‘Global Citizens’ in international commercial arbitration and WTO dispute resolution

TY - CHAP

T1 - ‘Global Citizens’ in international commercial arbitration and WTO dispute resolution

AU - Jemielniak, Joanna

AU - Nielsen, Laura

PY - 2016/1/1

Y1 - 2016/1/1

N2 - Introduction The notion of ‘global citizens’ has two different meanings in the international commercial arbitration (ICA) and World Trade Organization (WTO) contexts. These two systems of dispute resolution appear to embody different (though in each case, conceptually well-established) ideals of citizenship: a civic and participatory ideal versus a liberal and individualistic ideal. In this chapter, we argue that there is an interplay between the two ideals; if one pushes the ‘inclusive’ understanding of the ‘global citizens’ agenda too far at the WTO, governments will respond by moving their dispute settlement to international commercial arbitration, where the notion of ‘global citizens’ appears to have the opposite meaning. We also examine the possible effects of such tendencies; in particular, we aim to unveil the often-overlooked participatory potential of arbitration and to explore the possible opening of this model to broader inclusiveness. Object and scope of analysis The legitimacy of the WTO depends not only on the degree of state participation but also on non-state participation. This dependence is evidenced by the numerous discussions related to the democratic deficit of the organisation and the public interest in disputes. To this end, it is important to note that while a strict understanding of legal formalism or positivism might make it possible to dismiss the entire notion of non-state participation in the WTO simply on the grounds that the WTO is an intergovernmental organisation (IGO) and not a public democracy organisation, the opposite has happened in real life. Analogously, legal scholarship also advances the idea of broader participation in shaping international law. In fact, after Seattle was left resembling a civil war area during the WTO Ministerial Conference in 1999, the massive focus on ‘democratic deficit’ and lack of ‘openness’ probably paved the way for the openness that currently exists in the WTO. In the words of the former director general Mike Moore: So how should we respond to civil society's demand for greater engagement in the overwhelming issues of the day? I believe we need to welcome and open up to the globalisation debate, not try to resist it. Organisations like the UN, the ILO, the WTO, the IMF and the World Bank do important work. And the decisions they take increasingly affect the lives of ordinary men and women.

AB - Introduction The notion of ‘global citizens’ has two different meanings in the international commercial arbitration (ICA) and World Trade Organization (WTO) contexts. These two systems of dispute resolution appear to embody different (though in each case, conceptually well-established) ideals of citizenship: a civic and participatory ideal versus a liberal and individualistic ideal. In this chapter, we argue that there is an interplay between the two ideals; if one pushes the ‘inclusive’ understanding of the ‘global citizens’ agenda too far at the WTO, governments will respond by moving their dispute settlement to international commercial arbitration, where the notion of ‘global citizens’ appears to have the opposite meaning. We also examine the possible effects of such tendencies; in particular, we aim to unveil the often-overlooked participatory potential of arbitration and to explore the possible opening of this model to broader inclusiveness. Object and scope of analysis The legitimacy of the WTO depends not only on the degree of state participation but also on non-state participation. This dependence is evidenced by the numerous discussions related to the democratic deficit of the organisation and the public interest in disputes. To this end, it is important to note that while a strict understanding of legal formalism or positivism might make it possible to dismiss the entire notion of non-state participation in the WTO simply on the grounds that the WTO is an intergovernmental organisation (IGO) and not a public democracy organisation, the opposite has happened in real life. Analogously, legal scholarship also advances the idea of broader participation in shaping international law. In fact, after Seattle was left resembling a civil war area during the WTO Ministerial Conference in 1999, the massive focus on ‘democratic deficit’ and lack of ‘openness’ probably paved the way for the openness that currently exists in the WTO. In the words of the former director general Mike Moore: So how should we respond to civil society's demand for greater engagement in the overwhelming issues of the day? I believe we need to welcome and open up to the globalisation debate, not try to resist it. Organisations like the UN, the ILO, the WTO, the IMF and the World Bank do important work. And the decisions they take increasingly affect the lives of ordinary men and women.

U2 - 10.1017/CBO9781316544860

DO - 10.1017/CBO9781316544860

M3 - Book chapter

SN - 9781107147102

SP - 263

EP - 289

BT - Establishing Judicial Authority in International Economic Law

A2 - Jemielniak, Joanna

A2 - Nielsen, Laura

A2 - Olsen, Henrik Palmer

PB - Cambridge University Press

CY - Cambridge

ER -