribution Contracts
- Laura García Gutiérrez, Franchise Contracts and the Rome I Regulation on the Law Applicable to International Contracts
- Francisco J. Garcímartin Alférez, New Issues in the Rome I Regulation: The Special Provisions on Financial Market Contracts
- Helmut Heiss, Insurance Contracts in Rome I: Another Recent Failure of the European Legislature
- Andrea Bonomi, Overriding Mandatory Provisions in the Rome I Regulation on the Law Applicable to Contracts
- Yasuhiro Okuda, A Short Look at Rome I on Contract Conflicts from a Japanese Perspective
- The New Hague Maintenance Convention and Protocol
- William Duncan, The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance Comments on its Objectives and Some of its Special Features
- Andrea Bonomi, The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations
- Philippe Lortie, The Development of Medium and Technology Neutral International Treaties in Support of Post-Convention Information Technology Systems – The Example of the 2007 Hague Convention and Protocol
In a classic international setting, the conclusion of treaties is the pre-eminent tool for maintaining legal relations, and a sure sign of independent actorship. International organizations have long entered the select group of international treaty-makers, and they are now party to a large number of treaties. Organizations are also associated with treaty law and practice in other ways: notably in their role as facilitator for the conclusion of multilateral treaties by states, sometimes in such a prominent position that one could forget that technically they are not themselves a contracting party. This paper first considers some aspects of the organizing theme in the Research Handbook on International Organizations (Elgar, 2009): the distinction between the 'functionalist' and the 'constitutionalist' view of international organizations. It subsequently addresses the conclusion of treaties by international organizations. This includes international organizations' treaty-making practice; the applicable law of treaties; as well as specific questions that may arise in relation to international organizations, as opposed to states - which treaties allow for international organizations to become a party; and to which treaties is a given organization allowed to become a party? The latter question usually entails an appraisal of the 'powers' of an organization, which in turn is linked to an interpretation of the organization's constituent treaty - this is briefly discussed in the same section. The paper then looks into the role of organizations as forum for treaty processes of states. In a general sense, this forum role is part of the general topic of 'law-making' by organizations. Some specific law of treaties aspects, however, are considered here. Notably, this section draws attention to the tendency of contractual and institutional elements merging in the framework of international organizations. The final remarks include the proposition that in the treaty law and practice of organizations we see a modest shift from a 'functionalist' to a 'constitutionalist' perspective on organizations.
This paper is based on a critique of the international community's prevalent approach to genocide, particularly genocide prevention. The emphasis, as a result of the dominant international legal prism, seems to be on macro-international approaches, particularly intervention, that have shown little success since the Holocaust. Although the problem is generally framed as one of lack of political will by states and the continuing hurdle of sovereignty, I suggest that these arise largely as a result of the issue of genocide prevention being seen through international eyes. The internationalist approach to genocide prevention tends to portray "victims" of genocide as systematically weak and thus in need of international intervention. However, the history of how genocides have been if not prevented at least limited suggests that "victims", civil society, and sympathetic insiders all have had a tremendous role to play in saving lives. I then suggest what an international legal approach that took as its goal the need to encourage this sort of domestic and transnational resistance to genocide would look like. I suggest a model of genocide commission that emphasizes the role of habitual compliance to the state, orders and what I term "genocidal law" as central to our understanding of how at least some genocides occur. I then seek to reinterpret the tradition of resistance to genocide as a distinctively normative tradition, one that involves a series of strategies of adaptation, challenge, disobedience, escape and confrontation. This leads me to speculate about ways in which international law might both "help victims help themselves" and "disrupt genocidal law". I conclude by suggesting that the proper role of international law should be recast as one of not only ending genocides through intervention, but preventing them through the encouragement and consolidation of resistance efforts.
This book examines and critiques the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), asking whether it strikes an appropriate balance between conflicting domestic health protection and trade liberalization objectives. It pays particular attention to situations likely to occur but not yet fully examined either in the literature or in WTO law; most importantly, where public opinion demands regulation in the face of scientific uncertainty as to the existence or otherwise of a health risk. Tracey Epps concludes that the SPS Agreement’s science-based framework is capable of dealing with the differing objectives of health and trade, and that it provides countries with more flexibility to respond to scientific uncertainties and public sentiment than many critics contend. This conclusion is strongly influenced by a positive analysis of domestic regulatory decision-making, which finds potential for regulatory capture by domestic protectionist interests and thus emphasizes the importance of ensuring that decisions are made on a sound and principled basis.
Including a historical overview of disputes over trade and health since the 1800s, this book provides a comprehensive analysis of and new perspective on an important area of intersection between international trade law and domestic policy. It will be of interest to a wide-ranging audience including legal and non-legal academics, policy makers and analysts in the field of risk regulation, trade law practitioners in governments, and lawyers and analysts in international institutions.
Tuesday, March 24, 2009
Why should America restrain itself in detaining, interrogating, and targeting terrorists when they show it no similar forbearance? Is it fair to expect one side to fight by more stringent rules than the other, placing itself at disadvantage? Is the disadvantaged side then permitted to use the tactics and strategies of its opponent? If so, then America's most controversial counterterrorism practices are justified as commensurate responses to indiscriminate terror. Yet different ethical standards prove entirely fitting, the author finds, in a conflict between a network of suicidal terrorists seeking mass atrocity at any cost and a constitutional democracy committed to respecting human dignity and the rule of law. The most important reciprocity involves neither uniform application of fair rules nor their enforcement by a simple-minded tit-for-tat. Real reciprocity instead entails contributing to an emergent global contract that encompasses the law of war and from which all peoples may mutually benefit.
- Hans Morten Haugen, Human Rights and TRIPS Exclusion and Exception Provisions
- Daniel Robinson & Jakkrit Kuanpoth, The Traditional Medicines Predicament: A Case Study of Thailand
- Rajnish Kumar Rai, Effect of the TRIPS-Mandated Intellectual Property Rights on Foreign Direct Investment in Developing Countries: A Case Study of the Indian Pharmaceutical Industry
- Daniel J. Gervais, A Canadian Copyright Narrative
- Rita Matulionytė, Cross-Border Collective Management and Principle of Territoriality: Problems and Possible Solutions in the EU
- Charn Wing Wan, The Reform of Copyright Protection in the Networked Environment: A Hong Kong Perspective
- Boris Kondoch & Harvey Langholtz, The Aims and Objectives of the Journal of International Peacekeeping
- Alexander Orakhelashvili, Kosovo and the United Nations System
- Paul F. Diehl & Daniel Druckman, Dimensions of the Conflict Environment: Implications for Peace Operation Success
- Jaïr van der Lijn, If Only There Were a Blueprint! Factors for Success and Failure of UN Peace-Building Operations
- Chiyuki Aoi, Beyond "Activism-Lite"?: Issues in Japanese Participation in Peace Operations
- Liu Tiewa, Marching for a More Open, Confident and Responsible Great Power: Explaining China's Involvement in UN Peacekeeping Operations
- Stéphanie Vig, The Conflictual Promises of the United Nations' Rule of Law Agenda: Challenges for Post-Conflict Societies
- Heike Krieger, A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights
- Aurel Sari, The Al-Jedda Case before the House of Lords
- Otto Spijkers, The Immunity of the United Nations in Relation to the Genocide in Srebrenica in the Eyes of a Dutch District Court
In this important book, three of the leading authors in the field of international economic law discuss the law and economics of the three most frequently used contingent protection instruments: anti-dumping, countervailing measures, and safeguards. When discussing countervailing measures, the authors also discuss legal challenges against prohibited and/or actionable subsidies. The authors’ choice is mandated by the fact that the effects of a subsidy cannot always be confined to the market of the WTO Member wishing to react against it. Assuming there are effects outside its market, an injured WTO Member can challenge the scheme as such before a WTO Panel. Taking the three agreements for granted as a starting point, the book provides comprehensive discussion of both the original contracts, and the case law that has substantially contributed to the understanding of these agreements.
The agreements discussed by the authors provide generally worded disciplines on Members and leave a lot of discretion to the investigating authorities of such Members. A great number of the many questions that arise in the course of a domestic trade remedies investigation are not explicitly addressed in these agreements. In such a situation, the authors highlight the important role that the judge has to play. Much like domestic investigating authorities adopt a line which is either more liberal or more protectionist in the application of trade remedies, the WTO adjudicator on numerous occasions was faced with similar policy problems in applying the general rules to the facts of the case before them. The authors point out that the adjudicating bodies have insisted on the unfair character of dumping in order to substantiate their relatively deferential standard of review. In the anti-dumping / countervailing duties context, case law has generally emphasized the limited character of the obligations on investigating authorities. This implies that domestic investigating authorities, following the evolution of case law, are now facing a deferential standard of review when imposing anti-dumping and countervailing duties.
The book offers a contrasting view of the Agreement on Safeguards, an instrument the use of which, according to the authors, could, in principle, be defensible: WTO Members will have extra incentives to make commitments within a flexible contract. Moreover, safeguards can, in their view, help ease the pressures from domestic lobbies by facilitating (sometimes necessary) adjustment costs. However, the case law is described by the authors as having adopted a rather inflexible stance, the end result of which is that no imposition of safeguards has survived the test of consistency with WTO law. They identify the apparent rationale for the case law as an over-insistence on what they label the highly uninformative fair/unfair trade distinction.
The economic analysis employed by the authors would suggest that – in the light of the unsatisfactory nature of anti-dumping measures, contrasted with the positive incentives inherent in safeguards – ultimately one could envisage merging the three instruments of contingent protection into one new safeguards instrument. Equally, they argue, this economic approach, combined with legal doctrine, offers great insight into the current provisions, allowing them to be interpreted in a more coherent and meaningful manner.
Monday, March 23, 2009
This book presents an up-to-date and scholarly overview of the law of foreign investment, as well as a comprehensive and succinct analysis of the main principles and the standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the most pressing issues, and an insightful assessment of recent trends in the case law on the interpretation of established and evolving principles, from both developed and developing country perspectives.
A major feature of this book is that it deals with the emerging tension between the law of foreign investment and other competing principles of international law. It proposes a number of ways and means of achieving a balance between these principles and the desire and need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to unduly restrict the right of host governments to implement their public policy, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country, on the other.
This is perhaps the first book of its type authored by a truly international lawyer with experience of teaching, research and advisory work in both the developed and developing world over the past 20 years. The wealth of experience that the author brings to the task allows him to develop unique insights into the interplay between the law, economics and politics of foreign investment, making this book essential reading for students, scholars, practitioners and diplomats interested in the contemporary law of foreign investment.
- Fraser Davidson, Some Thoughts on the Scottish Arbitration Code 2007
- David Altaras, Time Limits for Appealing Against or Challenging an Arbitral Award in England and Wales
- Cher Seat Devey, Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration
- Craig Metcalf, Resolution of Patent and Technology Disputes by Arbitration and Mediation: A View from the United States
- David Cornes, Mediation Privilege and the EU Mediation Directive: An Opportunity?
- Lord Phillips of Worth Matravers, Alternative Dispute Resolution: An English Viewpoint
- Anthony Clarke, The Future of Civil Mediation
- Michael Mcilwrath, Ignoring the Elephant in the Room: International Arbitration—Corporate Attitudes and Practices 2008
- Paolo Esposito, The Development of Commercial Law Through Case Law: Is Section 69 of the English Arbitration Act 1996 Stifling Progress?
- Chrisopher Chinn, Arbitration of Antitrust Claims in the United States and Europe
- Gordon Blanke, The Mediation Directive: What Will it Mean for Us?
- Mark Kantor, Legislative Proposals Could Significantly Alter Arbitration in the United States
- Kenneth T. Salmon, The Enforcement of Adjudicators' Awards under the Housing Grants Construction and Regeneration Act 1996: Part 29
- Hew R. Dundas, Confidentiality in English Arbitration: The Final Word? Emmott v Michael Wilson & Partners Ltd
- Hew R. Dundas, Dismissal of a Claim for Claimant's Inordinate and Inexcusable Delay: TAG Wealth Management v West
- France Morrissette, Les processus canadien et communautaire de négociation des traités, la Société civile et le Principe démocratique: Leçons à tirer de la Communauté européenne
- John H. Currie, Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law
- Marie-Louise Tougas, La responsabilité internationale d'État pour le fait d'entreprises militaires privées
- Valerie Oosterveld, The Special Court for Sierra Leone, Child Soldiers, and Forced Marriage: Providing Clarity or Confusion?
- François Larocque & Martin Kreuser, L'incorporation de la coutume internationale en common law canadienne
- Chile Eboe-Osuji, State Immunity, State Atrocities, and Civil Justice in the Modern Era of International Law
- Anna Turinov, "Investment" and "Investor" in Energy Charter Treaty Arbitration: Uncertain Jurisdiction
- Luke Nottage & Kate Miles, "Back to the Future" for Investor-State Arbitrations: Revising Rules in Australia and Japan to Meet Public Interests
- Frédéric Bachand, Overcoming Immunity-Based Objections to the Recognition and Enforcement in Canada of Investor-State Awards
- Jacob Rosoff, Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med-Arb and Arb-Med Proceedings
- Locknie Hsu, Public Policy Considerations in International Arbitration: Costs and Other Issues — A View from Singapore
- Sidharth Sharma, Public Policy Under the Indian Arbitration Act — In Defense of the Indian Supreme Court's Judgment in ONGC v. Saw Pipes
- Jennifer Kirby, Sourcing Unlimited, Inc. v. Asimco Int’l, Inc.: Appellate Jurisdiction and Equitable Estoppel
- Alexander Orakhelashvili, Principles of Treaty Interpretation in the NAFTA Arbitral Award on Canadian Cattlemen
This essay is intended to shed greater light on the IHL regime that constitutes the legal background against which U.S. detention policies have been enacted and debated. Such an endeavor has special importance given the review of these issues by the Obama administration and by Congress, and the Supreme Court’s decision to grant certiorari in Al-Marri v. Pucciarelli. The central question is whether IHL prohibits the preventive detention of civilians who pose a security threat on account of their direct or indirect participation in hostilities. It bears noting, however, that the authority to detain does not depend only on the substantive criteria for detention. As Derek Jinks and I have argued elsewhere, IHL conditions the authority to detain on compliance with procedural guarantees and humane treatment of detainees. For example, a party to a conflict that is unable or unwilling to respect the strictures of common Article 3 of the Geneva Conventions for the Protection of Victims of War with regard to conditions of confinement has no authority to detain. This essay pursues a separate question, however, by focusing on the scope of authority to detain particular groups of individuals. I argue that a careful analysis of the IHL regime should distinguish four classes of individuals (across a spectrum from combatants to “innocent civilians”) and three coercive measures to restrain those actors (targeting, detaining, and prosecuting). Mapping these distinct actors and coercive measures, as well as their interconnections, helps to identify and correct existing category mistakes. Failure to do so—to appreciate and repair these persistent errors—threatens both humanitarian values and security interests in present and future conflicts.
Sunday, March 22, 2009
The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased rule development explains this disparity. This Article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.