Law v Rule of

The UN investment agency (@UNCTADwif) just published a piece of mine. A preview:

The field of development economics has taken a significant shift over the last several decades towards institutional explanations for economic growth, with scholars attributing a key explanatory role to independent judiciaries capable of constraining political branch discretion.[1] But the compatibility of this type of “branch autonomy” with international law has been called into question in a series of recent disputes under international investment agreements (IIAs). These lawsuits challenge domestic legal proceedings and show potential conflict between international and domestic law. Even when domestic courts function as “good institutions” from a social science point of view, they may find their decisions reviewed by international tribunals empowered under IIAs signed by other branches of government.

Judge Gregory Mize, a former DC judge appointed by the first President Bush and a respected advocate for improving subfederal and foreign courts, writes in response:

Circling back to the case law cited by Todd Tucker, I believe it would be prudent for the negotiators of international investment treaties, no matter which country they represent, to be mindful of the roots of their domestic court systems when contemplating the creation of judicial forums un-tethered to established courts. I hope professional negotiators appreciate that, if the consumers of traditional domestic court services around the globe come to see private parties and their national government executives have garnered an invincible, penthouse-level justice system for themselves, then there can well be a plummeting of public trust and confidence in judicial systems generally. That is a risk not worth taking.

From another perspective — if sovereign domestic courts in some countries are not up to the task of delivering fair and impartial justice, then governments hosting those courts should first set about improving their judiciaries rather than isolating them. Is that not what smart business managers do when faced with underperforming key components of their enterprises?

Go to the UN site to see the full piece, and Judge Mize’s response.

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