Access to Justice in International Economic Law. On the Procedural Status of Private Litigants

• Applicant: Professorin Dr. Patricia Wiater
• Subject Area: Public Law
• Term: from 2020 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 445361065

The study is part of the discourse on the status of non-state actors in Public International and European Law. It closes a gap in legal-theoretical and doctrinal research, as the status and scope of a procedural autonomy of natural and legal persons on an international level has not yet been dealt with in depth.International Economic Law is a particularly suitable area of research for a comparative, historical analysis of the legal power of international individual claimants: Besides the EU, African and American systems of regional economic integration are analysed, which are hitherto largely unexplored. The analysis section of the study, dealing with individual access to justice in systems of regional economic integration, with the standing of individual claimants in the international law of the sea system as well as in international investment law, provides fundamental insights into the procedural empowerment of natural and legal persons in economic contexts worldwide.A key finding of the study is that private litigants, by virtue of their empowerment to initiate international judicial proceedings, are equipped to a very heterogeneous extent with functions that states traditionally had reserved for themselves. Notwithstanding the heterogeneity of international treaty designs, a large degree of coherence can be found in the judicial interpretation of the standing of private litigants: in the case-law, natural and legal persons are assigned a key procedural role. In particular, individual rights of action are expanded, granting private litigants the power to control state legality. The functional equivalent of extending the international standing is that one group of courts effectuates the procedural autonomy of private litigants before national courts. States react highly responsive to the different types of judicial extension of the standing of private parties. However, fundamental state setbacks, so-called "political backlashes", against the procedural key function of individual plaintiffs as developed by international courts did not materialize.-The-study-points-out-ways-in-which'a-legal-principle“of'the-"comprehensive"procedural'capacityof‘ private litigants" can be justified beyond the traditional concept of state consent: It broadens the ethical concept of “normative individualism” from a decidedly international economic law perspective taking into account that the modem international legal position of “the individual”, especially in a procedural context, may well relate to natural as well as legal persons, i.e. human.

• DFG Programme: Publication Grants