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Why de-judicialize? Explaining state preferences on judicialization in World Trade Organization dispute settlement body and investor-to-state dispute settlement reforms

Basedow, Johann Robert (2022) Why de-judicialize? Explaining state preferences on judicialization in World Trade Organization dispute settlement body and investor-to-state dispute settlement reforms. Regulation and Governance, 16 (4). 1362 - 1381. ISSN 1748-5983

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Identification Number: 10.1111/rego.12431

Abstract

Judicialization scholarship suggests that states must seek the de-judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de-judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de-judicialization and increased judicialization alike. Second, states' preferences for de-judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi-constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor-to-state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de-judicialization while the EU promotes judicialization.

Item Type: Article
Official URL: https://onlinelibrary.wiley.com/journal/17485991
Additional Information: © 2021 The Author
Divisions: European Institute
Subjects: J Political Science > JZ International relations
K Law > KZ Law of Nations
Date Deposited: 19 Aug 2021 11:39
Last Modified: 31 Oct 2022 14:42
URI: http://eprints.lse.ac.uk/id/eprint/111624

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