Commercial Stakeholers in International Economic Dispute Resolution and the Issue of Judicial Independence

TY - CONF

T1 - Commercial Stakeholers in International Economic Dispute Resolution and the Issue of Judicial Independence

AU - Jemielniak, Joanna

PY - 2014

Y1 - 2014

N2 - The paper discusses the problem of influence, exerted by commercial actors, in international trade disputes, and its impact onto the position of adjudicators. It explores the role of commercial stakeholders as a driving force behind States’ actions and examines procedural options available to them. The issue of adjudicatory independence and neutrality is discussed in the context of the involved industries and their interests as the non-party spiritus movens behind the WTO dispute settlement processes. Such related, procedural aspects as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors are further considered. As it is argued in the paper that the WTO litigation is often only one of tracks available to the stakeholders to pursue their interests, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the discussed area are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as in the Softwood Lumber LCIA arbitrations). Consequently, the problem of standards of adjudicatory independence is considered as one of the factors in strategic selection of the forum.

AB - The paper discusses the problem of influence, exerted by commercial actors, in international trade disputes, and its impact onto the position of adjudicators. It explores the role of commercial stakeholders as a driving force behind States’ actions and examines procedural options available to them. The issue of adjudicatory independence and neutrality is discussed in the context of the involved industries and their interests as the non-party spiritus movens behind the WTO dispute settlement processes. Such related, procedural aspects as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors are further considered. As it is argued in the paper that the WTO litigation is often only one of tracks available to the stakeholders to pursue their interests, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the discussed area are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as in the Softwood Lumber LCIA arbitrations). Consequently, the problem of standards of adjudicatory independence is considered as one of the factors in strategic selection of the forum.

M3 - Paper

T2 - The independence of the international judiciary

Y2 - 13 November 2014 through 14 November 2014

ER -