Methodology problems in international economic law and adjudication

Research paper by Ernst-Ulrich Petersmann

Indexed on: 04 Nov '16Published on: 04 Nov '16Published in: Jindal Global Law Review


This overview of “methodology problems” in international economic law (IEL) and adjudication defines “legal methodology” as the “best way” for identifying the “sources” of law, legitimate authority, the methods of legal interpretation, law-making and adjudication, the “primary rules of conduct” and “secondary rules of recognition, change and adjudication”, the relationships between “legal positivism”, “natural law” and “social theories of law”, and the “dual nature” of modern legal systems. It discusses the methodological challenges resulting from the often incomplete, fragmented and under-theorized nature of multilevel, public and private regulation of transnational movements of goods, services, persons, capital and related payments. Governments and lawyers disagree on how to define the legitimate functions of IEL as an instrument of social change, the “legal system” of IEL, and how to transform the “law in the books” into socially effective “law in action” so as to protect the rights and welfare of citizens more effectively. Democratic, republican and cosmopolitan constitutionalism suggest that the five competing conceptions of IEL as (1) international law among states, (2) private international law (e.g. commercial, investment and “conflicts law”), (3) multilevel economic regulation (e.g. based on “law and economics”), (4) global administrative law and (5) multilevel constitutional law (e.g. in European common market and monetary regulation) need to be integrated; they must protect democratic, republican and cosmopolitan rights of citizens who—as “constituent powers”, “democratic principals” and main economic actors—must hold multilevel governance institutions and their limited, delegated powers legally, democratically and judicially more accountable so as to limit “market failures” as well as “governance failures” more effectively. Arguably, the universal recognition of human and constitutional rights of citizens requires cosmopolitan reforms of IEL and stronger judicial remedies for protection of transnational rule of law.