Invoking Systemic Ideals or Systemic Rules? Jurisdiction in WTO and Investor-State Dispute Settlement

In: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law, Band 82, Heft 2, S. 401-424

Abstract

How do international economic adjudicators approach the question of systemic integration? Systemic integration could be a powerful tool in the defragmentation of the international legal order. Yet, it is a complex tool, coalescing between a legal rule of interpretation and normative ideal of a coherent international legal order. By undertaking an empirical and doctrinal review of the decisions of the World Trade Organization (WTO) and investor-state dispute settlement mechanisms, the paper illustrates both the underutilisation and inconsistent application of the principle within the reasoning of those adjudicators. The paper analyses how international economic law adjudicators attempt (or perhaps fail) to define the indeterminate legal authority of systemic integration. What is contributing to this methodological pluralism in the application of systemic integration? The paper investigates both the competing 'law-applying' or 'law-making' adjudicative functions and the limitations of tribunal jurisdiction as possible explanations for the competing perceptions of the role of systemic integration in international economic dispute resolution. The underutilisation and inconsistency of systemic integration in the WTO and investor-state dispute settlement mechanisms highlights the need to bridge the gap, both theoretically and doctrinally, in understanding how systemic ideals fit within legal rules.