Between 'member-driven governance' and 'judicialization' : constitutional and judicial dilemmas in the world trading system

The power-oriented GATT/WTO traditions of member-driven governance risk undermining the dispute settlement system of the WTO, its judicial administration of justice and rule of law. US trade policies, the “Brexit”, and non-democratic rulers challenge multilateral treaties and judicial systems by populist protectionism prioritizing “bilateral deals”. This contribution uses the example of the illegal US blockage of the WTO Appellate Body system for explaining why the “republican imperative” of protecting public goods (res publica) requires respect for democratic governance, rule of law and judicial remedies (Part 1 of this chapter). WTO law limits power politics by judicial remedies and by administrative majority decisions for filling vacancies in WTO institutions (like the Appellate Body) if consensus is arbitrarily vetoed (Part 2 of this chapter). Such administrative decisions and judicial clarifications of WTO rules preventing illegal de facto amendments of WTO institutions legitimize member-driven governance by protecting rule of law as approved by parliaments when they authorized ratification of the WTO Agreement and delegated limited powers for implementing, clarifying and reforming—rather than destroying—WTO rules for the benefit of citizens, their equal rights and social welfare (Part 3 of this chapter). The hegemonic abuses of trade policy powers indicate the political limits of “judicialization” of international economic law and the need for systemic, “ordo-liberal” reforms of the WTO in order to avoid disintegration of the world trading system

Democratic differences: electoral institutions and compliance with GATT/WTO agreements

A growing body of literature argues that democracies are more likely to comply with international agreements than authoritarian states. However, substantial variation exists in the compliance behaviour of democracies. How can this variation be explained? The same mechanism that links regime type to compliance, namely electoral competition, also explains variation in compliance among democracies. This is because the nature of electoral competition varies across democratic systems. An analysis of democratic GATT/WTO member countries from 1980 to 2003 reveals that governments elected via majoritarian electoral rules and/or single-member districts are more likely to violate GATT/WTO agreements than those elected via proportional electoral rules and/or multi-member districts