Democratizing International Dispute Settlement: The Case of Trade and Investment Disputes (Bernasconi) (October 2006

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International dispute settlement in particular lacks transparency, opportunities for public participation, and accountability. International dispute settlement mechanisms vary in their provenance, mandate, operation, resources, independence and effectiveness, but they are an essential component of the international legal system — just as domestic dispute settlement mechanisms are essential to implementing and enforcing national law. They thus are of fundamental importance to solving the critical issues addressed by the international legal system, including human rights, the environment, human health, labor, trade, and investment.

In the trade context, the World Trade Organization (WTO) remains the primary rule-making regime with judicial powers incorporated in the dispute settlement body. The WTO’s rules supersede national, provincial, state and community laws and standards to protect labor rights, the environment and human health, local culture, human rights, consumer rights, and democratic structures. For example, WTO tribunals have been asked to decide upon a wide range of public policy issues, including for instance, the question of whether hormone-treated beef should find its way into European supermarkets or whether Brazil could prohibit the importation of used short-life tires for environmental (disposal) reasons.

Given the important implications on domestic sovereignty, it seems only commonsensical that dispute settlement processes under the trade and investment regimes be transparent and provide for meaningful public participation. Only if processes are transparent and participatory can tribunals and governments be held accountable for their actions and decisions. Unfortunately, however, international trade and investment dispute settlement processes suffer from a tremendous lack of transparency, public participation and accountability.

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