Volume 15, Issue 2 - Special Issue: International Courts and Social Justice

International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications 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. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice 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.

What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.

This paper focuses on the reforms proposed to investment law, in particular in relation to dispute resolution, from the standpoint of justice. It sets out the ways that the proposed adoption of a standing investment court with an appellate instance would impact the justice of the international investment law system by focusing on the notion of justice as fairness. By assessing the impacts of the proposed changes’ limits on the discourse about investment law, I argue that the effects of the proposed reforms will dampen tribunal exchanges about contentious legal interpretations. This will not move the system closer to a fully just international order because the core values are not ones of discourse but rather those of protecting state sovereignty. Justice, if it follows, will be only that which fits within the framework of heightened sovereign power.

What is the place of voluntary self-regulation in today’s international trade? Can we continue to understand the contract in its relation to the historical unity of state and law considering the massive transformation of the closely related dichotomies between national and international, public and private, and hard law and soft law? What is the role of corporate social responsibility (CSR) in the contemporary debate over global value chains (GVCs)? This paper addresses on the role of law in societal challenges arising from the kaleidoscopic view of globalization. GVCs operate through interdependent contracts and in relation to multiple normative orders that impose moral, economic, and legal obligations. This paper seeks to re evaluate the role of contract law in its relation to sustainable and ethical global trade. The perspective it develops prioritizes the interaction between extra-legal considerations in contract law and the momentum of CSR as well as the historical dynamics of law, economics, and politics.

Income inequality is at an all-time high in the Europe Union (EU). Implications from the economic crisis which broke out in 2008, and in particularly the austerity measures introduced by Governments in Eurozone countries receiving bailout programmes, created further inequalities, for example between men and women. This paper starts from the hypothesis that whereas other institutions in the EU have played a direct role in tackling the economic crisis, the Court of Justice of the European Union (CJEU) may have played a more indirect role, which nonetheless can have an overlooked value in particular for setting direction for legal norms of equality and anti-discrimination in Europe. The paper therefore addresses a legal-empirical question: To what extent does the anti-discrimination case law of the CJEU reflect the increased inequalities in Europe following the economic crisis? Based on a dataset of all anti-discrimination cases of the CJEU, I conduct a quantitative analysis of changes in the case law from before to after the economic crisis. I find that there is only weak evidence, which suggests that the case law of the CJEU reflects the increased inequalities following the economic crisis.

Like any other adjudicative body, the Court of Justice of the European Union (CJEU) is an essentially reactive institution: it cannot create disputes on its own motion, but it needs to be ‘mobilized’. This simple observation leads us to a question of central importance in the field of courts and social justice: who brings social justice claims before the Court of Justice? This is a particularly salient question if confronted with the Court’s restrictive legal standing rules: individuals and collective actors have limited access to the Court and engaging in EU litigation requires the availability of specific resources and allies. This paper relies on an original dataset of 291 rulings of the CJEU in the field of migration, complemented with qualitative empirical research, to unveil and map the actors that defend migrant rights in Luxembourg. The analysis offers an innovative and critical reflection on the accessibility of international courts by disadvantaged groups, showing how some features of the preliminary reference procedure affect the type of actors that engage in EU litigation.