States are increasingly delegating or transferring powers to international organizations, and international organizations are increasingly pushing the limits of the powers conferred upon them. This expansion of powers embraces all areas of international authority-particularly lawmaking and adjudication. Recognizing that international organizations have gained this greater role, scholars have begun to think more deeply about the legitimacy, accountability, and good governance of international organizations, and States (as well as non-State entities, such as the European Union and nongovernmental organizations), knowing what is at stake, have become more forthright in seeking a seat at the table.
Part I of this paper explains why effective controls are necessary for international adjudication. Part II argues that States, with minor exceptions, currently do not have effective mechanisms to control international courts once those courts have been established. Part III looks at internal control mechanisms and asks whether judges can effectively control their own interests in expanding the powers of their courts. Part IV contends that the international legal system, as it is presently constituted, is well-suited to competitive adjudication, that such competition can provide an effective judicial control mechanism, and that, on balance, this and other characteristics of competition enhance international dispute resolution. To this end, the Essay concludes with an argument against "system-protective" judicial devices such as inter-court deference, and in favor of the establishment of "competition-friendly" procedures.
Jacob Katz Cogan, Competition and Control in International Adjudication, 48 Va. J. Int'l L. 411 (2008).