The Influence of General Principles of Law
Jan Wouters
Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies
Dominic Coppens
Institute for International Law
Dylan Geraets
affiliation not provided to SSRN
July 1, 2011
Katholieke Universiteit Leuven Working Paper No. 70
Abstract:
We analyze and compare the influence of general principle in the judicial systems of the European Union (EU) and the World Trade Organization (WTO). By clearly differentiating between external and internal general principles, we demonstrate that the use of general principles by respective judiciaries under both legal regimes is dissimilar and even somewhat opposite. The Court of Justice of the EU creates and uses internal principles of EU law and tempers the use of external principles of internal law in order to reinforce the sui generis character of the EU legal order. To strengthen their legitimacy as judicial body, the WTO adjudicating bodies on the other hand align themselves to other international courts by applying procedural external principles but seem rather careful to not construct internal WTO principles and use external substantive principles that would add to WTO obligations. This illustrates that judicial activism is still much more present in EU courts than it is in WTO courts.
We analyze and compare the influence of general principle in the judicial systems of the European Union (EU) and the World Trade Organization (WTO). By clearly differentiating between external and internal general principles, we demonstrate that the use of general principles by respective judiciaries under both legal regimes is dissimilar and even somewhat opposite. The Court of Justice of the EU creates and uses internal principles of EU law and tempers the use of external principles of internal law in order to reinforce the sui generis character of the EU legal order. To strengthen their legitimacy as judicial body, the WTO adjudicating bodies on the other hand align themselves to other international courts by applying procedural external principles but seem rather careful to not construct internal WTO principles and use external substantive principles that would add to WTO obligations. This illustrates that judicial activism is still much more present in EU courts than it is in WTO courts.
Number of Pages in PDF File: 32
Keywords: European Union, World Trade Organization, General principles of law, judicial activismFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2020346
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