Judicial boundedness, political capitulation

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Yet the DSS was in fact objectively designed as a weak judiciary and is inherently weaker than existing international judicial bodies. Nevertheless, the DSS has, in practice, been assigned by WTO Membership enhanced governance role that transcends its original design. A gap therefore exists between the structure of the DSS and its application in practice.The WTO's 'judicialized' dispute settlement system (DSS) is the source of intense political controversy. It is under attack, charged with judicial activism and with simply having been granted powers that are too extensive. Simultaneously, proponents depict it as an advanced model of international constitutional governance, and as the foundation of an evolving international structure that holds great promise.An alternative narrative of judicialization is provided, explaining the gap identified by the comparative study. A cumulation of preference patterns causes the Membership of the WTO to strategically employ the bounded DSS as a third-party rule-maker, a substitute for deliberative political decision-making---a dialectical form of governance. The problems of legitimacy are therefore rooted in the dysfunctional politic rather than the DSS; and the DSS cannot underpin a 'constitutional' construct.Both contradicting perspectives flow from a 'constitutional' narrative of international judicialization that assumes a domestically analogous 'separation-of-powers' structure and share the premise that the DSS has been constructed as an exceptionally powerful judiciary, in relation to the WTO's political elements and in comparison to earlier models of international adjudication. Some see this strength as the source of illegitimacy, others as the basis of a new constitution.The study concludes by advocating and developing an agenda for invigorating the political decision making process in the WTO while preserving and strengthening the DSS.The comparative weakness of the design of the DSS---its 'boundedness'---and the gap between design and practice are demonstrated through institutional-comparative analysis of relative judicial power, a dedicated concept developed on the basis of political science literature; it includes a tri-judiciary comparison of nine complex attributes understood as determinants of an international judiciary's relative judicial power.

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