Not Quite a World Without Trials: Why International Dispute Resolution is Increasingly Judicialized

Abstract

Many scholars have made the argument that the trial is disappearing from use in the American legal system. In response to Marc Galanter's piece, A World without Trials?, this Essay argues that, in fact, the rest of the world is moving toward trials for a host of international legal disputes. What can explain this divergence? The development of ADR in the U.S. met a number of needs including saving time and money, alleviating docket overload, and giving individuals more involvement in the legal process. In the international realm, however, these needs were quite different. The judicialization of international disputes has occurred in the areas of human rights, economic and trade disputes, and border and maritime disputes. In each of these areas, the international community was willing to trade sovereignty for the development of clear, certain and enforceable rights.

In the end, the common thread linking these two seemingly contradictory trends is the question of voice and procedural justice. Many have argued that ADR provides more voice and control for parties than litigation provides. At the same time, litigation through the World Trade Organization, International Court of Justice, and international human rights courts provides voice for parties and countries that have never before been able to participate equally under traditional modes of diplomatic settlement. Both procedural trends are actually trying to accomplish the same goals for the different clients they serve.