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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

International Adjudication and Global Justice

Frank J Garcia

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 26 September 2022

Access to justice — Right to fair trial — International investment law — International courts and tribunals, powers — Judicial reasoning — ICSID Additional Facility arbitration — Theory of international law

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

International adjudication plays an essential, if limited, role in the pursuit of global justice. The importance of adjudication’s role in global justice is not surprising given the link between courts and justice. However, the limits to this role may seem paradoxical given its evident importance, and have to do with (1) the nature of distributive justice as opposed to other kinds of justice such as corrective justice (closely aligned with criminal law) and procedural or, as it is sometimes called, legal justice (Miller, 2017); (2) structural aspects of the interstate and transnational environment in which international adjudication takes place (Garcia, 2016); and (3) specific institutional limits and defects, in both substantive and procedural terms, of both international law itself and its key institutions (Young, 2019, 270–83).

Global justice is generally taken to mean, in its broadest sense, the transnational obligations we have to treat each other fairly (Brock, 2017). Humanitarian and use of force issues have traditionally been the main subject of global justice inquiry, but the domain of global justice has expanded in recent years as a function of globalization and the development of other international legal regimes. It can now be said that the domain of global justice includes the distributive and corrective efforts of a number of general and specialized international, regional, and domestic courts and tribunals adjudicating claims involving civil, political, economic, and social rights (KG Young, 2019, Introduction; Oetheimer and Cano Palomares, 2013; Rudolph, 2008); the corrective justice activities of the International Criminal Court (ICC) and other similar tribunals (Schomburg and Nemitz, 2019; Jenks and Fuller, 2017; Schabas, 2017; Kaul, 2010); and the distributive and corrective justice efforts of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and a myriad of other general and specialized tribunals adjudicating the allocation of natural resources and the distribution of environmental harms and burdens (Gabčikovo-Nagymaros Project, Hungary v Slovakia, 1997; del Castillo-Laborde, 2020; Prislan, 2008; Boyle, 2007).

In recent years, economic globalization in particular has grown significantly in prominence within the global justice literature (Brock, 2017). Consequently, this entry examines adjudication’s contribution to global justice in perhaps the fastest-growing area of global justice theorizing today: the distributive justice impact of economic globalization on states and individuals, and the challenges faced by international and transnational adjudicative bodies when confronting these issues. While we can now say the domain of justice is truly global, the relevant legal regimes remain largely international, ie between states, and transnational, ie across states (Garcia, 2016; Garcia, 2013b). This entry thus includes international justice, or justice between states, within the definition of global justice, since in the economic realm the current institutional framework is structured largely along statist lines with important—albeit sometimes second-hand—distributive effects for individuals.

The essential nature of adjudication’s contribution stems of course from the critical role that adjudication plays in any legal system of justice. Adjudication typically refers to the interpretation and binding application of the law by an independent adjudicator in a fair proceeding. In an international context, adjudication can involve a broader array of forums and embrace any adversarial proceeding, whether through arbitration or by way of a judicial body or other equivalent tribunal, through which one or more independent adjudicators, be they judges or arbitrators (International Courts and Tribunals, Judges and Arbitrators), render a legally binding decision under international law (O’Connell and Vander Zee, 2013, 42–61). Such proceedings generally follow procedural rules unique to each forum, guaranteeing each party, one or more of whom will be a state or international organization (‘IO’), a rough equality of procedural rights (Romano and others, 2014, 5–6) (International Courts and Tribunals, Rules and Practice Directions (ECJ, GC, ECtHR, IACtHR, ICSID, ITLOS, WTO Panels and Appellate Body)). We can thus say adjudication, so defined, is essential to the delivery of international procedural justice, or fair outcomes via fair procedures, for states.

However, there are a number of structural and institutional reasons that together mean this role, essential as it is, is nevertheless limited when it comes to global justice, both procedural and substantive. Chief among them is the divergence one finds between the laws or standards that certain international adjudicative bodies are constrained to apply, and substantive standards of justice. This divergence—in any legal system—is compounded in the international legal system, where states face few uncontested limits to the nature and extent of their rule-making through treaty. This means states are therefore free to negotiate and put in force—often coercively—highly unfair and asymmetric treaties to a degree that one seldom sees in domestic legislation in functional democracies (Garcia, 2018). Put another way, this is the difference between international legal or procedural justice and global substantive justice. Second, there is a troubling gap between the limits to standing and third-party intervention by natural or legal persons in international proceedings and the recognized effects of many international adjudications on a number of actors beyond States Parties (Ronen and Naggan, 2014, 808–11; Clapham, 2010). Finally, international adjudication’s contribution is limited by the procedural defects that plague certain international adjudicative bodies and forums, which render them flawed under rule of law and procedural justice standards, as will be discussed below.

To illustrate international adjudication’s complex role in global justice, this entry will draw illustrations principally from the work of international economic law (‘IEL’) tribunals. IEL and its adjudications illustrate the paradoxical nature of global justice in the current institutional environment. Given the nature of its domain, IEL has perhaps the strongest distributive impact on global justice of any international legal regime. However, the role of its tribunals is the most limited when it comes to explicit global justice norms, when compared with human rights tribunals (European Court of Human Rights (ECtHR); Inter-American Court of Human Rights (IACtHR); African Court on Human and Peoples’ Rights (ACtHPR)), for example. Moreover, no element of the IEL regime has a true constitutional court with broad competence to consider all relevant legal instruments on an equal footing, and articulate its decisions with explicit reference to fundamental legal, political, and constitutional principles, as can be seen when compared to a more powerful court such as the Court of Justice of the European Union (‘CJEU’) (European Union, Court of Justice and General Court), whose mandate does include IEL issues within the European Union (‘EU’) treaties but is much broader (Kuijper, 2018). Finally, although there is a growing literature analyzing the relationship between IEL and the distributive issues that are central to global justice (Linarelli and others, 2018; Christenson, 2018; Suttle, 2017; Risse, 2013; Garcia 2013a; James, 2012), the justice contributions of its tribunals are only now beginning to be theorized (Follesdal, 2018).

It may seem troubling to speak of the limits of something so central to the pursuit of justice as adjudication. However, characterizing this contribution as limited does not mean that international adjudication’s contribution to global justice is not important—it is—or that it cannot be deepened through careful, principled work by jurists, treaty negotiators, and legal scholars—it can be.

B.  Global Justice

1.  An Overview of Justice

Justice can be subdivided into its distributive aspects, its corrective aspects, its commutative aspects, and its procedural aspects (Miller, 2017). Corrective justice, while highly relevant to global justice in the broadest sense through the work of bodies like the ICC, is not primarily concerned with distributive justice per se and will not be the focus here. Commutative justice, or the justice owed by private parties to each other, will likewise not be a focus of this entry. Instead, the focus will be on the contributions international adjudicative bodies can make towards global procedural justice through visibly fair procedures, which can also be understood as a valuable contribution to global justice in its own right; and global distributive justice, ie towards just substantive outcomes of a distributive nature.

Procedural justice and legitimacy are two related concepts that often travel together regarding dispute resolution and international adjudication (Legitimacy in International Law; Political Theory of International Adjudication). Here I am not investigating the legitimacy of international courts and tribunals (Howse and ors, 2018). Rather, I am assuming for the purposes of this inquiry that the adjudicative bodies in question are sufficiently legitimate for their outcomes to be, on the whole, honoured. I would observe in passing that contributing to global justice goals may, in turn, strengthen the perceived legitimacy of the adjudicative bodies themselves.

10  Thus, the question addressed in this entry could be further refined to be: What is the contribution of international adjudication towards global procedural and distributive justice?

2.  Global Justice Defined

11  While it is relatively straightforward to define justice as a concept, as above, it is more contentious to define its content, as is the case with domestic justice. This is particularly challenging in the global setting where normative pluralism must be assumed, and incomplete, partial, multiple, or fragmented political relationships, communities, and affinities are the norm, not the exception (Risse, 2013; Sen, 2011; Garcia, 2013a; Garcia and Ciko, 2013, 54–95).

12  For this reason, among others, Steven Ratner develops his thin justice approach to justice in international law, in which justice is understood as peace and fundamental human rights (Ratner, 2015). While these are undeniably elements of any workable theory of international justice, as a free-standing theory of justice in international law this is admittedly thin when it comes to the more challenging distributive problems at the heart of justice, whether international, global, or domestic. Thicker approaches that tackle distribution head-on include cosmopolitan justice (Caney, 2005; Brock, 2009) and an internationalized egalitarian justice (Beitz, 1999; Pogge 2008; Chilton and Davis, 2012). The latter two approaches agree—contrary to Rawls (1971)—that the outcomes and decisions of global institutions comprise a global basic structure that must be justifiable according to some principle of fair distribution. However, they disagree on what that principle might be (Abizadeh, 2007, 318–58; Blake and Smith, 2015).

13  Both egalitarian and cosmopolitan accounts of global justice can be considered exemplars of an external approach to justice in international law (Garcia and Ciko, 2013, 54–95). By this I mean that they both come to the question of law and justice externally, through the application of norms of justice derived independently from political philosophy. One advantage of this approach is that it brings to bear on fundamental fairness issues raised in law the resources of a long and rigorous tradition of philosophical inquiry into the nature of justice. However, one concomitant drawback is that external approaches have often been rejected by legal actors, particularly in an international setting, as not only external but extrinsic to the business of law, raising political questions when the latter is framed narrowly in terms of positive law, or as merely aspirational when the business of law is framed in realpolitik terms. Both are misunderstandings.

14  In contrast, an internal approach to justice in international arrangements looks for principles of justice within the domain itself; Ratner’s thin justice, for example, takes this approach. There are two ways to do this: seek principles of justice in the fabric of rights and expectations for members that any treaty regime sets up (Carmody, 2008, 527–57), or in the underlying social practices that must be respected and upheld if the treaty regime is to succeed in its stated goals (James, 2012; Garcia, 2018).

15  Both kinds of internal approach have an important contribution to make towards our understanding of justice, and both have limitations. The social practices approach has the virtue of being rooted in agreed social practices rather than an attempted normative synthesis among competing conceptions of the Right and the Good; but the disagreements may lie in the characterizations offered of such practices and in accounts of their normative implications.

16  The treaty expectations approach can short-cut difficult normative disagreements and debates in favour of agreed normative principles found in the treaties themselves, which can be invoked by adjudicators according to Vienna Convention on the Law of Treaties (1969) (‘VCLT’) interpretive canons. This will be discussed in section C below. However, in other cases this approach risks becoming tautological, as will be seen below in B.3.(b), when it is the very justice of the international treaty regime itself that is the subject of criticism, and not simply the regime’s fidelity to its own law. Here, contemporary international investment treaties come to mind.

3.  Distributive Justice and the Principal International Economic Law International Organizations and Treaty Regimes

17  The principal IEL international organizations and treaty regimes undoubtedly play a key role in global justice, whatever one’s conception of it (Follesdal, 2018). That is, these IOs and treaty regimes play a key role in allocating social primary goods such as trade privileges and market access via the World Trade Organization (WTO) (Risse and Wollner, 2019, 148–49; Garcia, 2007, 472–78); investment capital via the Bilateral Investment Treaty (‘BIT’) regime (Investments, Bilateral Treaties) (Garcia and others, 2015, 472–78; Sauvant and Sachs, 2009, xlvi-lii); development capital via the World Bank (Garcia, 2007, 471–75); and crisis capital via the International Monetary Fund (IMF) (Garcia, 2007, 472–78). They do this in several ways: through the allocative decisions embodied in the rules they monitor, implement and enforce; through their own institutional and policy decisions; through any rules, principles or interpretive notes they are empowered to issue; and in the interpretation of these treaties, rules, and decisions through the resolution of disputes, if equipped for the latter.

18  IEL institutions also make indirect allocations by the externalities they generate, tolerate, or sanction (Follesdal, 2018, 486). Cases involving environmental impacts of trade or investment activities, for example, can have a role in allocating both the burdens of environmental regulation and the burdens of environmental degradation (Trujillo, 2018, 2735; Gonzales, 2011, 723). These institutions can also be understood to generate externalities themselves through institutional structures of negotiation, rule-making, and adjudication that reflect or intensify inequalities in bargaining power of the parties making or subject to their allocations (Garcia, 2018).

19  It is the latter function, dispute resolution, that is our primary concern here as our focus is on the contribution of international courts and tribunals to global justice. Given that the majority of IEL IOs do not have compulsory dispute resolution mechanisms per se, our focus then narrows to two principal IEL systems: the WTO Dispute Settlement Mechanism (‘WTO DSM’ or ‘DSM’) (World Trade Organization, Dispute Settlement), and the investor-state dispute settlement (‘ISDS’) regime embedded in the vast majority of BITs. Interestingly, both have in recent years been the subject of intense scrutiny and structural, even existential, challenges, albeit for very different reasons (see sec C.1.(d) below).

(a)  World Trade Organization Disputes and Global Justice

20  It is undeniable that the WTO DSM is engaged in corrective justice, understood as resolving disputes and enforcing legal rights. However, the notion of corrective justice presupposes and relies upon some prior notion of what proper gain and a proper share consist of. In other words, corrective justice presupposes distributive justice. Here we may run into a standard objection, namely that the WTO is in the business of distributive justice—that is a political matter for Member States. Justice, in other words, is in this view a property of the treaties as set by the Member States, together with their domestic trade and economic laws and policies. This is worth considering carefully.

21  Essentially, any social institution that allocates anything – that makes decisions about wealth, opportunities, privileges, obligations, burdens, rights, duties—is in the business of distributive justice. By that I mean, that such allocations are essentially acts of justice—they are what justice is made of, or at least distributive justice: the allocation of social goods by institutions according to publicly available and justified criteria. Domestic tax law is a good example; we would never think of tax law—and tax courts—as involved in anything other than a distributive process, and therefore intimately connected with justice.

22  In what ways is the WTO an allocative social institution? First, the WTO manages a set of treaties whose rules are themselves the product of allocative decisions and compromises among the Members. The rules WTO panels operate within, interpret, and administer are themselves tools of distributive justice which reflect distributive decisions of Member States. Here some might object that this is precisely the point—there is a division of labour: Member States make the distributive decisions and embody them in the rules, and then the WTO makes the corrective decisions through the DSM. However, by locating important distributive justice decisions in the Member States and the Rounds, this does not mean that all distributive justice issues are settled by the treaties themselves or by the Member States, that justice happens prior to the work of the DSB and the panel system.

23  In other words, and this is the second allocative aspect of the WTO’s work, distributive justice is not just a political question behind the texts or before the texts. Distributive justice is an operational question involved in every decision or dispute involving interpreting the texts—in other words, every dispute. Resolving disputes requires interpreting texts, and texts are open-textured and under-determined, with interpretive challenges (Smith, 2013, 1063–86) (Interpretation in International Law; Treaties, Object and Purpose; Authoritative Interpretation; Contextual Interpretation; Teleological Interpretation; Textual Interpretation; Evolutionary Interpretation). In their adjudicative work, WTO panels are being called upon to interpret and apply the WTO treaty rules and therefore supplement, shade, interpret, and nuance the distributive rules themselves. The VCLT does indeed guide and inform this exercise, as it should. Treaty interpretation is not an open-ended political process, nor should it be—the rule of law requires as much. However, there is still much room—and much need—within the process for interpretation according to justice, as Koskenniemi reminds us, and not simple power (see sec D.1. below).

(b)  Investment Disputes and Global Justice

24  In a similar way, we can understand investment law as an allocative social institution. It is a social institution in that, as discussed above, it is a rule-based system grounded in the exercise of public authority (Miller, 2019). It is an allocative institution, in that as a social institution, investment law allocates social resources. It does so in at least three ways. First, investment treaties allocate rights, privileges, and burdens between investors and host states. Such rights and privileges are a valuable and socially produced resource. In Rawlsian terms, they are a social primary good—valuable in their own right and for a range of uses (Garcia, 2003; Trejo-Mathys, 2013, 459).

25  Second, investment treaties themselves impact—directly and indirectly—the domestic rights, privileges, and burdens of a range of stakeholders. They affect the regulatory, economic, and social balance among government, domestic capital, foreign capital, producers, consumers and citizens needing economic rights, social welfare, environmental protection, and other public goods (Garcia, 2009, 504–10; Tan, 2005, 48).

26  Finally, by collectively setting the terms under which investment capital is regulated, investment law as a whole can influence the allocation of investment capital itself, and capital is a socially produced resource (Garcia, 2003, 488). BITs, and investment treaties generally, appear to play at least some role in investors’ decision-making regarding which states get capital, how much, and on what terms, but the precise extent is difficult to determine (UNCTAD Report, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries, 2009).

27  Insofar as international investment law allocates basic social resources in these and doubtless other ways, it is therefore a matter of justice, since justice applies wherever social institutions make decisions with distributive effects. As with the WTO, such allocations take place at a structural level through the provisions which are—and are not—included in a BIT. But as is also the case with the WTO, that is not the end of the allocation—each dispute under an investment agreement is both the application of a set of treaty provisions, and their interpretation. The distributive justice implications of BIT provisions and the overall structure of a BIT are, therefore, both latent in the text itself and interpreted, nuanced, and operationalized through the textual work done in investment dispute resolution.

28  The dominant system for investment dispute resolution today is undoubtedly the ISDS mechanism which is part of the vast majority of BITs and investment chapters in force (Bonnitcha and others 2017; International Investment Arbitration). This system was invented in order for the investor to effectively address disputes and violations without having to rely either on the home or host state’s domestic judiciary, or an exclusively state-to-state arbitration, through a new dispute resolution process involving arbitration directly between the investor and the host state. By consenting to these agreements, host states waive the requirement for investors to exhaust domestic remedies, thus making the settlement of disputes more efficient, but also taking key social and regulatory issues out of the jurisdiction of their own courts, where a broader array of factors could be considered, but where investors allege that they can face anti-investor bias as well. As will be discussed further below, the ISDS system has been the focal point for recent and vocal debate over the fairness of the investment regime as a whole, and thus is key for our investigation.

4.  Conclusion

29  Global justice is far from an agreed concept, important as it is, in spite of much consensus regarding outcomes, practices, and regimes that are manifestly unjust (Sen, 2011; Linarell and others, 2018). The global justice environment within which international adjudicative bodies operate includes some version of thin justice, understood as peace and basic rights; competing notions of cosmopolitan and egalitarian distributive justice; internal accounts that frame justice in terms of treaty expectations or social practices; and an institutional policy consensus around a cluster of largely economic social justice goals and methods (United Nations General Assembly Res 70/1 (2015); Aisbett and others, 2018).

30  International adjudicators need not rationalize or resolve these dilemmas and competing accounts in order to contribute through their decisions to more globally just outcomes. They can often render substantively and procedurally fair decisions simply by working with the law of the case and the VCLT principles. However, there are going to be cases with difficult interpretive issues and important distributive implications, where traditional legal resources may fall short of adequately addressing the needs of the parties, the full complexity of the justice issues presented, and the systemic needs and values of global society. In such cases, adjudicators may find it helpful to use some reasonable conception of just allocations, informed by the global justice objectives of the IO and/or treaty framework in question, and still in line with the VCLT’s canons and teleological imperatives. Such an approach may render decisions in such cases more satisfying to the parties and yielding a greater contribution toward global justice.

C.  What is the Role of International Adjudication in Advancing Global Justice?

31  The core contributions of international adjudication to global justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. However, as will be seen below, fully realizing the potential for justice inherent in this role is limited by certain institutional and structural features unique to international adjudication, which in the case of the BIT/ISDS regime have even led to charges that this regime retards global justice rather than advance it (Linarelli and others, 2018; Sornarajah 2012; Garcia and others 2015). This makes it all the more important that judges and arbitrators consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate.

1.  Procedural Justice

32  The international adjudication of disputes according to fair procedures, or procedural justice, is a key contribution to the justice of global legal outcomes. Procedural justice has been the subject of extensive study in domestic settings within the disciplines of political philosophy (Rawls, 1971), jurisprudence (Solum, 2004, 181–321; Meyerson and Mackenzie, 2018), and, more recently, within the literature on the social psychology of justice, and it is the latter that we focus on here.

33  Pioneering work by Tom Tyler and others since the late 1980’s has demonstrated that the social psychology of procedural justice is a key element in the design and operation of adjudicative systems (Tyler and Lind, 1988, 103–36). While this literature was developed in the context of domestic courts, its principal findings map well transnationally (as will be discussed below) and offer valuable insights into the procedural aspects of justice in a global adjudicative setting (Fontanelli and Busco, 2016, 1–23).

34  The key findings of the procedural justice literature concern the attributes of legal procedures necessary so that participants find the outcomes, even and especially negative outcomes, as acceptable owing to their coming from a recognizably fair procedure. Over the past 35 years Tyler and his colleagues have evaluated a number of elements, and different legal contexts trigger different patterns among these elements (Tyler, 1988, 131–32). The discussion that follows focuses on four elements deemed essential to the design of an international court: participation, transparency, independence, and the possibility of appeal. Applying these procedural virtues to international adjudication, we can see that there is much work to be done.

(a)  Participation

35  First, we must ask of any adjudicative process whether there is a mechanism by which all affected parties may be heard before a decision is made, and for determining in each forum who those parties are. Procedural justice research has demonstrated that when assessing the procedural fairness of a dispute process, the opportunity to meaningfully participate is the single most important element in evaluations of its justice (Tyler, 1988, 132). Participation can also enhance the democratic legitimacy of a procedure and its outcome insofar as all affected stakeholders are allowed a voice in the process (Fontanelli and Busco, 2016, 6). This is an important consideration in the creation of any new international institution such as an investment court.

36  Given the nature of international adjudication and the interests it touches in a globalizing context such as today, the domain of possible participants must consist not only of states and international organizations, but also individuals such as investors, affected communities, and in many cases civil society as well, which can serve as a proxy for broad social input. International society has moved beyond the time in which we could consider that the mere participation by the state was sufficient to assure that all such parties would be heard (Young, 2019, 381–83; International Community) and the procedural justice literature cautions us against such formalism if we are at all interested in international adjudicative decisions that contribute to long-term social stability and the perception of justice.

37  Both the WTO and the ISDS regimes have taken steps in the direction of broader participation. In fact, the ISDS regime allows, at least in principle, more extensive participation rights through amicus briefs than the WTO at present, though still only to a limited degree, unreliably and at the discretion of the tribunal (Schreuer, 2014, 313; Butler, 2019, 143–78) (International Courts and Tribunals, Amicus Curiae; Amicus Curiae: Investment Arbitration; Amicus Curiae: Dispute Settlement System of the World Trade Organization (WTO)). In the WTO DSM non-party briefs are only allowed in practice if they are made part of a party submission, which gives states the final word (Malacrida and Marceau, 2018, 30–31).

38  In IEL adjudication much more needs to be done in order to meet this criterion of procedural justice. This is particularly so in the domain of investment disputes, which touch the interests of a number of parties beyond investors and states qua states, reflecting the wide range of relationships that typically arise in the context of international investment. For this reason, among others, the United Nations Commission on International Trade Law (‘UNCITRAL’) is currently engaged in a wide-ranging reform process, embracing both its arbitration rules and broader concerns such as participation rights and other fundamental issues in investment dispute resolution reform (UNCITRAL Report of Working Group III on the Work of Its 37th Session, 2019, 6–8). Moreover, ICSID is also currently considering measures to increase participation in its proceedings (ICSID, 2020, 336–38). In particular, reforms are urgently needed where the justice issues are most acute: the informal barriers to effective participation by less-resourced parties (Chilton and Davis, 2012, 277), as well as by other non-party affected stakeholders (Laryea, 2018, 2845; Kelsey and others, 2019). In both cases, we risk those most affected being effectively shut out of full participation, a manifest failure of justice.

(b)  Transparency

39  Transparency, or the openness of the decision process and the understandability of a tribunal’s actions, is important in itself when evaluating the quality of a decision from a procedural justice standpoint, and also a necessary element so that other key procedural justice criteria can be met (Tyler, 2003, 298–99). For example, transparency is linked to participation: if claimants cannot see how in fact decisions are made, their participation is rendered meaningless from a procedural justice perspective (Tyler and Lind, 1988, 102). Transparency is also necessary for the evaluation of a tribunal’s independence and impartiality: claimants must have evidence the tribunal has in fact listened to and considered the parties’ views (Hollander-Blumoff and Tyler, 2011, 6).

40  The role of transparency in the procedural aspects of international adjudication is well-theorized, even if highly debated on the institutional design level (Delimatsis, 2014, 701–3). International adjudicative bodies can be located across a broad spectrum in terms of transparency, with trade tribunals perhaps the most transparent and ISDS tribunals the least transparent, though neither regime sets a gold standard (Public and Media Access to Courtrooms: International Courts and Tribunals; Publication of Judgments, Decisions, and Awards).

41  In the WTO, steps have been taken to increase transparency throughout the timeline of WTO disputes. While proceedings and deliberations are generally private, in certain cases limited public attendance at hearings will be allowed, particularly when the parties jointly request it (Malacrida and Marceau, 2018, 32–33) (Public Hearings: Dispute Settlement System of the World Trade Organization (WTO)). Moreover, all cases are subject to strict publication requirements for final documents and certain key interim documents and decisions (Malacrida and Marceau, 2018, 32–33).

42  In contrast, transparency in the ISDS context is still very much a work in progress (Schreuer, 2014, 313). In 2014, UNICTRAL promulgated Rules on Transparency in Treaty-based Investor-State Arbitration, and the related Mauritius Convention on Transparency in Treaty-based Investor-State Arbitration which applies to BITs concluded prior to 2014. Moreover, ICSID is currently considering transparency-enhancing reforms to its arbitration rules (ICSID, 2020, 333–34). Nevertheless, and despite compelling public policy reasons for greater transparency, in the majority of cases individual tribunals still retain great discretion over such core transparency principles as the volume and timing for disclosure of documents, openness of the hearings, third party participation, and amicus curiae submissions (Fry and Repousis, 2016, 795). More often than not, the result is secrecy (Lam and Ünüvar, 2019, 781–84). It is therefore quite possible that arbitral awards of the most sensitive nature for public policy—and global justice for that matter—will not be publicly available, in contrast to the WTO.

(c)  Independence

43  The importance of the independence of adjudicators and their freedom from conflicts of interest is well-understood in the domestic context. In procedural justice terms, the independence of adjudicators includes such elements as their impartiality and freedom from bias, their honesty, and their adherence to ethical standards (Tyler, 1988, 111–13 and 128).

44  In the IEL context, the independence of adjudicators is still an evolving virtue (Howse and others, 2018, 504; A Seibert-Fohr, 2014; Independence: International Adjudication). We see in IEL a marked division between more traditional judicialized tribunals, such as the WTO, which are governed by established canons of legal ethics and conflicts rules (WTO, Dispute Settlement: Rules of Conduct (1996); Malacrida and Marceau, 2018, 24–25; Rules of Conduct for the Dispute Settlement Understanding: World Trade Organization (WTO)), and the looser and more controversial framework within which investment arbitration operates (Anderson, 2018, 1144; Ethical Standards for International Arbitrators).

45  The independence of the WTO Panel and Appellate Body organs has been a key element in the perceived legitimacy of the WTO DSM (Howse, 2016, 9; Pauwelyn, 2016). In addition to screening potential panelists for conflicts of interest (Election of Appellate Body Members: World Trade Organization (WTO)) and subjecting all actors to rules of conduct, the WTO observes strict nationality rules excluding nationals from serving in disputes of their states, while also allowing developing country parties to request that a panelist be from a developing country, thus adroitly balancing independence and voice (Malacrida and Marceau, 2018, 30–31). Commentators have linked this independence and enhanced legitimacy to the success of many WTO rulings in carefully working a balance between trade liberalization and other compelling public policy concerns (Malacrida and Marceau, 2018, 32–33).

46  In contrast, the close links between investment arbitrators and the investment community have been the tip of a larger iceberg of concerns over the independence and impartiality of ISDS adjudication (Van Harten and Křístková, 2018; Transnational Arbitral Community). This has intensified in the last ten to 15 years, as ISDS decisions have adversely impacted major developing countries, often regarding compelling public policy priorities such as public health and environmental safety, leading many to call for a completely new regime such as an investment court, for independence, fairness, and other reasons (Van Harten and Křístková, 2018; Garcia and others, 2015, 861–92; Investment Court Systems; International Investment Court).

(d)  The Possibility of Appeal

47  Finally, on the question of appellate review, the domestic literature assumes the importance of appellate review to procedural justice and the rule of law (Blackstone, 1979; Solum, 2004). Procedural justice research confirms that claimants have a range of related concerns over the quality and correctness of a legal decision that focus in part on whether they have the opportunity to appeal the decision or at least a mechanism for the correction of error (Tyler, 1988, 113, 121, and 126–28). Nevertheless, there is a marked division in institutional design and a high degree of controversy when it comes to international courts (International Courts and Tribunals, Appeals), with the ISDS regime under great scrutiny and the WTO Appellate Body (Appellate Body: Dispute Settlement System of the World Trade Organization (WTO)) (‘Appellate Body’) under serious, if not existential, challenge (Howse, 2016, 1119–26)).

48  Scholars from a wide range of views on ISDS agree that the investment arbitration system’s legitimacy crisis is fueled by the growing number of inconsistent tribunal decisions (Dolzer, 2014, 15; Echandi and Newson, 2014, 848; Franck, 2005, 1610; Schneiderman, 2010, 383). The ISDS setting is the least developed in terms of appellate rights, with only a limited annulment right in the International Centre for Settlement of Investment Disputes (ICSID) proceedings (Schreuer, 2014, 311–12; Annulment: International Centre for Settlement of Investment Disputes (ICSID)). The General Agreement on Tariffs and Trade system (‘GATT’) faced similar challenges before the creation of the Appellate Body (General Agreement on Tariffs and Trade (1947 and 1994)), particularly regarding decisions affecting non-trade social issues, foreshadowing how contemporary investment arbitration decisions face such scrutiny today (Garcia and others, 2015, 888–91). There are, however, numerous current procedural and institutional initiatives in this regard, led by the EU (Reinisch, 2016, 761; Zárate, 2018, 2765).

49  The WTO has been the global leader in IEL-based appellate rights outside the EU context (Howse, 2016, 9; Petersmann, 1998, 25). However, this gold standard for appellate rights in IEL disputes suffered a blow when in December 2019 the work of the Appellate Body was suspended—one hopes, temporarily—due to a political stalemate over the role of the Appellate Body, resulting in the United States (‘US’) blocking appointment of replacement panelists (Charnovitz, 2019; Pauwelyn, 2019, 297–32). Unfortunately, at present we must conclude that the international legal system is, from the perspective of strong global courts and their contribution to global justice, in a moment of retrograde motion.

2.  Substantive Justice

50  It is uncontroversial to state that the primary contribution international adjudication can make towards global justice is the fair enforcing of substantive and procedural rights under the relevant treaties. Although essential, however, this contribution is more in the line of an entry-level requirement, the beginning and not the end of the inquiry. Enforcing substantive rights runs into limits when considered as a complete account of adjudication’s contribution to global justice.

51  At the end of the day, whatever the merits of its procedural rules, a tribunal’s contribution to global justice is limited to some extent by the substantive fairness of the positive law the court is applying. Enforcing a party’s substantive rights under a treaty is only a contribution to global justice insofar as the treaty’s substantive provisions are themselves just. The most procedurally fair outcome one can imagine, if it implements a substantively unfair law, will not constitute a contribution towards justice despite the diligence of the tribunal and the undeniable merit of procedurally fair outcomes.

52  This limit is particularly salient in international adjudication, given the nature of treaty-making and the realities of wide disparities in state power and the coercive practices such disparities invite (Garcia, 2018). There may well be situations in which the substantive law is so highly asymmetrical, as is often said about the current BIT/ISDS regime (Roberts, 2013; Linarelli and others, 2018; Garcia and others, 2015, 861–92), and the interpretive practices so incoherent, that the treaty regime itself raises concerns over its substantive justice and the fairness of any outcomes based on its norms and given its procedures (Garcia and others, 2015, 861–92; Sornarajah, 2012). In such cases, there is the risk that even an interpretively skilled adjudicative body cannot render a substantively just outcome, other than the narrow legal formalism of a decision according to the rules, as could be said to be the dilemma faced by several ICSID annulment committees regarding cases out of the Argentine crisis (Enron and Ponderosa v Argentina, 2010; Ten Cate, 2012, 1173–81; Burke-White, 2008, 199–234). Even within a relatively more balanced treaty framework such as the WTO, powerful states and interests can capture the interpretive space inherent in a set of rules to enact outcomes that are more unjust than the rules themselves, as has been argued is the case with Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (‘TRIPS’) (Howse and Teitel, 2010, 447).

53  In such situations, we can say that the adjudicators’ decision may respect narrower claims of procedural or legal justice, but not the broader and critically important claims of global justice. Some might suggest the resulting gap is simply a lamentable feature of contemporary international relations in a world of fragmented treaties (Fragmentation of International Law; Self-Contained Regime) and highly asymmetric treaty negotiations, and consider this the end of the inquiry. However, to confine the adjudicator’s contribution to justice in this way is to ignore what we know of the limits of positive law and the nature of interpretation, and the reasons for which equity jurisprudence first developed alongside the common law as a corrective for any systemic divergence between law and justice (Sohn, 1988, 277–91; Theories of Negotiation and International Adjudication). There are other strategies and options available to international jurists that avoid the pitfalls of pure legal positivism, and that will both respect the treaty parties’ legitimate expectations and make a significant contribution towards just outcomes within the broad framework of treaty rules.

D.  Interpretive Strategies Towards More Just Global Legal Outcomes

54  Perhaps the most important judicial contribution that international adjudication can make towards substantive global justice involves the interpretation of treaty rules and standards according to widely-accepted principles of justice in the adjudication of specific cases (Follesdal, 2018, 481). This is particularly so in cases where there is concern that the positive law in question, or certain interpretations of it, may be at odds with fundamental and widely-acknowledged substantive justice norms.

1.  A Theory of Interpretive Justice in International Adjudication

55  In international adjudication, as indeed in all adjudication, the relevant rules or standards—whether or not substantively just—will be open-textured and subject to many possible interpretations. In the international context, Martti Koskenniemi reminds us that:

[R]ules are not automatically applicable. They need interpretation and interpretation seems subjective. This is not merely a ‘practical’ difficulty of interpretation. … [T]here is no other basis to make the [interpretive] choice than either by referring to a theory of justice, or to the identities of the states involved. One interpretation is better either because it is more just, or because it is produced by this, and not that, state. … [T]he latter violates sovereign equality (Koskenniemi, 2006, 282).

56  International adjudicators mindful of their role can nudge these rules and standards towards more just interpretations, and therefore more just outcomes, by articulating and applying principles of fairness as interpretive principles (Smith, 2013, 1063–86). These principles of justice exist independently of treaty law and in tandem with it, but their place within accepted canons of international legal interpretation can be articulated a number of ways.

57  Although developed in the context of domestic law and domestic courts (Dworkin, 1986), Ronald Dworkin’s theory of Law as Integrity offers a helpful account of the opportunity—and limits—international courts face when confronted with hard cases in which substantive law is silent or inadequate (Jackson, 1993, 157–92). Law as Integrity posits that in seeking to resolve hard cases, adjudicative bodies aim to render decisions that fit as much as possible with existing legal resources and decisions, and where they cannot, they render decisions with the help of general principles that are either presupposed by existing institutional resources, or which serve to justify them.

58  This approach to textual interpretation dovetails well with the above discussion of internal and external principles of justice and their role in settling normative issues in IEL. We can say, following Dworkin, that an international economic law tribunal may have recourse, in hard cases, to principles of justice internal to the regimes within which they are operating, or to external principles which themselves justify these regimes. This allows for a constructive approach to legal interpretation that employs general normative principles of sufficient relevance and consensus to make sense of the rules an adjudicator must apply in particular cases, in a way that the relevant community will recognize and support.

59  Key to the integrity of the Law as Integrity approach is the community of principle to which the decision is addressed (Dworkin, 1986, 176). This community is bound less by rules or pragmatic alignment of self-interest, than it is by a shared commitment to principles of justice, fairness and due process which are presupposed by the institution itself and the coherence of its decisions (Dworkin, 1986, 176). In the international law context, then, a successful international adjudicator will attempt the best fit with existing sources of positive law (Legal Positivism; Sources of International Law; Positivist Approaches and International Adjudication) but then also justify this reading by recourse to the principles of justice, fairness, and due process that are presupposed by both the relevant system or systems of international law, and the institutional legal framework as a whole, implicated in the controversy (Jackson, 1993, 189) (General Principles of Law; General International Law (Principles, Rules and Standards); General Principles of International Procedural Law).

2.  Managing Justice Issues in International Economic Law Cases

60  Fairness issues in IEL adjudication, whether or not embedded in hard cases, present themselves in a number of guises. To take just one example, in both WTO and investment disputes, fairness issues often present as some manner of question concerning equality or inequality of treatment, or justified or unjustified discrimination. On first impression it would seem that such fairness claims are about one’s share of treaty benefits and rights, and therefore readily settled by the rules, principles and outcomes embedded in the treaties themselves. Enforce the treaty, and you have ensured fairness.

61  However, as discussed above, the language of the treaties does not always resolve its own interpretive issues, nor does it apply itself—this remains the work of the adjudicators. Effectively applying the treaty language to fairness claims can be enhanced by an understanding of what fairness means to both the regime in question and all affected communities, what different competing fairness principles look like, and how they nudge interpretations in one direction or another.

(a)  Claims of Equality and Inequality

62  One of the most characteristic forms in which fairness issues present themselves in a dispute is when claims of equality and inequality are foregrounded in the arguments of the parties. Many treaties contain express provisions, and make structural assumptions, mandating equality of treatment among members in certain cases, and unequal treatment in others. However, the precise nature of the equality of treatment is in many cases underdetermined by the treaty and its context. Herein lie the adjudicator’s responsibility and opportunity.

63  In one landmark case, EC Tariff Preferences (‘GSP case’) (EC – Tariff Preferences, Appellate Body, 2004), the Appellate Body utilized basic notions of Aristotelian justice—treating equals equally and unequals unequally—as an interpretive strategy to determine what kinds of equality obligations remained embedded in a set of policy tools—Special and Differential Treatment (‘S&D’)—that specifically allowed for unequal treatment. The question in that case, summarizing briefly, was whether the European Communities (‘EC’) had unfairly excluded India from certain benefits it extended to other developing countries in its tariff preference programmes.

64  Preference programmes are inherently discriminatory—some WTO Members qualify for them, others do not, a kind of discrimination that can readily be justified on policy and justice grounds, ie pro-growth strategies or Rawls’ Difference Principle, for example (Garcia, 2003). This sets up a kind of tension, however, between preferences and the basic notion of fairness in the WTO. In the WTO, fairness means protecting equally the Members’ expectations of nondiscriminatory treatment, and that means respecting and enforcing Article I and III GATT in the application of recognized exceptions such as developing country preference programmes (Carmody, 2008, 527–57). In the GSP case, India argued on such grounds that all developing countries were entitled to the same preferential treatment under the Generalized System of Preferences (‘GSP’) programme in question—in other words, that WTO fairness rules required non-discriminatory treatment among beneficiaries of an inherently discriminatory policy exception.

65  The Appellate Body, siding with the EU, disagreed, holding that in this context responding positively to needs of developing countries could include treating different developing countries differently, ie such differential treatment is fair, provided particular preferences are made available to all beneficiaries that share that need so that differential treatment must be evenhanded. In arriving at its conclusions, the Appellate Body began with the ordinary meaning of the term nondiscriminatory, and proceeded to make an essentially Aristotelian argument (EC – Tariff Preferences, Appellate Body, 2004, paras 151–62).

66  Although the EU lost the case on other grounds, the Appellate Body’s interpretive approach stands in support of the central point of this Entry: in international adjudication, distributive justice issues present as textual interpretation issues. Moreover, the decision illustrates a second important point about how justice works in international adjudication: principles of justice that are suitably broad and suitably consensus-based may well inform the ordinary meaning of the term in question. The Appellate Body did not need to explicitly invoke Aristotle as an external principle of justice to resolve this textual interpretation issue, treating it instead as an exploration of the ordinary meaning of the term, straight out of the VCLT.

67  Law as Integrity can help us understand why this would be so. By its nature, the ordinary meaning of a justice term like discrimination or equality will contain a high degree of normative content and reflect a significant degree of normative convergence, in this case on some version of a principle that equals are to be treated equally and unequals unequally. If it did not enjoy such consensus, it would not otherwise be an ordinary meaning of the term.

68  The VCLT limited contextual approach to treaty interpretation reinforces this practice and in fact offers additional sites for reference to broadly supported principles of justice. One must put the ordinary meaning of such a term into its context, which includes a preamble often stating the broader social aims and concerns of the treaty parties and interpret the text in light of the treaty’s object and purpose, which may also include broader social goals. Thus context, object, and purpose introduce larger social aims into the interpretive process, inviting the adjudicator to aim for a reading of the text that contributes towards coherence between text and these larger social goals. Principles of justice can be instrumental in informing and assuring such coherence at the level of language and deep treaty structure.

(b)  Managing the Scope of Public Policy Exceptions

69  Conflicts over the scope and proper interpretation of public policy exceptions in IEL treaties, also referred to as trade or investment issues, present a second site for working as adjudicators with the relationship between the rules and structures of IEL and questions of global justice (Garcia and Ciko, 2013, 54–95; Follesdal, 2018, 493–95). In adjudicating disputes involving linkages such as trade or investment and development, labour, the environment, and human rights, international tribunals confront many serious contemporary problems involving gross economic inequalities, conflicting concepts of human dignity and environmental protection, and other heavily value-laden issues such as culture and property.

70  Such cases inescapably raise questions of justice because they (1) involve decisions as to the allocation of social goods and social burdens across national boundaries; (2) highlight the effects of our actions on the well-being and property of others across national boundaries; and (3) resolving them will involve evaluating across national boundaries the propriety of certain gains and the correction of improper gain (Dunoff, 1998, 384). Equally important for our purposes, each linkage site also involves one or more textual interpretation issues. For example, resolving such linkage cases will generally involve determining the scope of a treaty-based public policy exception, the meaning of which will hinge on the interpretation of key textual terms such as ‘necessary’ (Australia —Salmon, Appellate Body Report, 1998; CMS Gas Co v Argentina, 2005; Garcia 2006), ‘likeness’ (Japan – Taxes on Alcoholic Beverages, 1996 Appellate Body Report; Clayton and Bilcon v Government of Canada, 2015; Garcia 2016), or ‘public morals’ (EC — Seal Products, Appellate Body Report, 2014; China – Publications and Audiovisual Products, Appellate Body Report, 2009).

71  Beginning with its early environmental cases, the WTO Appellate Body has been a leader in developing this jurisprudence, through interpretive practices that allow states to pursue important non-trade values in ways that are consistent with the regime’s emphasis on market access rights (Follesdal, 2018, 495). Put in terms of Law as Integrity, the attempt has been to craft a jurisprudence that would be consistent with the internal and external principles that justify the trade regime, such as its core commitments to trade liberalization and to equal protection for each Member State’s legitimate expectations (Carmody, 2008, 527–57), while respecting other key values outside the regime such as environmental protection and the protection of public morals (more will be said about this below) (US – Shrimp, Appellate Body Report, 2001) (‘US – Shrimp’).

72  The investment regime, on the other hand, has struggled considerably in the area of public policy exceptions. This is due to textual differences with respect to both obligations and exceptions when one compares BIT and WTO treaty provisions and is compounded by how investment arbitration panels have interpreted the former (Henckels, 2018; Garcia, 2016). The structural deficits of the ISDS framework with respect to coherence and the correction of error (Garcia and others, 2015), have led to inconsistent outcomes on key textual provisions such as ‘necessity’ in a time of economic crisis (Burke-White, 2008), a general scepticism that the investment regime as currently constituted can handle public policy conflicts (Martini, 2018), and concern that the regime casts a regulatory chill over domestic policy makers (Van Harten and Scott, 2015). Taken together, this suggests that with respect to this key area for managing global justice concerns, the investment regime is, if not an agent of injustice, then ill-equipped as currently constituted to contribute to global justice.

73  Returning to the WTO, critics have argued that the Appellate Body should take its interpretive approach a step farther and find scope within existing public policy measures for human rights-oriented non-trade measures (Howse, 1999, 131), or for widely-shared global distributive justice norms such as the Millennium or Sustainable Development Goals (‘SDG’) (Follesdal, 2018, 495; Sustainable Development; Agenda 21). In both cases, a Law as Integrity approach offers helpful guidance within the VCLT canons. It may well be, for example, that the ordinary meaning of terms such as public morals (Art XX (a) GATT 1947) and sustainable development (Preamble, Marrakesh Agreement Establishing the World Trade Organization, 1994) are already informed by core human rights norms or the SDGs, respectively, as relevant sets of justice principles enjoying broad consensus within the community of principle to which these decisions will be addressed.

74  In the case of human rights, it may also require us to read treaty terms such as public morals, or even possibly prison labour in Article XX (e) GATT, as evolutionary terms, thus allowing for a broader contemporary human rights understanding to inform the text (Howse, 1999, 131). However, this possibility takes us to our third site for interpretive justice.

(c)  Determining the Scope of Evolutionary Terms

75  In certain cases, resolving the meaning of public policy exceptions towards a more just system (as discussed above) can also involve a third interpretive practice essential to justice, namely determining the meaning of evolutionary terms (Follesdal, 2018, 496) (Evolutionary Interpretation). The US – Shrimp case is a landmark WTO decision in which the panel was faced with both the need to determine the scope of a public policy exception, and the meaning of an evolutionary term.

76  In that case, the fate of US environmental protection legislation—here designed to protect sea turtles from death by drowning in shrimp nets, and enforced extraterritorially through an import ban—depended on the panel’s interpretation of Article XX (g) GATT. Article XX (g) excuses measures ‘related to the conservation of exhaustible natural resources’, the latter element being the key interpretive challenge: what constitutes an exhaustible natural resource at the end of the twentieth century?

77  An adjudicating body cannot avoid that normative question. Any interpretation of this textual issue is a distributive justice decision: even to conclude that the term means now what it meant in 1947 is to make a distributive justice decision. In order to decide this case in keeping with new laws, standards, and understandings about environmental responsibility, the Appellate Body was called upon to interpret and apply the WTO treaty rules and resolve, among other things, how the trade burden of environmental protection should be fairly allocated and to what degree the trading system would facilitate, or retard, environmental protection.

78  Deciding such complex issues ultimately comes down again to how to work with the texts themselves. Reading US – Shrimp through the lens of Koskenniemi and Law as Integrity, for an adjudicator to decide what exhaustible natural resources means in the context of Article XX (g) GATT, and faced with unilateral action by a powerful state, the adjudicator has two options: either decide the case according to who that state is by either simply overlooking or challenging power as power; or rely on principles of justice to decide the issue according to the integrity of the legal system in question. In US – Shrimp, this meant finding some consensus principle—whether in preamble, the text, or in the structure of the WTO itself and its key shared understandings—acceptable to the community of principle that would receive it, in order to decide the question of what constitutes an exhaustible natural resource.

79  One could restate the implicit principles ultimately relied on by the Appellate Body as follows:

The environment belongs to everyone and must be used sustainably, and must be protected from use by any one state to the detriment of other states and future generations. When trade is used to effect this protection, it must be done in a way that is consistent with the community’s norms of fairness in economic relations (i.e., nondiscrimination and the equal protection of justified expectations) (US – Shrimp, Appellate Body Report, paras 52–154).

80  These principles are not expressly stated in the treaty, but neither are they foreign to the treaty, nor in the view of the Appellate Body should their articulation shock Member States (US – Shrimp, Appellate Body Report, paras 151–59).

81  Law as Integrity can help us reconstruct why the WTO community of principle would find these rationales acceptable. These principles of justice can be supported by both internal and external principles of justice assumed by the international legal frameworks in question: the trade regime and the environmental regime, which together have broadly overlapping membership, and which could in fact be considered a single community of principle. With respect to trade, the Appellate Body’s approach takes care to give due respect to the justified expectations of each WTO member for equal treatment, a core internal principle of WTO justice (Carmody, 2008, 527–57), by in fact ruling the US measure as contrary to the treaty for failing to fulfill this obligation in its application (US – Shrimp, Appellate Body Report, paras 184–86). With respect to the environment, the Appellate Body’s interpretive approach is grounded both in the treaty text, with sustainable development as a preambular goal; and in core principles of justice undergirding the environmental regime, such as the principle of common ownership of the Earth as a shared understanding with normative implications (Risse, 2013, 89–129).

82  Law as Integrity thus helps us understand the Appellate Body’s skill in achieving a jurisprudence that is coherent with both the trade and environment ‘communities of principle’ receiving this decision. It thus represents a model for any tribunal working with difficult interpretive questions of justice across any regime.

83  In contrast, the international investment regime has struggled with terms that are deemed evolutionary by some tribunals, and not by others, such as the core doctrine of Fair and Equitable Treatment (‘FET’). The absence of mechanisms to ensure coherence and correct error mean that parties and adjudicators can freely choose from awards holding opposite views on essentially the same operative FET language. These decisions run the gamut from viewing FET being evolutionary in nature and hence creating broader liabilities for states than originally contemplated (Gold Reserve Inc v Bolivarian Republic of Venezuela, 2014), to viewing FET as ineluctably tied to the customary international law minimum standard of treatment of aliens (Glamis Gold Ltd v United States, 2009). This incoherence creates significant interpretive and regulatory problems for states (UNCTAD, 2012, 30–31), contributes to the crisis of legitimacy facing the BIT/ISDS regime today (Garcia and others, 2015), and is therefore an important reason for the numerous calls for reform of investment law adjudication mechanisms.

E.  Conclusion

84  IEL adjudication—like all adjudication—is deliberative decision-making about the nature and meaning of words, and therefore an exercise in the working out of distributive justice principles implicit in the words, structure, and social practices of the relevant system itself. In this way IEL adjudicators are a key part of the global basic structure, and their work can render decisions contributing to a more just global system. As Follesdal writes, that is the ‘good news’ (2018, at 492).

85  The bad news, or the limits of this contribution, are several. First, as the system is currently configured, realizing this possibility lies entirely within the discretion of the adjudicators and depends upon their goodwill and interpretive practices, and on the demand for such jurisprudence from states and other key stakeholders (Follesdal, 2018, 492). Second, several notable structural features of the global environment—its state-centrism, the scope for asymmetries in power to result in unbalanced treaty regimes, the ad hoc and procedurally deficient nature of much IEL adjudication—combine with the limits inherent in the judicial function to make even incremental change, let alone fundamental reforms towards distributive justice, quite problematic.

86  These limits, however, make the role of IEL adjudicators even more essential.

87  The work of international adjudication within IEL offers a number of possible sites for adjudicators prepared to constructively engage their professional responsibilities through interpretive practices according to principles of justice. Chief among these are cases in which the resolution of a dispute involves difficult interpretive questions centered around fairness and unfairness: equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. One could add to this list other sites for strengthening global justice through interpretive practice, such as bolstering the role of precedent (Judicial Precedent), and rendering decisions that promote coherence between IEL regimes and the rules and decisions of other regimes such as human rights and the environment (Follesdal, 2018, 496–98; De-Fragmentation Techniques).

88  Effective treaty interpretation by international adjudicative bodies requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address, or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question. In one sense, this is nothing more than a paraphrase of the VCLT’s limited contextual approach to treaty interpretation. In another sense, this is what judicially operationalizing principles of justice is all about.

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Cited Cases