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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

Johann Robert Basedow

Regulation & Governance, 2022, vol. 16, issue 4, 1362-1381

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.

Date: 2022
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https://doi.org/10.1111/rego.12431

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