Normative value judgments in WTO adjudication: the role of moral reasoning and intuitions in the Seals dispute

Czapnik, Benjamin Paul (2020). Normative value judgments in WTO adjudication: the role of moral reasoning and intuitions in the Seals dispute. University of Birmingham. Ph.D.

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Abstract

This dissertation uses doctrinal and socio-legal methods to analyse the Article XX necessity test in WTO law. Using case studies from Korea Beef, Brazil Tyres and Seals, it analyses the mechanisms used by adjudicators to navigate the unresolved tension in WTO law between the retained and ceded regulatory autonomy of Members.

The analysis relies on deconstruction and behavioural techniques to make broader claims about judicial decision-making. Drawing from Thaler’s work on “anomalies” in behavioural economics, the analysis looks at what the use of “double standards” can reveal about judicial decisions. I develop new techniques for distinguishing between random “double standards” in judicial reasoning and those which reflect systematic bias.

I further draw from “dual process theory” in cognitive and social psychology to assess how judges make decisions on matters where they may be unconsciously influenced by strong intuitions. I suggest that the discipline of behavioural law can identify when adjudicators are rationalising an intuitive judgment (as was the case in Seals), rather than using legal or moral reasoning to reach a decision. Finally, I investigate what the tendency for post-hoc rationalisation means for judicial decision-making and moral progress.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

Supervisor(s):