Ernst-Ulrich Petersmann

• European University Institute

Rainer Hofmann and I shared the enlightening experience of having written our ‘habilitation books’ under the supervision of Professor Rudolf Bernhardt, former Director of the Heidelberg Max-Planck Institute for International and Comparative Public Law and former President of the European Court of Human Rights, on the relevance of fundamental rights...

Chapter 1 gives an overview of the objectives, complexity, and regulatory challenges of the UN Sustainable Development Agenda and summarizes the book’s policy conclusions. It explains why executive trade, environmental, health, and related emergency governance continues to progressively undermine transnational rule of law and multilateral agreement...

International trade, competition, investment, social and environmental laws need new rules in order to better take into account the risks of market failures and governance failures (including climate change) in relations between neoliberal economies (e.g. in Africa, the Americas and Asia), state-capitalist economies (e.g. in China and many of its A...

The power-oriented GATT/WTO traditions of member-driven governance risk undermining the dispute settlement system of the WTO, its judicial administration of justice and rule of law. US trade policies, the “Brexit”, and non-democratic rulers challenge multilateral treaties and judicial systems by populist protectionism prioritizing “bilateral deals”...

In this chapter, Section 1 discusses the increasing constitutionalization of human right law (HRL) and international economic law (IEL) at national and regional levels of governance and its implications for the settlement of disputes. Section 2 discusses constitutional justice principles as legal basis for impartial third-party adjudication requiri...

EU Liability and International Economic Law by Armin Steinbach Bloomsbury/Hart Publishing, 2017 - Volume 17 Issue 3 - Ernst-ulrich Petersmann

The free trade agreements (FTAs) of the European Union (EU) aim at protecting transnational public goods (PGs) – such as a rules-based, transatlantic market – that could be progressively extended to other European and North-American FTA members and serve as a model for reforming worldwide trade rules and governance institutions. International law a...

Democracy and constitutionalism are communitarian methodologies. My arguments for limiting market failures, governance failures, and related injustices in the global division of labour by using the universal recognition of human rights for reinterpreting the 'international law of states' as 'multilevel governance of public goods' protecting citizen...

The power-oriented General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) traditions of 'member-driven governance' risk undermining the dispute settlement system of the WTO and its judicial administration of justice. US President Trump, the 'Brexit', and non-democratic rulers challenge multilateral treaties and judicial system...

The legitimacy of law depends on its justifiability vis-à-vis citizens and peoples in terms of constitutionally agreed principles of justice. This chapter explains why constitutional democracies, EU law and UN law define “democracy” in different ways; and why multilevel governance institutions often resist protecting individual and democratic right...

This contribution suggests a republican interpretation of EU citizenship rights based on the following three propositions: first, the more globalisation transforms national into transnational public goods, the more democratic and republican constitutionalism requires to design and implement transnational public goods treaties as democratic law empo...

Globalization transforms most national into transnational public goods (PGs), which no state can protect unilaterally without international law and multilevel governance institutions. Democratic, republican and cosmopolitan constitutionalism have proven to be the most effective “legal methods” for protecting transnational “aggregate PGs” like open,...

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 adjudi...

This contribution discusses national, regional, and international court challenges by tobacco companies and tobacco-exporting countries of the legality of governmental restrictions of tobacco trade and the judicial ‘administration of justice’ in interpreting the fragmented, multilevel health, economic, and human rights regulations. In spite of the...

This short comment on the preceding article by Prof. Schneiderman calls for the clarification of legal methodologies in research on international economic law (IEL) and on the ‘constitutionalisation’ of multilevel governance of international public goods (PGs). While European lawyers and courts throughout Europe accept the ‘constitutionalisation’ o...

The current system of international law is experiencing profound transformations. Indeed, the simultaneous processes of globalization combined with the disintegration of international systems of governance and law-making pose complex challenges for legal scholarship. The doctrinal response to these challenges has been theorized within two seemingly...

In numerous publications, John Jackson emphasized 'the strong link between international law and national constitutional systems, which must be understood in order to understand the international economic system'.1 This short contribution in memory of John endorses - and elaborates on - Jackson's proposition that 'international lawyers must morph i...

This contribution begins with discussing 'legal methodologies', the competing conceptions of international economic law (IEL), the controversies over their underlying 'principles of justice', and the competing methods for promoting legal coherence in IEL (section 1). It then describes 'fragmentation' and 're-integration' as inevitable, dialectic me...

Should the EU design transatlantic free trade agreements (FTAs) as a power-oriented "international law among states", a "democratic law among peoples", or as a "cosmopolitan law among individuals" as the legitimate "constituent powers" and "democratic principals" of all governance agents in the 21st century? Why are fundamental rights so important...

Evaluations of the Comprehensive Economic and Trade Agreement (CETA) among Canada and the European Union (EU) and of the ongoing EU–US negotiations on a Transatlantic Trade and Investment Partnership (TTIP) depend on their legal, economic, and political methodologies for multilevel governance of public goods (PGs) like a transatlantic market. In co...

Tobacco companies and tobacco exporting WTO members have initiated an increasing number of disputes in national, regional and worldwide jurisdictions and investor-state arbitrations challenging the legal consistency of tobacco control measures such as Australia's "Tobacco Plain Packaging" legislation and regulations with international trade, invest...

I met Horst G. Krenzler the first time during my work as research fellow at the Max-Planck Institute for International and Comparative Public Law in the late 1970s at Heidelberg, where Krenzler campaigned for the Liberal Democratic Party in the first direct elections to the European Parliament. During our later meetings in EC institutions at Brusse...

International economic law (IEL) continues to evolve through dialectic processes of unilateral, bilateral, regional and worldwide regulation aimed at protecting cosmopolitan rights and transnational rule of law in mutually beneficial economic cooperation among citizens in a globalizing economy (section 1). The more transnational protection of cosmo...

Section I explains why the human rights obligations of all UN Member States call for a new philosophy of international economic law (IEL) in order to protect rights of citizens and their democratic demand for transnational public goods (PGs) more effectively. Section II discusses five different conceptions of IEL and the need for their ‘legal integ...

The global financial crisis and subsequent sovereign debt crisis in Europe demonstrated that the relationship between law and economics in the design of the monetary system must be revisited. International monetary affairs are usually conducted via domestic monetary policies which are formulated by independent central banks and informed mainly by e...

This contribution argues that the perennial negotiations on adjustments of the law of the WTO (e.g. by means of the Doha Round negotiations) and of UN law (e.g. adjustments of the IMF quota and voting system, UN climate change regulations) reflect systemic problems of multilevel governance of international public goods (PGs) that call for reviewing...

During the global economic crisis of 2008, countries around the world used national policy spaces to respond to the crisis in ways that shed new light on the possibilities for linkages between international trade and human rights. This book introduces the idea of policy space as an innovative way to reframe recent developments in global governance....

International commercial, investment and regional economic law dynamically evolve in response to thousands of judgments by national and international courts cooperating on the basis of international conventions on the recognition and enforcement of foreign arbitral awards and international commercial, investment and regional economic agreements. Th...

Law and governance need to be justified vis-à-vis citizens in order to be accepted as legitimate and supported by civil society. This contribution argues that the legal and judicial methodologies of multilevel governance for international public goods need to be changed in order to protect basic needs and human rights of citizens more effectively....

This contribution discusses legal and methodological problems of multilevel governance of the international trading, development, environmental and legal systems from the perspective of “public goods theories” and related legal theories. The state-centred, power-oriented governance practices in worldwide organizations fail to protect effectively hu...

The article offers an ‘insider story’ of the establishment of the Office of Legal Affairs in the General Agreement on Tariffs and Trade (GATT 1947) in 1982/83 and of its increasing involvement in assisting GATT dispute settlement panels and the Uruguay Round negotiations on a new World Trade Organization with compulsory jurisdiction for the settlem...

The more ‘globalization’ transforms ‘national public goods’ demanded by citizens into transnational ‘aggregate public goods’, the stronger becomes the need for reviewing ‘Westphalian governance failures’ and related ‘legal methodologies’ (Section I). Resolving the ‘constitutional problems’ and ‘collective action problems’ of multilevel governance (...

This symposium summarizes the main conclusions of an interdisciplinary conference on Multilevel Governance of Interdependent Public Goods at the European University Institute, Florence, in Spring 2011 and reproduces 4 of the altogether 15 conference papers. 1 This 'Introduction' identifies areas where global public goods theories need further resea...

Section II discusses six different conceptions of justifying international economic law (IEL). Section III argues that the ‘dual nature’ of modern IEL requires limiting ‘Westphalian conceptions’ of ‘international law among states’ through protection of ‘cosmopolitan rights’ and judicial remedies of citizens in IEL. Section IV explains why past doct...

This article, accepted for publication in the 2012 Polish Yearbook of International Law, argues that – in order to make international economic law (IEL) a more effective instrument for protecting human rights and other public goods – citizens and courts of justice must insist on interpreting and developing IEL ‘in conformity with principles of just...

This contribution is based on my lecture at the SIDI XVI annual meeting of the Italian Society of International Law in June 2011 at Catania. Section I of this contribution recalls that – due to the ‘dual’ and ‘incomplete nature’ of human rights as positive law and moral rights - the legal protection of ‘inalienable’ human rights risks always remain...

This lecture, delivered at Copenhagen Business School on 18 November 2011, examines the legal and constitutional methodologies underlying private commercial arbitration, national, regional and worldwide adjudication in trade and investment regulation with a particular focus on ‘multilevel judicial governance’ inside the European Union (EU) relating...

International customary law requires interpreting treaties and settling related disputes ‘in conformity with principles of justice’ and the human rights obligations of states. Yet, in contrast to UN law, European economic law and related adjudication by the International Court of Justice (ICJ) and European courts, international trade and investment...

The 1994 agreement establishing the World Trade Organization (WTO) regulates over 95% of world trade amongst 148 member countries. The November 2001 Declaration of the Fourth Ministerial Conference of the WTO in Doha, Quatar, launched the Doha Development Round of multilateral trade negotiations in the WTO on twenty-one topics aimed at far-reaching...

Is ineffective protection of international public goods, and thereby also of interrelated national public goods, the inevitable fate of humanity? The negative answer to this question in Section II argues that ineffective protection of public goods is mainly due to a lack of adequate theories, rules, and institutions for overcoming the collective ac...

European economic and environmental law demonstrates that constitutional and cosmopolitan conceptions of international economic and environmental regulation can protect consumer welfare and equal rights of citizens more effectively than “Westphalian conceptions” of “international law among sovereign states”. The obvious “governance failures” to con...

This final chapter draws conclusions from the second edition of Constitutionalism, Multilevel Trade Governance and International Economic Law by discussing the diverse conceptions of international economic regulation presented by Profs. Joerges, Stewart, Cottier and other contributors to this book. Section I begins with methodological questions of...

This contribution argues that concepts of social justice in European and international private law must remain consistent with the principles of justice underlying European and international public law. The contribution begins with a brief explanation of the diversity of conceptions of constitutional justice and of their legal impact on ever more f...

The book offers a systematic analysis of the interaction between international investment law, investment arbitration, and human rights, such as the role of national and international courts, investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investmen...

The Brazilian Tyres case that was adjudicated by both MERCOSUR and WTO dispute settlement bodies illustrates the issues raised by multilevel judicial governance. The relationship between regional and global trading systems has become increasingly complex, raising the question whether Article XXIV GATT is still sufficient. Similarly, the way Article...

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of 'constitutional justice'. The principles of procedural justice underlying WTO dispute settlement procedures, like the conformity of WTO dispute settlement rulings with principles of 'substa...

The book offers a systematic analysis of the interaction between international investment law, investment arbitration, and human rights, such as the role of national and international courts, investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investmen...

This chapter gives an overview of the diverse 'constitutional approaches' of the European Court of Justice (ECJ), the European Free Trade Area (EFTA) Court, the ECtHR, and national courts throughout Europe, for example in their judicial review of governmental interferences into economic freedoms and other fundamental rights on the basis of judicial...

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercia...

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercia...

This chapter uses the example of investor-State arbitration concerning private water services in a brief discussion of the applicable law, and the role of the judge in the settlement of international investment disputes involving human rights. It argues that the independence and impartiality of 'public law judges' require them to interpret investme...

The cosmopolitan ideals of constitutional protection ofequal basic freedoms go back to ancient Greek and Romanrepublicanism. In the Greek and Roman republics, they were realizedonly for a small part of the population (essentially male citizensowning property). Yet, as illustrated by Immanuel Kant’s theory ofconstitutional rights to equal freedoms a...

This chapter discusses some of the 'constitutional problems' in the national and international judicial protection of individual freedom and justice in the international relations law of the EC. Topics covered include bottomup structures of multilevel human rights constitutionalism, top-down structures of multilevel economic constitutionalism, diff...

This chapter uses the genius loci of Thessaloniki in order to address questions relating to international justice that continue to be unduly neglected in international law and dispute settlement practice. Investor-state arbitration may be based either on commercial contracts and arbitration rules (such as those of UNCITRAL, the International Chambe...

How should citizens evaluate the ever more important case law of international economic courts and their sometimes inadequate responses (e.g. by investor-state arbitration) to 'the governance gaps created by globalization (which) provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparatio...

According to J. Rawls, ‘in a constitutional regime with judicial review, public reason is the reason of its supreme court’; it is of constitutional importance for the ‘overlapping, constitutional consensus’ necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious,...

Jean Monnet’s method for realizing Robert Schuman’s objective of a ‘European Federation’ for the preservation of peace envisaged successive phases of economic, legal and political integration for “an ever closer Union”. From the 1951 ECSC Treaty up to the 2007 Lisbon Treaty, European integration law evolved on the basis of international treaties re...

This contribution argues that the universal recognition of human rights requires judges to take human rights more seriously in their judicial settlement of disputes "in conformity with the principles of justice and international law", as prescribed in the Vienna Convention on the Law of Treaties (Preamble VCLT) as well as in the UN Charter (Article...

Since the establishment of the Permanent Court of International Justice in 1922, governments have consented to, and actively used, an ever larger number of international and transnational courts, quasi-judicial dispute settlement bodies and ad hoc arbitral tribunals for the settlement of disputes over the interpretation and application of rules of...

The latin adage 'ubi commercium, ibi jus' reflects the insight that the efficiency of markets and trade depend on legal guarantees of market freedoms (such as freedom of contract, property rights), legal security (e.g. as incentive for investments and division of labour) and on legal limitations of 'market failures' as well as of 'government failur...

This contribution argues that power-oriented, intergovernmental approaches to international economic law problems (e.g. trade sanctions in response to WTO violations) may offer less efficient and legally less effective instruments than citizen-oriented approaches (e.g. private judicial remedies in domestic courts in response to certain WTO violatio...

Lessons from the past Most dispute settlement procedures of the General Agreement on Tariffs and Trade (GATT) and of the World Trade Organization (WTO) resulted from previous dispute settlement practices and were progressively codified (for instance, in 1966, 1979, 1982, 1989, and in 1994) in response to particular GATT and WTO legal problems.1 The...

This chapter examines trade and human rights issues in relation to the view that regional trade agreements (RTA) and the World Trade Organization (WTO) are competing fora for constitutional reforms. It examines the relevance of non-economic objectives and the human rights obligations of all WTO Members for RTA and WTO law. It concludes that WTO rul...

The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant...

The UN Charter and the Vienna Convention on the Law of Treaties require interpreting treaties and settling international disputes in conformity with the principles of justice and international law. This contribution discusses procedural and substantive principles of justice which the international judge may take into account in interpreting interna...

Governments perceive UN human rights conventions and the law of the World Trade Organization (WTO) as separate legal regimes. WTO jurisprudence, by contrast, interprets WTO rules as parts of international law and may soon be confronted with legal claims that WTO obligations are to be construed with due regard to the human rights obligations of WTO...

This paper discusses the basic constitutional problem of modern international law since the UN Charter: How can the power-oriented international legal system based on sovereign equality of states be reconciled with the universal recognition of inalienable human rights deriving from respect for human dignity and popular sovereignty? State representa...

The lack of any explicit linkages of human rights and trade rules in WTO law contrasts with the integrated regulation of the common market and human rights in many national constitutions as well as in the 2004 EU Treaty Constitution. Most national constitutions protect freedom of trade inside national frontiers without authorizing sub-national auth...

Florentino Feliciano and I met for the first time in a symposium on the Judicial Settlement of International Disputes at the Max-Planck Institute for Comparative Public Law and International Law at Heidelberg in July 1972. As assistant of the director of the Institute, Professor Mosler, I had just published a long article on ‘The New Law of North-S...

This book examines some of the defects and needs for reform in the current world trading system, which focuses on the World Trade Organization (WTO). The subtitle of this book - Legitimacy, Efficiency, and Democratic Governance - is very descriptive of the intent of the book's author and director, Professor Petersmann, and his view of the endeavour...

This chapter notes that, up to the end of General Agreement on Kennedy Round of Tariffs and Trade (GATT), the large number of GATT disputes over agricultural restrictions and subsidies influenced GATT negotiations on agriculture only marginally. The 'GATT 1947 bicycle' rolled and created the necessary political momentum for liberalizing domestic ma...

In July 2004, the annual conference on Preparing the Doha Development Round: V 70 Negotiators Meet the Academics at the Robert Schuman Centre for Advanced Studies of the European University Institute in Florence discussed the role of Developing Countries in the Doha Round: WTO Decision-Making Procedures and WTO Negotiations on Trade in Agricultural...

From the 1648 peace treaties of Westphalia to the 1945 U.N. Charter, public international law has evolved as a system of reciprocal rights and obligations among states based on sovereign equality and non-intervention into the internal affairs of states.1 The state-centered U.N. Charter, and its collective security system established by the victorio...

In June 2003, the annual conference on Preparing the Doha Development Round -- WTO Negotiators Meet Academics was held at the Robert Schuman Centre for Advanced Studies of the European University Institute (EUI) in Florence and discussed Challenges to the Legitimacy and Efficiency of the World Trading System -- Democratic Governance and Competition...

This chapter claims that the contemporary worldwide recognition of human rights requires taking the 'external challenges' to the legitimacy and efficiency of World Trade Organization (WTO) rules and WTO negotiations more seriously than this is done in intergovernmental WTO bargaining among trade experts on the more than twenty 'technical' agenda it...