Globalizing of Administrative Law

Abstract

What if the same international trade dispute is adjudicated both in a domestic court and in an international tribunal? The conventional view – dualism – may tolerate two conflicting legal conclusions in this situation. However, in the Habermasian postnational constellation, such legal dissonance appears not only normatively troublesome but also practically taxing to global business. Against the backdrop of the recent “double remedies” dispute between the United States and China, this Article seeks to offer a modest solution to this dilemma via a discursive engagement between a domestic court and an international tribunal. The Article argues that the WTO Appellate Body qua trade law adjudicator could have employed 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 discretion over the double remedies issue to null. The Article further views that as such an engagement between a domestic court and an international tribunal, as well as the resultant discursive connection between them, matures and deepens, both courts may form a broader interpretive community, in which they can establish an identifiable pattern of common administrative law principles. This visible, and thus accessible, trans-judicial practice in overlapping issue-areas, such as trade remedy, this Article submits, is a propitious step toward the reconciliation of domestic and international administrative law, and eventually the globalizing of administrative law. The Article concludes that this diffusive and osmotic global administrative law-making process offers a novel dimension of understanding transnational-international law.