Not Quite a World without Trials: Why International Dispute Resolution Is Increasingly Judicialized

The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a court, tribunal, standing body, or panel-and voluntarily removed from the sovereign states. That development-of shifting power-is one of the amazing features of the judicialization on the international level.

Nations are now willing to grant power to third parties to make binding decisions. Second, I will highlight some differences that may begin to explain these different trends. Finally, I will argue that it is the same need for justice, voice and party control that has increasingly led to ADR in the U.S. while leading to trials on the international level.