A Procedural Approach to the Legitimacy of International Adjudication : Developing Standards of Participation in WTO Law

In this paper, Michael Ioannidis proposes a procedural approach to the legitimacy of international adjudication. Drawing inspiration from the practice and theory of domestic administrative law, he highlights international courts’ potential contribution in increasing the democratic qualities of decision‐making processes; in short, their process‐perfecting task. Such a kind of judicial lawmaking might be an appropriate alternative to substantive lawmaking. The well‐known decision of the Appellate Body in US‐Shrimp, Ioannidis suggests, may be read precisely in this light, obliging domestic regulators to give those affected outside their polity a meaningful say in the process of decision‐making. Instead of adding to the substance of international norms, adjudicators could develop standards ensuring that internationally important decisions are the outcome of transnational processes of a certain quality, conducted in the shadow of the court. Such a procedural approach merits renewed consideration and may inspire practice in other fields of the law