Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

Published date01 August 2017
DOI10.1177/1023263X17729993
Date01 August 2017
AuthorJoanna Jemielniak
Subject MatterArticles
Article
Commercial stakeholders in
international economic dispute
resolution and the issue of
adjudicatory independence
Joanna Jemielniak*
Abstract
The article discusses the problem of influence exerted by commercial actors in international trade
disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores
the role of commercial stakeholders inasmuch as they comprise a driving force behind state action,
and examines procedural options available to those stakeholders. The issue of adjudicatory
independence and neutrality is considered in the context of involved industries and their interests
as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural
aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of
non-party actors, are also examined. It is argued that WTO litigation is often only one track among
several available to the stakeholders in the pursuit of their interests. As a consequence, the
problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body
in the area under discussion 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
evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing
standards of adjudicatory independence is deemed a significant factor in strategic selection of the
most advantageous forum for dispute resolution.
Keywords
trade disputes, adjudicatory independence, neutrality, commercial actors, arbitration
* Associate Professor at the Faculty of Law, University of Copenhagen, Centre of Excellence for International
Courts (iCourts)
Corresponding author:
Joanna Jemielniak, University of Copenhagen, Copenhagen, Denmark.
Email: joanna.jemielniak@jur.ku.dk
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 582–601
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17729993
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1. Introduction
Commercial actors have always played a crucial role in disputes in all three areas of international
economic law – either directly, as parties to the controversies (in investment and commercial
cases), or indirectly, as a driving force behind the states’ actions (in trade disputes). The highly
proactive stance, adopted by private stakeholders, leads to questions surrounding their procedural
status and scope of influence in the context of adjudicatory independence in each of the three
respective fields. Raising this question in the context of all the three respective areas is more
important, as recent years have given rise to phenomena such as forum shopping and the initiation
of parallel proceedings across the fields of international economic law, as well as the exploration of
fora developed in other areas (such as the use of one private arbitral institution, the London Court
of International Arbitration; for two arbitrations in the Softwood Lumb er trade case between
Canada and the United States).
1
Furthermore, recent decades have also brought about significant enhancements in the WTO
Dispute Settlement Mechanism’s transparency standards, as well as in investor-state arbitration.
The latter field has also been affected by the political attempts to introduce a court-like mechanism
for the resolution of investment controversies – a concept long postulated by legal doctrine. Such
initiatives have been undertaken by the European Commission in the negotiation of several
recent free trade agreements. If implemented, these mechanisms will incorporate independence
safeguards, and will operate on the basis of established transparency standards, which will directly
affect the position of private stakeholders.
This article analyses these phenomena. In particular, it seeks to examine how the adopted pro-
cedural solutions in each of the three fields determine the scope of commercial stakeholder’s actions
which might influence the proceedings and adjudicators. This is considered in the context of their
participationas parties, as well as their accessas non-parties, based on transparencystandards. As the
adopted perspective is a legal doctrinal one, the political aspects of the discussed topic (such as
commercial actors lobbying states with regard to trade disputes) lie beyond the scope of this article.
This article explores the formal role of commercial actors in each of the discussed fields and
highlights their interconnections. It also analyses the adopted concepts and relevant procedural
safeguards of adjudicatory independence and neutrality in the examined areas. The possibilities
of indirect monitoring and influence over the proceedings by private actors’ who are not parties,
through transparency and non-party participation options are considered in turn. This analysis is
followed by a discussion ofthe new developments, in particular the consolidation of thejudicializa-
tion trend in investor-state dispute resolution mechanisms and the possible consequences thereof.
The issue of introducing court-like mechanisms for investment cases and the inspiration from the
WTO Dispute Settlement Mechanism in this regard are addressed. Finally, some concluding
remarks are offered.
2. The role of commercial actors in international economic dispute
resolution – general remarks
In all of the three main areas of international economic law, commercial actors have played a
crucial role, either directly (as parties to legal relationships and dispute resolution processes in
1. Pursuant to Article XIV of the Softwood Lumber Agreement (SLA) of 2006, https://www.state.gov/documents/orga
nization/107266.pdf; compare, R.A. Schu
¨tze, Institutional Arbitration: A Commentary (Bloomsbury Publishing, 2013).
Jemielniak 583

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