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International Review of National Courts ARTICLES BETWEEN DIALOGUE AND DECREE: INTERNATIONAL REVIEW OF NATIONAL COURTS ROBERT B. AHDIEH* Recent years have seen dramatic growth in the number of internationaltribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunalfor the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increasedopportunity for interaction between national and internationalcourts and increasedoccasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitralpanel constituted under the North American Free Trade Agree- ment found a Mississippi jury trial to have been "the antithesis of due process." Much of the interactionof courts across nationalborders-including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments-has been analyzed through the metaphor of "dialogue." As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dia- logue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraintin internationaladjudication, recent interactionsbetween international tribunals and domestic courts incorporate a significant dimension of "review" in both a literal and a figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of "power"fur- ther distinguishes emerging cases of international review from transnational dia- logue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, Loewen and similar occasionsfor internationalengagement with nationalcourts representa distinct pattern of judicial interaction,one I develop and detail as "dialectical review." * Copyright © 2004 by Robert B. Ahdieh, Associate Professor of Law, Emory Univer- sity School of Law. A.B. 1994, Princeton University; J.D. 1997, Yale Law School. I am grateful to my colleagues David Bederman, Anita Bernstein, Bill Buzbee, Marc Miller, and Robert Schapiro for their sage counsel and unfailing patience. Many thanks also to Alex Aleinikoff, Karen Alter, Jeff Atik, Vicki Been, George Bermann, Andrea Bjorklund, Jack Coe, Chip Brower, Bill Dodge, Ken Doroshow, Lee Epstein, Tom Ginsburg, Oona Hathaway, Larry Helfer, Ronnie Kann, John Orth, Kal Raustiala, Mark Rosen, Anne- Marie Slaughter, Paul Stephan, Alec Stone Sweet, Michael Van Alstine, Todd Weiler, Bert Westbrook, Keith Whittington, attendees of the Association of American Law Schools's Program on Intersystemic Adjudication and the International Law Association's session on NAFTA Chapter 11-Reflections on Law Making and Breaking, and workshop partici- pants at the University of Connecticut School of Law, for their varied assistance and encouragement. The Emory Law School library staff, the New York University Law Review editorial board, and my research assistants, finally, have been instrumental in bringing this Article to fruition. 2029 Imaged with Permission of N.Y.U. Law Review 2030 NEW YORK UNIVERSITY LAW REVIEW [Vol. 79:2029 Defined broadly as a hybrid of appellate review and dialogue, the nature of dialec- tical review can be elaborated by examining other hybrid judicial interactions- federal habeas review of state criminalconvictions and appellate courts' use of dicta as a signaling device to lower courts. In each of these cases, a form of dialectical review serves as a mechanism of legal innovation. In the face of acceleratingtrends of globalization,a pattern of dialectical review between internationaland national courts can help to facilitate the emergence, evolution, and internalization of uni- versal norms of due process. The present analysis thus offers international and domestic judges, as well as policymakers, a framework for understandingand facil- itating beneficial judicial interaction in an ever-shrinking world. INTRODUCTION .................................................. 2031 I. WHEN FREE TRADE MET Mississippi ................... 2036 II. BETWEEN HIERARCHY AND COMITY: THE NATURE OF INTERNATIONAL REVIEW OF NATIONAL COURTS ....... 2045 A. The Hierarchy of Appellate Review ................. 2045 B. Judicial Dialogue and TransnationalComity ........ 2049 III. JUDICIAL INNOVATION AND THE ENDS OF INTERNATIONAL REVIEW ............................... 2063 A. The Ends and Means of Judicial Innovation ........ 2064 B. Hybrid Judicial Interaction and the Means of Innovation .......................................... 2068 1. The Innovation of Habeas Corpus .............. 2068 2. The Signals of Appellate Dicta .................. 2072 C. The Innovation of Chapter 11 Review ............... 2077 1. The Interaction of National Courts and International Tribunals in Chapter 11 ........... 2078 2. Conflict and Innovation ......................... 2080 3. Norm Internalization or Mere Error Correction? ..................................... 2082 IV. TOWARD A HYBRID MODEL OF JUDICIAL REVIEW ..... 2086 A. The Elements of Dialectical Review ................. 2087 1. An Equipoise of Power ......................... 2088 2. Alternative Legal and Institutional Perspectives ..................................... 2095 3. Continuity of Adjudication ...................... 2097 B. Chapter 11 as Dialectical Review .................... 2101 1. The Dialectical Structure of Chapter 11 R eview .......................................... 2101 a. The Distribution of Power in Chapter 11 R eview ..................................... 2101 b. Competing and Complementary Perspectives in Chapter 11 .................. 2108 c. Continuity in Chapter 11 ................... 2110 Imaged with Permission of N.Y.U. Law Review December 2004] BETWEEN DIALOGUE AND DECREE 2. Chapter 11 and the Operation of a Dialectical Pattern of Review ............................... 2111 a. The Dialectical Dimension of Chapter 11 A rbitration ................................. 2111 b. Toward a Domestic Party to the Chapter 11 D ialectic .................................... 2120 V. DIALECTICAL INNOVATION AND INTERNATIONAL DUE PROCESS ................................................ 2123 VI. THE FUTURE OF DIALECTICAL REVIEW ................ 2139 A. The Promise of DialecticalReview in the Protection of Foreign Investment ............................... 2140 1. The Limits of Chapter 11 Continuity ............ 2140 2. Chapter 11 and Resistance to Review ........... 2143 B. National Courts and the Rising Tide of International R eview .............................................. 2147 CONCLUSION ................................................... 2161 INTRODUCTION By any standard of measurement, the trial involving O'Keefe and Loewen was a disgrace.... By any standard of evaluation, the trial judge failed to afford Loewen the process that was due. 1 In recent years, a wave of international judicialization has washed over the globe.2 Whether permanent or ad hoc, human rights oriented or commercial, international or quasi-international, such tribunals have multiplied exponentially. The collective jurisdictional reach of international tribunals has also expanded, both by design and through gradual accretions of judicial authority. 3 Unsurprisingly, the incidence 1 Loewen Group v. United States, ICSID Case No. ARB(AF)/98/3, 4 J. WORLD INVESTMENT 675, 702, 119 (NAFTA Ch. 11 Arb. Trib. 2003). Publicly released docu- ments on all North American Free Trade Agreement (NAFTA) disputes are available online at http://www.naftalaw.org. 2 See Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 VA. J. INT'L L. 675, 677-79 (2003) (noting array of new international tribu- nals formed in recent years); Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 370-73 (1997) (describing growing transnational interaction among judges and increased citation to for- eign and international sources); see also Sandra Day O'Connor, Federalism of Free Nations, in INTERNATIONAL LAW DECISIONS IN NATIONAL COURTS 13-14 (Thomas M. Franck & Gregory H. Fox eds., 1996) (acknowledging growing community of courts around globe). It bears noting at the outset that the reference to "international tribunals" herein is intended to be broadly descriptive. For purposes of the immediate analysis, it is not neces- sary to differentiate "international" tribunals from "transnational" or "supranational" ones. Nor is it necessary to draw a fine line between tribunals, courts, and arbitral bodies. 3 See Jenny S. Martinez, Towards an InternationalJudicial System, 56 STAN. L. REV. 429, 430, 436-37 (2003) (noting recent "flurry of judicialization" in which diverse interna- tional tribunals have emerged). Imaged with Permission of N.Y.U. Law Review 2032 NEW YORK UNIVERSITY LAW REVIEW [Vol. 79:2029 and extent of transnational judicial interaction-including citation of foreign decisions, negotiated divisions of judicial responsibility in complex cross-border litigation, and the enforcement of foreign judg- ments-has also grown. Much of this interaction has been explored both descriptively and normatively through the metaphor of "dialogue."'4 The characteriza- tion of transnational judicial interaction as dialogue is hardly sur- prising, given
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