14 March 2017

Joanna Jemielniak’s article accepted by Maastricht Journal of European and Comparative Law

The article Commercial Stakeholders in International Economic Dispute Resolution and the Issue of Adjudicatory Independence 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 in the paper 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.