Sungjoon Cho (Chicago Kent College of Law) has posted A Trans-Judicial Dialogue and the Globalizing of Administrative Law on SSRN. Here is the abstract:
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What if the same commercial dispute is adjudicated both in a domestic court and in an international tribunal? The conventional view (dualism) may tolerate two separate legal conclusions in this situation. However, in the Habermasian postnational constellation, such legal coherence appears not only normatively troublesome but also practically taxing to the global business. Against the backdrop of the recent “double remedy” dispute between the United States and China, this Article seeks to offer a solution to this dilemma via a “trans-judicial dialogue” between a domestic court and an international tribunal. The Article argues that the WTO Appellate Body qua adjudicator can employ the same hermeneutical tool, such as “reasonableness,” adopted by the United States Court of International Trade (USCIT) when the latter reduced the Commerce Department’s alleged discretion over the double remedy issue to null. Furthermore, the Article submits that as such a dialogue matures and deepens, both courts may form some kind of interpretive community, in which they can establish an identifiable pattern of common interpretations. This visible, and thus accessible, judicial practice in an overlapping issue-area, such as trade remedy, is a propitious step toward the convergence of domestic and international administrative law and eventually the globalizing of administrative law.
