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  • Print publication year: 2011
  • Online publication date: July 2011

5 - Relational issues before the community courts


Relational issues in economic integration take various forms and arise in different forums. A vehicle for addressing them is the founding treaty of an economic integration process. However, given the complexity and continuing character of economic integration, these issues, and the problems resulting from them, may continue to haunt the process. Community courts are legal guardians of an economic integration process, enforcers of the benefits it brings, agents who decide when a breach has occurred and the remedy for it, and arbiters of the institutional tensions inherent in it. They are often called upon to solve these problems. As Shany has observed, ‘economic integration/trade liberalization courts . . . have been created primarily in order to help sustain a very delicate equilibrium between the states parties and other stakeholders participating in a special legal regime, and between the states and other stakeholders and the regime's institutions’. In addition to dispute settlement, community courts are responsible for norm-advancement and regime maintenance. Implicit in these observations is the idea that the functions of a community court go beyond what one would ordinarily expect of a national court. A community court has both judicial and ‘political’ functions. Compared with national courts, their role resembles more of a constitutional court than other lower courts.