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Introduction
Regional Economic Courts (RECs) have become involved with politically loaded legal disputes,1which touch upon central aspects of social co-existence and political governance in times of crisis and polarise the public discourse.2Recent examples of judicial involvement in these disputes include the Court of Justice of the EU (CJEU) ruling over issues of systematic erosion of the liberal state in Poland and Hungary, the Andean Tribunal of Justice (ATJ) facing systemic non-compliance triggered by the ideological schism between its neoliberal and leftist Member States, the Central American Court of Justice (CACJ) intervening in the struggles of transition to democracy experienced by many of its Member States and, finally, the East African Court of Justice (EACJ) expanding its jurisdiction to human rights through teleological interpretation. The increased involvement of RECs in these controversial matters has triggered forms and patterns of resistance to them in their contexts of operation, ranging from threats of withdrawal from a court to non-implementation of individual judgments (Madsen et al., 2018).
This paper aims to understand what happens to RECs when they rule over these divisive issues, which we label 'legal disputes mirroring constitutional, political and social crises'.3Specifically, we unveil the factors affecting the authority of and triggering resistance to RECs on this specific subject matter.
To evaluate the authority of RECs, we rely on the literature on de facto authority, according to which international courts become authoritative when their rulings are endorsed by various actors in their practices (Alter et al., 2016b). We also rely on the resistance framework to distinguish between ordinary pushback and backlash challenging the functional set-up of the courts (Madsen et al., 2018).
We focus on the CJEU, the ATJ, the CACJ and the EACJ, which have all ruled upon legal disputes polarising their regional organisations and/or the constitutional organs of their Member States. We acknowledge that resistance to RECs is not new and that, for instance, the CJEU has already faced pushback and backlash during its existence (Davies, 2014). We, however, explore the resistance triggered by the recent wave of populist politics across the globe.4We seek to understand whether and under which circumstances RECs can play a role in preserving democratic values...