The Judiciary’s Role in Promoting Free Trade: “A Focus on Inter-State Trade Disputes”

This article examines the critical role of judicial institutions in promoting and preserving free trade, with particular emphasis on inter-state trade disputes. Through analysis of landmark cases and jurisprudential trends across diverse jurisdictions, the article demonstrates how courts function as institutional safeguards against protectionism while balancing competing values of economic integration and regulatory autonomy.[3] The judiciary’s multifaceted contributions include dismantling trade barriers, harmonizing regulatory frameworks, establishing predictable legal environments, and enhancing the legitimacy of free trade regimes.[4] Drawing on comparative perspectives from federal systems, regional trade blocs, and international tribunals, the article illuminates the dynamic interplay between judicial reasoning and economic policy.[5] While acknowledging the substantive challenges facing judicial actors—including institutional capacity constraints, conceptual limitations, and political pressures—the analysis suggests that courts remain essential, if sometimes imperfect, guardians of open markets.[6] The article concludes that effective judicial engagement with trade disputes requires both principled legal reasoning and contextual sensitivity to the complex political economy within which free trade operates.[7] [1] Schoolar in LLM Corporate Law [2] Assistant Professor, ICFAI Law School, The ICFAI University, Dehradun [3] See, e.g., John H. Jackson, “The Role of the Judiciary in the WTO Legal Order,” 1(1) J. Int’l Econ. L. 1 (1998). [4] Peter van den Bossche & Werner Zdouc, The Law, and Policy of the World Trade Organization (4th ed., Cambridge University Press, 2017), at 101. [5] R.C. Batra, “Judicial Activism in Economic Policy: An Analysis of Trade Dispute Resolution,” 12 Ind. J. Const. L. 45 (2015). [6] Alec Stone Sweet, “Judicialization and the Construction of Governance,” 32 Comp. Pol. Stud. 147 (1999). [7] Ernst-Ulrich Petersmann, “Multilevel Governance and Judicial Protection of Free Trade,” 24 Eur. J. Int’l L. 597 (2013).