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Published online by Cambridge University Press: 22 March 2019
This question is inextricably connected with the first one. The more you think a judge's or arbitrator's task consists in merely resolving a dispute, the more you will insist on judicial economy. The more you regard a judge as an instrument of the international community in developing international law or elucidating its concepts, the more you will favor her or his straying from what is strictly necessary to resolve the dispute. To some extent, the international judiciary serves both of these functions, which was made explicit with regard to World Trade Organization (WTO) dispute settlement in Article 3.2 of the Dispute Settlement Understanding. It obviously resolves disputes with an important role for judicial economy. But it also elucidates the concepts of international law. That function of adjudication gains some importance in international law, because it is a legal system without legislature, where pressures on legal rules can build over time and only the adjudicator can ensure that the system remains operable in a changing world, straying from the path of judicial economy.
1 Barcelona Traction, Light and Power Co., Ltd., Judgment, 1970 ICJ Rep. 3, para. 33 et seq. (Feb. 5).
2 Case 26/62, Van Gend en Loos, ECLI:EU:C:1963:1 (Ct. Just. EU 1963).
3 Pescatore, Pierre, en Loos, Van Gend, 3 February 1963 – A View from Within, in The Past and Future of EU Law 3 (Maduro, Luis Miguel Poiares Pessoa & Azoulai, Loic eds., 2010)Google Scholar.