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A Procedural Approach to the Legitimacy of International Adjudication: Developing Standards of Participation in WTO Law

  • Michael Ioannidis

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Lawmaking by judicial institutions requires legitimation. As international courts gradually play an ever more significant part in the shaping of international law, they share with any other lawmaker the need for a convincing basis of legitimacy. In the case of international courts, however, this need has to be addressed by taking into account their special function: that is, to review decisions made by other lawmakers (mainly domestic). The question of the legitimacy of judicial institutions is thus crucially connected with the standard they apply in reviewing such decisions.

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1 Participation in the process of international lawmaking can take two forms. First, international adjudicators may exercise discretion in specifying a general rule of international law when applying it to a specific dispute. The part of the final decision that is left to their discretion constitutes lawmaking. Second, pronouncements of international adjudicators do not confine to the settlement of specific disputes, but may also exert normative influence beyond the disputing parties. For the normative effects of judicial decisions beyond the settlement of specific disputes, see Armin von Bogdandy & Ingo Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers, in this issue 986-989; Marc Jacob, Precedents: Lawmaking Through International Adjudication, in this issue 1014-1018; Ingo Venzke, Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy, in this issue 1124.

2 See von Bogdandy & Venzke (note 1), 992. On the exercise of authority by international organizations, see Armin von Bogdandy, Philipp Dann & Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 German Law Journal 1375 (2008).

3 Tribe, Laurence, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale Law Journal 1063, 1064 (1980).

4 Persons, but also collectively organized interests, like those represented by states.

5 See Bogdandy, Armin von, Legitimacy of International Economic Governance: Interpretative Approaches to WTO Law and the Prospects of its Proceduralization, in: International Economic Governance and Non-Economic Concerns, 103, 126 (Stefan Griller ed., 2003).

7 Bogdandy, Armin von, Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship, 5 Max Planck United Nations Yearbook 609, 617 (2001).

8 Defining is here of course the analysis of Kelsen, according to whom “[a]pplication of law is at the same time creation of law,” Hans Kelsen, Pure Theory of Law 234–37 (1960, transl. by Max Knight, 1967). In the words of Lauterpacht, “judicial law-making is a permanent feature of administration of justice in every society,” Hersch Lauterpacht, The Development of International Law by the International Court 155 (1982). To that extent, the question of courts as lawmakers centres around the linguistic truism that there is a creative moment inherent in any form of interpretation.

9 Shapiro, Martin, Judicial Delegation Doctrines: The US, Britain and France, 25 West European Politics 173, 175 (2002).

10 Hart, Herbert L.A., The Concept of Law 125 (1961).

11 Holmes, Oliver W., Collected Legal Papers 239 (1920). Hart also refers to “choice,” Hart (note 10), 124.

12 As they actually defer to the adjudicator the assessment on proportionality, the question of which lies in the heart of the concept of justice, Aristotle, Nicomachean Ethics, in: 19 Aristotle in 23 Volumes, 1131a (transl. by Harris Rackham, 1934).

13 Regarding lawmaking at the level of constitutional adjudication, see from different perspectives Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des Demokratischen Rechtsstaats 293 & 295 (1994); Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the bar of Politics 16–18 & 23 (1986); Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie 189 et seq. (1991); Perry, Michael J., Morality, Politics, and Law 149 (1988).

14 Aristotle, , Politics, in: 21 Aristotle in 23 Volumes, 6.1317b (transl. by Harris Rackham, 1944).

15 To that extent Bickel's remark that “[constitutional] review is a deviant institution in American democracy” is apt, Bickel (note 13), 16–18.

16 Habermas (note 13), 321.

17 Furthermore, such a procedure is considered more effective when it allows for the reason-responsive exchange of normative arguments, Jürgen Habermas, Law and Morality, in: 8 The Tanner Lectures on Human Values, 219 & 243 (Sterling M. McMurrin ed., 1988).

18 Dahl, Robert A., Democracy and its Critics 127 (1989).

19 Id., 122 & 127.

20 The most prominent example in Western-type democracies is the legitimacy chain based on regular elections.

21 This can be for example a decision with external environmental or security repercussions.

22 Dahl (note 18), 188 & 191. Very influential to this “participation-oriented, representation reinforcing approach to judicial review” has been Ely's theory, John H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980). Although arguing for an “antitrust approach” to constitutional adjudication, which “intervenes only when the … political market is systematically malfunctioning” (id., 87), rather than from a deliberative point of view, Ely's theory meets many of the concerns regarding the establishment of constitutional adjudication.

23 From another perspective argue Michael J. Perry, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary 101 (1982); and Dworkin, Ronald, Freedom's Law: The Moral Reading of the American Constitution 344 (1996) (disconnecting “matters of principle” from “ordinary politics” and assigning them to courts “whose decisions are meant to turn on principle, not on the weight of numbers or the balance of political influence”).

24 See Waldron, Jeremy, Judges as moral reasoners, 7 International Journal of Constitutional Law 2 (2009) (investigating the question of whether judges have superior skills when it comes to addressing moral issues).

25 The analogy of courts (especially constitutional or international) enjoying the power to overrule majoritarian decisions on the basis of superior moral qualities with the platonic institution of guardianship is often made, see Learned Hand, The Bill of Rights 73–74 (1958).

26 See the contributions in this issue referred to above (note 1). For the stabilization of normative expectations as a central function of law, see Niklas Luhmann, Das Recht der Gesellschaft 151 (1995) and for the application of this concept in addressing the lawmaking function of international courts, see von Bogdandy & Venzke (note 1), 987 & 998.

27 Zurn, Christopher F., Deliberative Democracy and the Institutions of Judicial Review 249 (2007).

28 See Habermas (note 13), 340.

29 Including all rights necessary for the free, informed and effective participation of the individual, see Dahl (note 18), 178.

30 According to Habermas, “[t]he democratic procedure for the production of law evidently forms the only postmetaphysical source of legitimacy. But what provides this procedure with its legitimizing force? … [D]emocratic procedure makes it possible for issues and contributions, information and reasons to float freely; it secures a discursive character for political will-formation; and it thereby grounds the fallibilist assumption that results issuing from proper procedure are more or less reasonable,” Jürgen Habermas, Between Facts and Norms 448 (1997).

31 Dahl (note 18), 182.

32 An approach with a history going back to the creation of the International Trade Organization (ITO), see Seymour J. Rubin, The Judicial Review Problem in the International Trade Organization, 63 Harvard Law Review 78, 97 (1949). From the literature adopting this perspective analyzing WTO law, path breaking is the work of Richard Stewart, see Richard B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law? 68 Law and Contemporary Problems 63 (2005); Stewart, Richard B. & Michelle Ratton Sanchez Badin, The World Trade Organization and Global Administrative Law, New York University School of Law, Public Law & Legal Theory Research Papers Series No. 09–71, 1 (2009). Regarding participation rights in particular, an important part of the recent literature addresses legitimacy concerns focusing on their function, see, e.g., Yves Bonzon, Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues, 11 Journal of International Economic Law 751 (2008).

33 See Pierce, Richard J., Sidney A. Shapiro & Paul R. Verkuil, Administrative Law and Process 35 et seq. (2009).

34 See Stewart, Richard B., The Reformation of American Administrative Law, 88 Harvard Law Review 1667, 1676 (1975).

35 See Shapiro (note 9), 175 (“… when the legislature as principal chooses to police its delegation of law making authority to its administrative agent through the institution of judicial review, unavoidably it has also chosen to delegate law making authority to courts. And so it must confront the problem of policing them as well.”). For a comparative approach of the problem, see Mauro Cappelletti, The Judicial Process in Comparative Perspective 19– 21 (1989). For only an introduction to the discussion in the U.S., see Pierce, Shapiro & Verkuil (note 33), 364 et seq.

36 In the sense that they restrict the freedom of their addressee as the decision-maker thinks expedient, Thomas Hobbes, Leviathan ch. XVII, para. 13 (Edwin Curley ed., 1994).

37 See the seminal analysis of Stewart (note 34); martin shapiro, who guards the guardians?: judicial control of administration (1998); Seidenfeld, Mark, A Civic Republican Justification for the Bureaucratic State, 105 Harvard Law Review 1511 (1992).

38 See Stewart (note 34), 1723 (explaining the role of hearing rights to the transformation of U.S. administrative law into a model of interest representation); Shapiro (note 37), 128.

39 Stewart (note 34), 1670.

40 Id. See also Shapiro (note 37).

41 See Merrick B. Garland, Deregulation and Judicial Review, 98 Harvard Law Review 505, 529 (1985).

42 An especially important role to this direction played the judges sitting on the bench of the United States Court of Appeals for the District of Columbia (DC Circuit), which reviews more administrative rules and orders that any other federal court, see Michael Asimow, Delegated Legislation: United States and United Kingdom, 3 Oxford Journal of Legal Studies 253, 256 (1983); Scalia, Antonin, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 The Supreme Court Review 345, 348 (1978).

43 Asimow (note 42), 256; Shapiro (note 9), 182-183.

44 See Scalia (note 42), 348 (“The history of the APA's informal rulemaking provisions, at least since the mid-1960s, has been characterized by the imposition of additional procedural requirements mandated neither by statute nor by the Constitution, but crafted by the courts, with greater or lesser reliance upon the substantive statutes involved.”).

45 See Garland (note 41), 525.

46 Stewart (note 34), 1712.

47 For an overview of some of the literature on the deliberative qualities of administrative decision-making, see Seidenfeld (note 37); David Barron, Note, Civic Republican Administrative Theory: Bureaucrats as Deliberative Democrats, 107 Harvard Law Review 1401 (1994).

48 From the rich relevant discussion in the context of U.S. administrative law, see the development of the so-called Chevron doctrine and United States v. Mead Corp, 533 U.S. 218, 230 (2001) (courts should accord deference to the statutory interpretations given by administrative agencies when the relevant statute “provides for a relatively formal administrative procedure tending to foster … fairness and deliberation”).

49 See Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, 435 U.S. 519 (1978).

50 In the context of U.S. administrative law, see Stewart (note 34), 1779; Jerry Mashaw, Due Process in the Administrative State 23 (1985).

51 See Esty, Daniel C., Good Governance at the Supranational Scale, 115 Yale Law Journal 1490, 1494 (2006); Charnovitz, Steve, Transparency and Participation in the World Trade Organization, 56 Rutgers Law Review 927, 942 (2003–04).

52 See Held, David, The Transformation of Political Community: Rethinking Democracy in the Context of Globalization, in: Democracy's Edges, 84, 104 (Ian Shapiro & Casiano Hacker-Cordón eds, 2001); DAHL (note 18), 319 et seq.; Stewart (note 32), 75. For only an example of the discussion at the European level, see Renaud Dehousse, Beyond Representative Democracy: Constitutionalism in a Polycentric Policy, in: European Constitutionalism Beyond the State, 135 (Joseph H.H. Weiler & Marlene Wind eds, 2003).

53 On the role of the WTO adjudicating bodies in creating new normativity in world trade law, see Venzke (note 1).

54 Stewart & Ratton Sanchez Badin (note 32), 1.

55 By efficient legislator I mean here a body that is competent to make decisions of a general and abstract nature responding to the evolving needs of a collectivity.

56 Although it is debatable whether the WTO has a general lawmaking power, the WTO Agreement does confer to the Ministerial Conference the competence to adopt amendments (Art. X:1 WTO Agreement) and authoritative interpretations (Art. IX:2 WTO Agreement) on the basis of majority voting. Both procedures, however, have not evolved to functional instruments for the promulgation of general international rules on trade. Moreover, amendments to the WTO Agreement that alter the rights and obligations of the members either require a decision of the Ministerial Conference taken by consensus or produce results only for the members that have accepted them (Art. X:1 read together with :4 and Art. X:3 and :5 WTO Agreement). Beyond these instruments, waivers, although indeed utilized as general lawmaking instruments, are also adopted on the basis of consensus and have not yet been elevated at the level of a legislative surrogate. On the function and potential of waiver as a means of lawmaking within WTO, see Isabel Feichtner, The Waiver Power of the WTO: Opening the WTO for Political Debate on the Reconciliation of Competing Interests, 20 European Journal of International Law 615 (2009).

57 The WTO does indeed dispose of an administrative infrastructure which carries out significant functions, like consulting member states and offering a forum for information exchange and the dissemination of technical knowledge. On the function of the WTO administrative law bodies, see Andrew Lang & Joanne Scott, The Hidden World of WTO Governance, 20 European Journal of International Law 575 (2009).

58 As it is the case with the delegated legislation of domestic administrative agencies or the secondary rules promulgated by organs of other international organizations. But see also the tendencies towards a more “legislative like” decision-making on the example of the “equivalence decision” of the SPS Committee (Committee on Sanitary and Phytosanitary Measures, Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, WTO Doc. G/SPS/19/Rev. 2, 23 July 2004); Lang & Scott (note 57), 599. Particularly interesting are here the findings in Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, 25 October 2010, paras 7.134–7.136. The Panel, called to interpret Art. 4 SPS Agreement, referred to the above mentioned “equivalence decision” of the SPS Committee, noting that “while this decision (sic) is not binding and does not determine the scope of Art. 4, we do consider that this Decision expands on the Members’ own understanding of how Art. 4 relates to the rest of the SPS Agreement and how it is to be implemented.”

59 As well as regarding the establishment of a panel and the recourse to the Appellate Body, Arts 1, 16.4, 17.4 and 23 DSU. On the exclusive character of the WTO DSM, see Panel Report, US - Section 301 Trade Act, WT/DS152/R, 27 January 2000, para. 7.43.

60 See Cass arguing in a similar vein that “the only power possessed by the central body is the power of treaty interpretation vested in the WTO central adjudicatory system,” Deborah Z. Cass, TheConstitutionalizationof International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade, 12 European Journal of International Law 39, 56 (2001). As Cass further explains, the Appellate Body resorted to this lawmaking potential to redefine the limits of its competence and the boundaries of the WTO regime in general, id., 51 & 57 et seq.

61 See also Steinberg, Richard H., Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constrains, 98 American Journal of International Law 247, 252 (2004).

62 The wording of these provisions makes the application of the cornerstones of the world trade regime, namely the MFN and the National Treatment principles, contingent upon the establishment of the “likeness” of the relevant products, see also Art. II and XVII GATS. The phrase “like product” appears in many different provisions of the covered agreements, for example, in Arts I:1, II:2, III:2, III:4, VI:1, IX:1, XI:2(c), XIII:1, XVI:4 and XIX:1 of the GATT 1994, see Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, 5 April 2001, para. 88. The Appellate Body made furthermore clear that “there can be no one precise and absolute definition of what is ‘like.’ The concept of ‘likeness’ is a relative one that evokes the image of an accordion. The accordion of ‘likeness’ stretches and squeezes indifferent places as different provisions of the WTO Agreement are applied,” Appellate Body Report, Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 1 November 1996, 21.

63 See Arts XX (a), (c), (d) and XXI (b) GATT, 2.2, 5.6 SPS Agreement, 2.2, 2.5 TBT Agreement and XIV, VI:4 GATS.

64 Chapeau of Art. XX GATT.

65 See Desmedt, Axel, Proportionality in WTO Law, 4 Journal of International Economic Law 441 (2001); Kapterian, Gisele, A Critique of the WTO Jurisprudence on “Necessity,” 59 International and Comparative Law Quarterly 89 (2010); Howse, Robert & Türk, Elisabeth, The WTO Impact on Internal Regulations: A Case Study of the Canada-EC Asbestos Dispute, in: The EU and the WTO: Legal and Constitutional Issues, 283 (Gráinne de Búrca & Joanne Scott eds, 2001). Beyond the balancing of environmental, health, public morals protection vis á vis the distortion of the free movement of goods and services, proportionality assessments might inhere in all cases where the adjudicating mechanism is concerned with the relationship between a regulatory aim and the means to its attainment, see Mads Andenas & Stefan Zleptnig, The Rule of Law and Proportionality in WTO Law, in: Redefining Sovereignty in International Economic Law, 180 (Wenhua Shan, Penelope Simons & Dalvinder Singh eds, 2008).

66 See Arts 2.2 TBT Agreement and 5.6 SPS Agreement.

67 The tertium comparationis in the case of the “less restrictive means” test would be the capability to achieve a particular objective (e.g., protection of human health) taking into account the effects on trade. Against this composite denominator are the potential alternatives to be assessed.

68 In the case of “likeness,” see Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R and WT/DS48/R, 16 January 1998, para. 101; and Appellate Body Report, Japan - Alcoholic Beverages (note 62), para. 114.

69 This power is in turn not confined to the generation of individual norms settling a particular dispute, although this would be already sufficient for the affirmation of its nature as an instance of authority. For the reasons described above, and developed by other authors in this issue, the substantive lawmaking potential of the DSM stretches well beyond the particular disputes at issue and plays an important role in stabilizing the normative expectations of parties other than the disputing ones. See Venzke (note 1); Raj Bhala, The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of a Trilogy), 9 Journal of Transnational Law & Policy 1 (1999).

70 Cass (note 60), 74.

71 The “single undertaking” approach, adopted after the Uruguay Round, makes compulsory the adoption as a whole of a body of law which incorporates twenty-nine Agreements and Understandings and extends to almost 25,000 pages. Furthermore, as the progress of the Doha Development Round of negotiations demonstrates, a “correction” of a potentially unsatisfactory judicial interpretation through treaty-change is a Sisyphean task to undertake.

72 Ginsburg, Tom, International Judicial Lawmaking, University of Illinois Law and Economics Working Paper No. 26, 5153 (2005). For the case of the European Union, see Joseph H.H. Weiler, The Constitution of Europe 18 et seq. (1999).

73 Classic remains here the analysis of Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations and States (1970). For the application of this concept in the context of WTO, see Joost Pauwelyn, The Transformation of World Trade, 104 Michigan Law Review 1 (2005).

74 This limited option to withdraw is reinforced by the development of the WTO dispute settlement process in a way that has effectively diminished “selective” exit options. After the Uruguay Round changes, diplomatic safeguards to the enforcement of WTO law are not any more available, see Pauwelyn (note 73), 24.

75 Beyond its ineffectiveness in the case of WTO, the general deficiencies of a diplomacy-based “legislative” structure are well explored. It suffices here to refer to the inherent gaps and discontinuities of the chain connecting individuals to international rules. See von Bogdandy (note 7), 617; Ernst-Ulrich Petersmann, Constitutionalism and International Organizations, 17 Northwestern Journal of International Law & Business 398, 408 (1996–97) (discussing in extent the problems connected with the exercise of discretion at the field of foreign policy); Robert O. Keohane & Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and the World Trade Organization: Problems of Democratic Legitimacy, in: Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium, 264, 276 (Roger B. Porter, Pierre Sauvé, Arvind Subramanian & Americo Beviglia Zampetti eds, 2001).

76 The concept of effectiveness is here used in the sense of Kelsen, Kelsen (note 8), 46.

77 And international in the occasions that this is relevant, see the case of international standards infra section D.I.1.

78 On cases thus where WTO law imposes specific participatory standards to be met by domestic law as a response to the externalities that national regulation can produce. Comparable procedural-deliberative requirements can however also be relevant to WTO decision-making processes themselves as well as to other international bodies producing WTO-relevant law, like the Codex Alimentarius Commission.

79 Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 6 November 1998; Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/RW, 15 June 2001; and Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, 21 November 2001.

80 Arts 6.1, 6.2, and 6.11 Anti-Dumping Agreement. The Appellate Body understands these provisions as guaranteeing “fundamental due process rights” to all “interested parties”, see Appellate Body Report, United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, 17 December 2004, para. 250.

81 Arts 12 and 13 SCM Agreement.

82 Arts 2.9.4 TBT Agreement and 5(d) Annex B SPS Agreement. See also Arts 2.10.3 TBT Agreement and 6(c) Annex B SPS Agreement. “One stop” access to relevant documents and records is possible through the SPS and TBT Information Management Systems (SPS IMS and TBT IMS), see http://spsims.wto.org and http://tbtims.wto.org.

83 See Committee on Sanitary and Phytosanitary Measures, Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7), WTO Doc. G/SPS/7/Rev. 3, 20 June 2008; and Committee on Technical Barriers to Trade, Decisions and Recommendations Adopted by the Committee since 1 January 1995, Note by the Secretariat, WTO Doc. G/TBT/1/Rev. 9, 8 September 2008.

84 See Committee on Sanitary and Phytosanitary Measures, Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7) (note 83), 5.

85 Arts L and N of Annex 3 to the TBT Agreement.

86 Arts 3 and 12.3 Safeguards Agreement.

87 Arts XXII and VII 4(b) GATS.

88 See Art. 2.4 TBT Agreement, Arts 3.1, 3.2 SPS Agreement, Art. 3 of the Annex A thereof, and Art. 2.4 PSI Agreement.

89 See, e.g., Art. 3.2 SPS Agreement (measures that are in conformity with standards promulgated by specific international organizations are presumed to be consistent with WTO law).

90 Committee on Technical Barriers to Trade, Decisions and Recommendations Adopted by the Committee since 1 January 1995, Note by the Secretariat (note 83), 38. The Decision extends to international bodies the standards developed for domestic authorities in Annex 3 to the TBT Agreement.

91 Art. 2.2 TBT Agreement.

92 Stewart & Ratton Sanchez Badin (note 32), 23–25.

93 On the development of a general principle of participation at the international level utilizing insights from administrative law, see Giacinto Della Cananea, Al di là dei Confini Statuali: Principi Generali del Diritto Pubblico Globale 37 et seq. (2009). The Director-General of WTO, Pascal Lamy has also recently referred to procedural fairness as a “fundamental principle” of WTO law, Symposium on the Agreement on Government Procurement, Geneva 11 February 2010, available at: http://www.wto.org/english/news_e/sppl_e/sppl147_e.html.

94 Della Cananea locates the source of the principles pronounced by the Appellate Body in U.S. - Shrimp in the national legal orders from which the Appellate Body “subsumed … some general or ‘global’ principles of administrative law,” Giacinto della Cananea, Beyond the State: The Europeanization and Globalization of Procedural Administrative Law, 9 European Public Law 563, 575 (2003).

95 Section 609 of U.S. Public Law 101–62, 16 United States Code 1537 (21 November 1989) and associate guidelines and judicial rulings. For a full description of the relevant domestic law and practice, see Appellate Body Report, U.S. - Shrimp (note 79), paras 2 et seq.

96 The U.S. measure was prima facie WTO-law inconsistent as contrary to the prohibition of quantitative import restrictions, Art. XI GATT.

97 Appellate Body Report, U.S. - Shrimp (note 79), part C.

98 Stewart & Ratton Sanchez Badin (note 32), 15.

99 Appellate Body Report, U.S. - Shrimp (note 79), para. 181.

100 Id., para. 180.

101 Id.

102 Id., para. 181, emphasis added.

103 Id., para. 177.

104 These guidelines were directed to change the practice of U.S. authorities found to be incompatible with WTO law without amending the text of the relevant import prohibition as such, U.S. Department of State, 64 Federal Register No. 130 (8 July 1999), Public Notice 3086, 3694636952. The 1999 Revised Guidelines are also attached to the Panel Report, U.S. - Shrimp (Article 21.5) (note 79).

105 II.B of the 1999 Revised Guidelines.

106 E.g., where only artisan means of harvesting are used, id., II.A.

107 Because shrimps are harvested in an aquaculture facility, TED devices are used, the retrieval of fishing nets do not involve mechanical devices or shrimp is harvested in any other manner not posing threat to the incidental taking of sea turtles, id. I.B.

108 Id., II.A, para. 26.

109 Id., II.A, para. 27.

110 Id., II.A, para. 28. See also I.E. para. 12.

111 Id., I.E., para. 13 (“[t]he Department … will also take into consideration information on the same subjects that may be available from other sources, including but not limited to academic and scientific organizations, intergovernmental organizations and non-governmental organizations with recognized expertise in the subject matter.”).

112 Id., II.A., para. 29.

113 Id., II.A., para. 30.

114 As set out in the Administrative Procedure Act (APA).

115 Panel Report, U.S. - Shrimp (Article 21.5) (note 79), para. 6.1, see, in particular, paras 5.121-5.137.

116 Id., para. 5.104.

117 Id., para. 5.136.

118 Even if they should not be any more interpreted as recognizing a self-standing duty to negotiate before the enactment of a domestic measure affecting foreign state-represented interests, after the clarifications the Appellate Body offered in U.S. - Shrimp (Article 21.5) (note 79).

119 Andrew Guzman refers to this problem as being “inherent in the system of interdependent nation states,” Andrew T. Guzman, Global Governance and the WTO, UC Berkeley Public Law and Legal Theory Research Papers No. 89, 7475 (2002). To address this question is a postulate of the “very idea of democratic constitutionalism,” see Christian Joerges & Jürgen Neyer, Transforming Strategic Interaction into Deliberative Problem-Solving: European Comitology in the Foodstuffs Sector, 4 Journal of European Public Policy 609, 611 (1997).

120 For the arguments advocating for a model of coordinated interdependence regarding the understanding of the nature and objectives of WTO law, see von Bogdandy (note 7), 647.

121 See Arts 2.4 TBT Agreement, 3(d) Annex A to the SPS Agreement, and 2.4 PSI Agreement.

122 See Bonzon (note 32), 775; Michael A. Livermore, Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius, 81 New York University Law Review 766, 790; Stewart & Ratton Sanchez Badin (note 32), 23–24.

123 As is the case with Arts 3.1 SPS Agreement and 3(a), (b), (c) Annex A to the SPS Agreement.

124 The role judicial standards of review play in this allocation is well known in domestic administrative and constitutional settings, see Pierce, Shapiro & Verkuil (note 33), 55 et seq. Compare the famous footnote 4 in United States v. Carolene Products Company, 304 U.S. 144 (1938) and the case Ferguson v. Skrupa, 372 U.S. 726, 732 (1962) declaring that “whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes or some other is no concern of us,” which signified the rise of administrative law as the proper domain of economic regulation rather than a constitutional “superlegislature” weighting “the wisdom of legislation.”

125 Stewart (note 32), 75.

126 For certain procedural elements of the concept of “fair and equitable treatment,” see Stephan Schill, Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law, in: International Investment Law and Comparative Public Law, 151, 158 & 171 (Stephan Schill ed., 2010).

127 See Metalclad Corp v. United Mexican States, ICSID Case No. ARB(AF)/97/1 (NAFTA), Award of 30 August 2000, paras 92 & 99; Técnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award of 29 May 2003, para. 162.

128 See Menon, Anand & Weatherill, Stephen, Democratic Politics in a Globalising World: Supranationalism and Legitimacy in the European Union, LSE Law, Society and Economy Working Paper No. 13, 9 (2007). Ultimately, this is an understanding orientated to the identification of the “appropriate locus for the articulation of the democratic political good,” Held (note 52), 100; see also Dahl (note 18), 4.

* LL.M. (Cambridge), LL.M. (Heidelberg). The author would like to thank Armin von Bogdandy, Ingo Venzke and Isabel Feichtner for their invaluable comments as well as the members of the Dienstagsrunde at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, for discussion on earlier drafts. This article develops ideas that are part of the author's ongoing Ph.D. project.

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