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Abstract: The question of how to produce 'global public goods' in a world of soveriegn states with divergent norms and preferences, reflecting differences in economic development levels, is increasingly on the international policy agenda. This is an issue not only for political decision-making but also for judicial interpretation of existing international agreements. This article analyzes this fundamental question in the context of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), with particular emphasis on patent protection for pharmaceutical products. The TRIPS Agreement's provisions raise concerns over at least three public (or quasi-public) goods in this area: the generation of new knowledge, the provision of public health, and the maintenance of rules fostering open trade and competition. WTO judicial panels charged with resolving disputes regarding medicines patents must determine whether to defer to national sovereignty, multilateral negotiations, or their own interpretations in balancing among these objectives. This, questions of 'who participates' and 'who decides' will be critical in this determination. The article notes structural weakness in the ability of developing countries to participate meaningfully in this process and offers suggestions for making their participation more meaningful so as to protect their interests.
WTO, TRIPS, pharmaceutical, trade, judicial interpretation, developing countries, public goods
Abstract: This article examines how the World Trade Organization addressed trade and environment issues through a political process, as opposed to the judicial one, which has been the focus of most WTO legal scholarship. It examines the operation of the WTO Committee on Trade and Environment, treating the Committee as a site to assess central concerns of governance - that is, who governs - in a globalizing economy. Northern environmental interest groups and many northern academics criticize the WTO Committee on Trade and Environment for failing to propose substantive changes to WTO law in order to grant more deference to national environmental policies having extraterritorial effects. The article, through its focus on the positions and roles of state and non-state actors, provides an empirical grounding to better assess the democratic accountability of the WTO's handling of trade-environment matters. It examines the representativeness of national trade agencies before the Committee on Trade and Environment, the impact of a sophisticated WTO international secretariat in framing debates, shaping knowledge and the appreciation of alternatives, and the role of powerful commercial interests and transnational environmental advocacy groups pressing for their conflicting goals. The basic question addressed is who is represented and how are they represented in determining law's contours through the political process at the WTO. Building from this assessment, the article concludes by examining the prospects and limits of a World Environment Organization.
Abstract: Contemporary critiques of globalization processes often focus on the potential leveling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This article, in contrast, examines the extra-jurisdictional impact of EU data protection policy on the behavior of private parties in the United States, leading to a ratcheting up of U.S. privacy standards. The article takes a socio-legal approach, exploring the many ways in which the EU Directive on the Processing of Personal Data affects U.S. practice through changing the stakes of U.S. players - including regulators, businesses, privacy advocates, lawyers and privacy service providers - and thereby changing the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, U.S. practice and international trade rules, the article finds that WTO law, rather than constraining the Directive's extra-jurisdictional impacts, provides the EU with a shield against U.S. retaliatory threats, thereby further facilitating a trading up of data privacy standards. The article concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections such as data privacy standards. These include, the desire for firms to expand their markets, subjecting themselves to foreign regulatory policy; European states' ability to enhance their bargaining power by acting collectively, using the large EU market as leverage to change foreign standards; the nature of data privacy protection as a luxury good demanded by residents of relatively wealthy, more powerful jurisdictions; the externalities of U.S. under-regulation of privacy protection, legitimizing EU intervention; and the constraints of WTO supranational trade rules on U.S. unilateral retaliatory threats. While the article focuses on the issue of data privacy, its analysis applies to broad areas of law affected by economic globalization.
Data privicy, international trade law, WTO, U.S.-EU relations, social protections, globalization
Abstract: There has been a considerable amount of legal scholarship regarding the use of "hard" and "soft" law in international governance, written from legal positivist, normative, and political economy perspectives. Hard law generally refers to legal obligations of a formally binding nature and soft law to law that is not formally binding but may nonetheless exercise significant influence on behavior. Much of this literature assesses the relative functional attributes and deficiencies of hard and soft law techniques as alternatives for international governance. This literature also often stresses how hard and soft law can be used as complementary and evolutionary means for international problem-solving to reach desired regulatory goals.
We take a different approach. First, we begin by grounding our study in a theoretical understanding of the diverse challenges confronting regulatory cooperation in a world characterized by power asymmetries, distributive conflicts, and a fragmented international legal order. Second, we focus on how hard and soft law mechanisms interact in such different contexts. Because of the existing literature's focus on how hard and soft law mechanisms lead to cooperative outcomes, much of the existing literature can be accused of selection bias. In contrast, we address the conditions under which hard and soft law are more likely to act as complements and lead to cooperative outcomes and those where they are more likely to be used as antagonists in strategic bargaining that reflects underlying disagreements among states. We examine, in particular, how the use of hard and soft law varies and leads to different outcomes when the US and EU cooperate or compete.
This paper is in four parts. Part I provides a review of the literature on hard and soft law and their relative attributes, and how hard and soft law can act as complements. Part II provides the background theoretical context for assessing the roles and interaction of hard and soft law in international regulatory governance, as alternatives, complements and antagonists, namely the role of US and EU economic and institutional power, the role of distributive conflict between the US, EU and third countries, and the challenges posed by international regime fragmentation. Part III assess how, in the presence of distributive conflicts and fragmented regime complexes, hard and soft law can just as likely act as opposing tools aimed to counter each other's influence, focusing on the dispute over genetically modified foods as an illustrative case study. Part IV then sets forth three hypotheses regarding how hard and soft law instruments interact in international governance, and, in particular, the conditions under which they work in a complementary or opposing manner.
Hard law, Soft law, Hard and soft law, International governance, International regulatory governance, Legal positivism, Political economy, International legal instruments, International law
Abstract: In 1930, during the Great Depression, Professor Karl Llewellyn declared in the Harvard Law Review that “ferment” was abroad in the land and legal scholarship, declaring “realism” a powerful scholarly force. In the past year, we have seen our own ferment: the world has shown us the folly of some of legal scholarship’s most powerful intellectual assumptions about the wisdom and rationality of markets and the inevitable failures of politics. Given current events, this article identifies and critiques an emerging body of legal theory that has dubbed itself “new legal realism.” Over 280 articles have already used this moniker. This article surveys and analyzes this scholarship, arguing that “new legal realism” is responding to a shared concept of a “new formalism” - neoclassical law and economics. New legal realists are not anti-economics (some of them are economists themselves), but they are challenging the new formalism’s assumptions about the state, the individual, and legal theory. The article identifies four central attributes for a new legal realism - empirical study, institutional analysis, philosophical pragmatism and critical reflexivity. It critiques various forms of new legal realist scholarship, from behavioral economics to legal empiricism, and offers suggestions about future directions for a legal theory more capable of addressing our vulnerable national order, including the possibility of new “emergent” legal analytics, replacing or complementing functionalism with participation-centered concepts, recognizing human vulnerability rather than assuming autonomy, moving beyond the old law/politics divide, theorizing doctrine as semi-autonomous and mediated by institutions, and recognizing that the pursuit of all goals and values is transformed by institutions with their own reflexive processes - in sum, building mediating theory that emerges recursively from empirical study and practice.
legal realism, legal theory, behavioral law and economics, institutionalism, contextualism
Abstract: Although developing countries vary significantly in terms of trading profiles, they generally face three primary challenges if they are to participate effectively in the WTO dispute settlement system. These challenges are: (i) a relative lack of legal expertise in WTO law; (ii) constrained financial resources, including for the hiring of outside counsel; and (iii) fear of political and economic pressure. We can roughly categorize these challenges as constraints of law, money and politics. This article explores various strategies for responding to these challenges, none of which involves a modification of the rules of the WTO's Dispute Settlement Understanding.
Abstract: The growing role of law in international economic relations is abetted by the blurring of the public and the private. International trade law, while formally a domain of public international law, profits and prejudices private parties. Private parties, in particular well-connected, wealthier and better-organized ones, attempt to use the World Trade Organization's legal system to advance their commercial ambitions. A more effective WTO public law spurs US and European private legal strategies, which reciprocally yield further WTO public law. The manuscript demonstrates how public authorities and private firms have complementary, though not identical, goals in challenging trade barriers. They form ad hoc public-private partnerships to advance their aims. This growing interaction between private enterprises and public officials in the bringing of trade claims reflects a trend from predominantly intergovernmental decision-making toward multilevel private litigation strategies. The manuscript evaluates the use of various mechanisms in the United States and the European Union through which private firms and governmental authorities collaborate to challenge foreign trade barriers. The manuscript assesses the historical, political, economic and cultural reasons for a more proactive role of US business in international trade disputes, as well as some trends in the EU toward US-style practice. The manuscript examines the implications of these public-private trade litigation networks for the stability of US-EU relations and the effectiveness and equity of the WTO judicial system. In contrast to much of international law scholarship, this manuscript takes a socio-legal, actor-centric approach. In a legal realist tradition, it evaluates the legalization of the international trading system in terms of its effects on private behavior, as opposed to its formal rules and judicial decisions. The manuscript builds on over one hundred interviews with former and current officials at the Office of the United States Trade Representative, other US agencies, the European Commission, EU member states, representative of US and EU business trade associations and private lawyers based in Washington and Brussels.
International trade law, litigation, public, private, WTO, US-EU relations
Abstract: This article is in four parts. Part I sets forth the competing (and sometimes conflicting) rationales for WTO trade-related capacity building and technical assistance efforts. These competing rationales have led to contention over how the funding is used. Part II addresses the political and operational constraints on the secretariat's implementation of a meaningful WTO capacity building program. Part III provides historical background to, and a summary of, the WTO's technical assistance and capacity building initiatives and some of the criticisms that they have generated. Part IV concludes by suggesting how developing countries, donors, and the WTO secretariat could build from current initiatives, while noting the challenges posed.
WTO, Technical, Assistance, Capacity, Building, Serve, Developing, Countries
Abstract: This article addresses the interaction of hard and soft law in a fragmented international law system. This issue is increasingly important in a world where functional international regimes proliferate to address globalization and national interdependence without any overarching legal hierarchy. The article makes three core claims in contradistinction to the existing literature. The first and primary claim is that international hard and soft law instruments can serve not only as alternatives or complements, but also as antagonists in many situations. The second, related claim is that this interaction has particular implications in a fragmented international law system, affecting the very nature of international hard and soft law regimes and their purported advantages. The interaction of hard and soft law regimes can lead to the hardening of soft law regimes, resulting in more strategic bargaining and reducing their purported advantages of consensus-building through information-sharing and persuasion; and it can lead to the softening of hard law regimes, resulting in reduced legal certainty and predictability, especially where there is distributive conflict between powerful states. The third and final claim is that the interaction of hard and soft law is not a binary either/or question, but one of specifying the conditions under which we can expect actors to employ hard and soft law as alternatives, complements or antagonists. The existing literature is not wrong in focusing on how hard and soft law may be employed as complements, but this literature tells only part of the story. The article provides an overarching theoretical framework for understanding the conditions under which states and other actors choose to employ hard and soft law in different ways, emphasizing the importance of distributive conflict among countries and their constituencies and the rise of regime complexes as conditions favorable to the use of hard and soft law as antagonists.
hard and soft law, power and international law, WTO, dispute settlement, prisoners dilemma
Abstract: This Article aims to advance our understanding of three sets of interrelated questions: who shapes international trade law through litigation and bargaining; how do they do so; and what broader effects do international trade law and judicialization have within a country. The Article builds from four years of empirical investigation of international trade dispute settlement and its impact in Brazil. Its point of entry is an examination of what lies behind Brazil's use of the legal regime of the World Trade Organization (WTO), including in litigation, negotiations and ad hoc bargaining. We assess how the WTO legal regime has affected Brazil's national administration and Brazilian government-business-civil society relations regarding international trade policy and dispute settlement. In turn, we depict the strategies that Brazilian public and private actors have adopted to deploy and shape this very international legal process. We thus aim to show how these national and international processes are reciprocally and dynamically interrelated. We conclude by drawing out seven findings from our study. We address, in particular, how international trade law and judicialization can unleash a competition for expertise which transforms a government's relation with business and civil society over international trade policy. We contend that the process of catalyzing change within a country is not automatic, but depends on key domestic factors as variables. We find that the resulting dynamic can strengthen the state's ability to engage effectively at the international level. We find that the best interpretation of what lies behind Brazil's success is the rise of pluralist interaction between the private sector, civil society and the government on trade matters. This public-private exchange is spurred by the institutionalization of a more legalized and judicialized system for international trade relations in the broader context of Brazilian democratization and global economic integration. As WTO institutions have developed, individuals and groups in Brazil have responded by investing in expertise to take advantage of the opportunities offered and to defend against the challenges posed. The resulting public-private partnerships have significantly enhanced Brazil's ability to advance its interests in international trade negotiations and dispute settlement, and, in the process, have an impact on the WTO regime.
Abstract: Mutual recognition regimes set the conditions governing the recognition of the validity of foreign laws, regulations, standards, and certification procedures among states in order to assure host country regulatory officials and citizens that the application of foreign rules within their borders is "compatible" with their own. They thus are always "managed" and differ from a pure "free trade" model by involving a (often highly) political process of assessment of mutual compatibility between national systems of governance. The paper addresses the relationship of mutual recognition with the principles of extraterritoriality, national treatment, and harmonization. It assesses the factors that explain the rise and operation of mutual recognition regimes and their constraints. It examines these regimes from the normative perspectives of administrative accountability, private rights, and democratic legitimacy, and in relation to concerns about power asymmetries. It concludes by showing how mutual recognition regimes provide a lens for assessing the overall global administrative law project.
Abstract: There is a recursive relationship between the judicialization of international trade relations and the development of public-private partnerships in the EU to address international trade claims. The more legalized international trading system creates stronger incentives for well-placed private actors to engage public legal processes. At the same time, to litigate effectively in the WTO system, government officials need the specific information that businesses and their legal representatives can provide. Officials therefore strive to establish better working relations with industry on trade matters. As a result, the EU's decision-making process for the investigation, litigation and settlement of trade claims has become a dynamic, ad hoc, hybrid, multi-tiered process in which private interests are deeply implicated. The process is neither purely intergovernmental nor purely private, but rather involves public-private networks operating in the shadow of international trade law. The process changes and adapts through trial and error.
Abstract: Empirical work in international law is rapidly increasing in quantity and sophistication. This trend reflects the expansion in number and importance of international organizations and courts, as well as developments in legal scholarship and the social sciences. This bibliographical essay forms the basis for a forthcoming chapter in the Oxford Handbook on Empirical Legal Studies (forthcoming 2010). It surveys empirical work on international tribunals, treaties and many substantive areas of law. Some of these areas, such as trade, investment and human rights, are the subject of burgeoning empirical literatures. Others, particularly private international law, have received less attention to date, but good work is beginning to emerge, as is the case with criminal law and investment law. We see the field continuing to expand and diversify in years to come, as many outstanding questions beg for analysis.
empirical studies, international law
Abstract: The regulation of agricultural biotechnology (the use of genetically modified organisms, GMOs) is of great importance. Opponents maintain that it can irreparably harm the environment and threaten human health. Supporters contend that it can significantly increase food yields and enhance nutrition in a world where almost a billion people go hungry every day. Disputes over this technology threaten to trigger a trade war among the world's two economic powers, the United States and European Union, posing risks to the global economy and international relations. The World Trade Organization (WTO) provides a legal forum that addresses these politically-charged conflicts, but it suffers from challenges to its legitimacy. Grounding itself in this regulatory conflict, this Article puts forward and applies a theoretical framework for understanding what international courts dom that of comparative institutional analysis. Comparative institutional analysis assesses the impacts of judicial interpretive choices in terms of their structural allocation of power to alternative institutions. The Article demonstrates how WTO judicial interpretive choices allocate institutional authority for addressing policy concerns to alternative institutional processes, including the market, political and administrative processes, and courts, at different levels of social organization, from the local to the global. These choices are particularly important in a pluralist world involving constituencies with different interests, priorities, perceptions and abilities to be heard. This theoretical framework is essential from a positive perspective (for understanding the structural role that judicial decisions play), and from a normative one (for evaluating institutional alternatives). From a normative perspective, the Article demonstrates that we cannot meaningfully assess the attributes and deficiencies of one institutional process - beset by resource, informational and other asymmetries - without comparing it with other institutions that may be subject to similar (but never identical) dynamics. Each institutional decision-making process has its attributes and deficiencies in terms of the dynamics of participation within it, ultimately affecting who decides. From a structural perspective, the focus shifts from the question of what is being interpreted to the question of who is determining it. The Article shows how the WTO judicial process effectively allocates power from one institution to another, thus affecting who participates and how they participate in deciding which substantive goal(s) to pursue. By shifting authority among institutional alternatives, the WTO judicial process alters relations between who decides and affected publics. The Article first lays out the comparative institutional analytic framework in relation to other leading approaches applied in the legal academy and in particular those of global constitutionalism, global pluralism/conflicts of laws, and global administrative law. It then demonstrates how to apply the framework through the WTO dispute over the regulation of GMOs.
International, International Economic Law, International Law, Transatlantic Relations, Comparative Law, Law & Society
Abstract: The introduction to this edited conference volume probes beneath transatlantic political conflicts to assess the health of the transatlantic economic relationship and of the networks of regulatory cooperation established during the 1990s. It focuses our attention on the largely underappreciated economic side of the transatlantic relationship, and covers an array of sectors. The contributors include leading academics and policy makers from both sides of the Atlantic. We highlight three primary findings that emerge from the chapters. First, despite the concerns, transatlantic foreign policy rifts did not spill over into the economic realm or trigger economic backlash of any significance. Rather, the bulk of the evidence presented in this volume points to the continuity in the transatlantic economic relationship and the resilience of the transatlantic economic marketplace in a period of political turmoil. As Joseph Quinlan and Daniel Hamilton show in chapter 2, transatlantic trade and foreign direct investment have actually flourished in recent years, notwithstanding the bitter conflict over Iraq. As they conclude, "No other commercial artery in the world is as integrated and fused together by foreign investment, a fact lost on many pundits, parliamentarians and policy makers on both sides of the Atlantic." Similarly, Bruce Stokes (in chapter 3) maintains that trade relations during the first term of the Bush administration did not substantially differ from the Clinton years. Second, the chapters present dramatic differences in the degree of success (or failure) of transatlantic cooperation across regulatory areas. In some areas, such as competition policy, US and EU regulators continue to hold broadly similar mandates and regulatory philosophies (chapter 4). The record of transatlantic cooperation in this area continues to be largely complementary, based on the sharing of information and resources. Occasional disagreements, such as the Commission's rejection of the GE/Honeywell merger, may be spotlighted in the media, but they are atypical (chapter 5). In other areas, however, such as the regulation of genetically modified organisms (GMOs), US and EU regulators operate with starkly different regulatory philosophies and styles in a highly politicized policy environment (chapter 8). The volume's third finding is that changes in institutional and market power have shaped policy outcomes in distinct regulatory areas. Assessments of power have been relatively absent from previous studies of transatlantic economic relations. Previous studies have tended to emphasize the impact of economic globalization on the demand and supply of regulatory collaboration, and depicted the EU/US relationship as one of economic equals. Yet across the range of issues, the success of transatlantic cooperation, and the pattern of concessions by each side, has reflected varying power resources. These resources are not military ones, nor do they simply reflect market size, a traditional measure of economic clout. Although market size generally explains the growing role of the EU as a global actor in economic and regulatory fields, US and EU bargaining power also is affected by each side's institutional characteristics. In the case of financial services, for example, Posner maintains that it was not simply the size of the EU market, but also the establishment of the EU's regulatory competence and its extraterritorial reach which mattered. Institutional developments in the EU affected powerful US firms who, in turn, motivated the US Securities and Exchange Commission to work with EU authorities to accommodate and recognize EU standards in a number of areas.
International, International Law, International Economic Law, Transatlantic Relations, Comparative Law, Law & Society
Abstract: This chapter examines the barriers posed for smaller and poorer World Trade Organization (WTO) members to challenge trade barriers under the WTO's dispute settlement understanding. It first addresses the implications of the judicialization of the WTO's dispute settlement system. It next examines reasons why participation in the WTO's dispute settlement system matters. It then summarizes the results of studies of the system's use and, in light of these findings, posits explanations for smaller developing countries' lack of engagement.
WTO dispute settlement, developing countries, legal capacity, judicialization, implementation periods, aggregate stakes, participation, systemic effects, terms of trade, bargaining, legal shadow, litigation, enforcement, balance of power, legal consciousness, institutional bias, rule of law
Abstract: This paper, for the Oxford Handbook of Business and Government, addresses the mechanisms through which business shapes law. There are two main ways in which business does so. First, business has advantages before the different public institutions that make and apply law, be they legislatures, administrative bureaucracies or courts. Second, business creates its own private legal systems, including what is traditionally referred to as lex mercatoria (or private merchant law), and private institutions to enforce it (such as arbitral bodies). These two sources of law, publicly-made and privately-made law, interact dynamically. The reciprocal interaction of public and private legal systems constitutes the legal field in which economic activity takes place. Part I of the paper addresses business’ role in shaping law through public institutions. Part II addresses business’ creation of private legal rules and institutions. Part III examines how public and private legal systems interact, and, in particular, how private business-made law and business practice affect publicly-made law over time. Although Parts I-III focus on the relationship of law and business in the United States, the chapter’s aim is to provide a general framework for analysis which builds from existing theoretical and empirical work in discrete areas. Part IV addresses the interaction of business and law in comparative and global context. It shows how, on the one hand, much of international business law has developed in response to business demands and practices, in the process affecting national law. On the other hand, it explains why national law and legal practice nonetheless retain significant variation in reflection of local interests, institutional structures, and business and legal cultures.
law, business, law and society, comparative law, private legal systems, administrative law
Abstract: Much legal scholarship addresses law in terms of norms and incentives that affect business and individual behavior. This Essay reverses the telescope and addresses the mechanisms through which business shapes law. There are two main ways in which business affects law. First, business influences the public institutions (legislatures, administrative bodies and courts) that make and apply law. Second, business creates its own private legal systems, including what is traditionally referred to as lex mercatoria (or private merchant law) and private institutions to enforce it (such as arbitral bodies). These two sources of law, publicly-made and privately-made, interact reciprocally and dynamically. The Essay provides a socio-legal framework for analyzing business’s interactional relationship with law. The Essay argues that to assess the relation of business to law, we must look at three sets of institutional interactions: the interaction among public institutions (legislative, administrative and judicial processes), in each of which business plays a critical role; the interaction of national and transnational institutional processes; and the interaction among these public institutional processes and parallel private rule-making, administrative and dispute settlement mechanisms that business creates. The dynamic, reciprocal interaction of public and private legal systems constitutes the legal field in which economic activity takes place. It is a particularly important time to engage in such analysis in light of the proliferation of privately-made legal systems, including transnational ones, affecting our very concept of law.
Abstract: This paper provides a typology and brief assessment of four varieties of international law scholarship: formalist/doctrinal, normative/activist, theoretical/analytical, and empirical. It then develops an argument about the particular importance of empirical work from a "new legal realist" orientation. The paper contends that the distinctive features of a new legal realist approach are its commitment to empirical work, in particular of a qualitative nature, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. This translation takes two forms. The paper situates "new legal realism" in relation to the original legal realist movement in the United States. A larger work-in-progress addresses its relation to the predominant theoretical perspectives on international law that have emerged.
International, International Economic Law, International Law, Transatlantic Relations, Comparative Law; Law & Society
Abstract: This paper for the Oxford Handbook of Empirical Legal Studies (forthcoming 2010) assesses what empirical research shows in response to three questions concerning international law: (i) why international law is produced and invoked; (ii) how international law is produced; and (iii) how and under what conditions international law matters. We assess variation in response to these questions across different areas of international law, since different actors and institutions are present, and distinct processes and mechanisms are used in such areas as international human rights, criminal, trade, investment, and regulatory law. For each of these questions, we contend that understanding state behavior requires “unpacking” the state and exploring variation at the national and subnational level. We find that most empirical work indicates that international law’s impact varies in light of such factors as the situation of the state in question (including its regime type and level of wealth); the congruity of the issue with domestic political contests; and the role of intermediaries such as government elites or civil society in conveying international law norms into domestic systems.
Abstract: The WTO case EC-Conditions for the Granting of Tariff Preferences to Developing Countries involved a challenge by India of special tariff preferences granted by the European Community (EC) to twelve developing countries in order to combat drug production and trafficking (the Drug Arrangements), resulting in decisions of a judicial panel and the Appellate Body of the World Trade Organization (WTO). After providing background to the dispute and examining key ambiguities in the legal texts, we focus on three aspects of the interpretive context that are of broader concern and which have not previously been developed: first, the normative framing and how that frame may elide the larger historical and political contexts of colonialism and asymmetric power in international economic relations (sections II and III); second, the institutional choices faced by the WTO judicial decision-makers when deciding over conditions for preferences, and the implications of these choices for participation in political, judicial and market decision-making (sections IV and V); and third, the potential shaping of judicial interpretation in response to commentary from an interpretive legal community that comes predominately from North America and Europe (section VI). However hyper-technical and brilliantly legalistic our reasoning may be, our interpretation of the ambiguities of the relevant legal texts will inevitably be affected by our backgrounds and normative approaches. Our backgrounds and normative inclinations affect the framing and understanding of a case in which a WTO judicial body exercises significant power.
international law, international trade, institutional choice, trade preferences
Abstract: A central goal in governing the interface of the economies of the United States and European Community (EC) is to reconcile the objectives of protective social regulation, on the one hand, and free competition facilitated through open trade policies, on the other. These policies can be both complementary and conflicted. This paper examines how these issues have been addressed bilaterally in a number of economic sectors through mutual recognition agreements and a hybrid form, the safe harbor principles on data privacy protection. The paper provides an overview and analysis of the 1997 Mutual Recognition Agreement and its six sectoral annexes, and the 2000 agreement on Safe Harbor Principles (for data privacy protection). The paper assesses what spurred these agreements, which actors participated in their negotiation, what constrains their implementation (in terms of both political and market forces), and, ultimately, what are the prospects and limits for their adoption in other areas. Although neither of these agreements directly prescribe harmonization of U.S. and EC laws or regulatory approaches, they have led to some de facto harmonization by regulatory authorities and firms. The paper concludes that, overall, transatlantic institutional adaptation has been slow (and often creeping), but where it has occurred, it has been rather unidirectional, and will likely continue to be so. Simply stated, the United States has made most of the changes, whether through adoption of international standards that mirror EC ones, through delegation of testing and certification responsibilities to private laboratories reflecting the EC's global approach, or through coordination and oversight of these laboratories under a new U.S. national program analogous to those operating in the EC for over a decade.
Abstract: In this inaugural lecture for Professor Shaffer's Melvin C. Steen Professorship, he provides a typology and assessment of four varieties of international law scholarship: formalist, normative, theoretical and empirical. He shows why there is great need for empirical "law-in-action studies" of international law in a new legal realist vein. The purpose of engaging in research in a new legal realist vein is to uncover issues to which otherwise we are ignorant, to which otherwise we are blind. The purpose is to engage in a method which permits one's incoming predispositions (inevitable no matter how neutral one tries to be) to be challenged and transformed. This is particularly important in a world characterized by constituencies with differing priorities, perspectives and opportunities to be heard. The distinctive features of a new legal realist approach are its commitment to empirical work, including the use of qualitative methods, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. The lecture situates "new legal realism" in relation to the original legal realist movement in the United States and our current historic context. It provides numerous research examples of what a new legal realist approach offers.
Legal realism, international law
Abstract: This paper makes three central points. First, it charts the myriad ways in which the United States, the European Community, and influential constituencies within them advance their interests through the World Trade Organization (WTO). They predominate because they wield considerable material and ideational resources that provide them with advantages in economic relations in any institutional context. Second, the paper shows how WTO judicial bodies, as any court, exercise power when they decide legal cases. Because WTO rules are not fixed in meaning, their application requires WTO judicial bodies to make institutional choices. These institutional choices result in the effective allocation of decision-making authority to alternative institutional processes. To understand the operation of WTO judicial power, we thus need to examine how choices over the application of WTO rules differentially shape opportunities for states and their constituents in the market and in domestic and international political processes. In short, the paper adopts an institutional perspective for assessing law's power, differing from (and complementing) perspectives that focus on legal discourse and legitimization processes.
Third, the paper raises broader questions about the analysis of power and global governance. The paper contends that, since all institutional processes are characterized by bias, institutional analysis - whether conducted from a normative or strategic perspective - should be comparative, the key question being how parties participate, or otherwise are represented, in an institutional context in comparison with its alternatives. As the paper shows, because of the open-ended nature of WTO rules, the WTO Appellate Body itself can engage in comparative institutional analysis and consider institutional alternatives in terms of their relative biases. The issue is not whether biases exist (they exist in all institutional contexts), but rather, what are the effects of an institutional process on participation in the weighing of competing concerns compared to its non-idealized institutional alternatives. The paper demonstrates the effects of institutional choice through its assessment of one of the WTO Appellate Body's most controversial decisions, one which has been referred to as a constitutional-like case for the WTO and global governance - the United States shrimp-turtle case. The case involved the interaction of domestic and international trade, environmental, and development concerns.
power, governance, WTO, comparative institutional analysis
Abstract: This essay addresses the role of the WTO Director-General and secretariat from a political economy perspective, examining the activities of the WTO Director-General and Secretariat in light of the divergent concerns of, and constraints placed by, the WTO=s different members, from the United States and European Community to smaller developing countries. Larger and wealthier WTO members feel that an enlarged secretariat will not serve their interests because it will be harder to oversee and control. There are indeed reasons that developing countries might favor a larger and more independent secretariat. Many of these countries lack internal trade law expertise and, since most of them are small and poor, there are greater opportunity costs for them to develop internal expertise in WTO matters in light of other demands. In the dispute settlement context, in particular, developing countries could benefit from greater assistance from the secretariat. Yet developing countries are also wary of a larger more proactive secretariat because of their concern about systemic (and perhaps unconscious) pressure on the secretariat to accommodate the interests of the WTO's most important trading members. The essay provides examples of these concerns. It concludes that, although there are reasons to favor enhancing an independent role for the WTO secretariat, at least incrementally, significant checks on such a development remain on account of the WTO's more politically sensitive policy coverage, its more prominent public profile, and ongoing challenges to the legitimacy of its decisions.
International Trade
Abstract: This essay examines the EC-Sardines case before the WTO dispute settlement system, in which a developing country, Peru, won a significant victory in WTO dispute settlement against the much more formidable legal services of the EC, in a case challenging an EC regulation that maintained that only a species caught in European territorial waters could be marketed in the EC under the name "sardines." The case was important for three reasons. To start, it is the first time that a WTO panel has found a WTO member to be in violation of its obligations under the WTO Agreement on Technical Barriers to Trade. Second, the ruling shows the importance of Codex Alimentarius harmonized standards in WTO disputes. Third, the case demonstrates how even a small developing country such as Peru, with the help of the new Advisory Centre on WTO Law, can prevail against a great power in WTO litigation. Fourth, the case exhibits how, in certain circumstances, and despite some developing countries' fears, a more transparent WTO dispute settlement system can work to developing countries' advantage when they are able to work in coordination with consumer-based northern NGOs.
Abstract: The current dispute settlement system of the World Trade Organization (WTO) creates a particular challenge for small WTO Members with limited exports since litigation costs are more or less independent of the commercial stakes involved in a dispute. Small Members may therefore find it too costly to pursue legitimate claims. Reviewing the aims and practices of small claims procedures at the national level, we analyse whether a similar institution could be introduced at the WTO. While a strong empirical case can be made for such an institution, the legal and political challenges should not be underestimated. Indeed, can we at all define a 'small claim' in a meaningful way in a context where government policies are being disputed? Can such disputes ever be 'small' no matter the monetary value? And can we really expect a government to honour a ruling by an international small claims panel with no possibility of appeal? The answer is seemingly no on all three accounts and we have to think creatively if such an institution is to be adapted to the context of the WTO. One possibility entertained in this paper would be to limit the eligibility to cases where a WTO precedent already has been clearly established. If the small claims panel finds that the law is unclear and the precedent insufficient, the case would be transferred to the regular panel system. As an additional political safeguard, monetary damages (up to the threshold for small claims) could be considered as an alternative to compliance, so that there would be no expectation or requirement that a government must change its policy following a ruling of a small claims panel. Finally, given that a primary rationale for the procedure would be to address the challenges faced by lesser developed countries, WTO Members may wish to consider limiting availability of such procedure, as done in some national systems. Otherwise, the procedure might be used in practice primarily by larger, well-resourced countries for small claims against smaller, less well-resourced ones, replicating experiences with small claims procedures in some national systems. If use is to be restricted, WTO Members would have to determine which Members could use such procedures. This paper does not intend to propose a specific model, but rather to explore the rationale for such a procedure and its possible contours in order to provoke further discussion of this issue, as well as related ones regarding alternative means to facilitate access to the system.
Part I provides an introduction to the issues. Part II builds a prima facie case for a WTO small claims procedure based on three premises. First, trade stakes vary across the Members of the WTO. Second, claims involving smaller trade stakes are not offset by smaller litigation costs or a reduced need for domestic WTO legal expertise. Third, the alternative dispute resolution tracks provided by the DSU today do not substitute for small claims procedures. Part III briefly examines the experiences with small claims procedures at the national and EU levels, and then identifies ways to address some of the specific challenges posed in the WTO context. The paper concludes by acknowledging arguments against creating such a procedure while contending that institutional design choices ultimately must weigh the relative costs and benefits of available alternatives.
Abstract: This article makes four primary points regarding the issue of parliamentary oversight of WTO rule-making. First, we need a conceptual framework to assess the tradeoffs between different mechanisms for ensuring oversight, including parliamentary oversight, of the WTO. No institutional mechanism is perfect. All proposed mechanisms should be assessed in terms of how well they permit parties to participate in decision-making that affects them in a relatively unbiased manner compared to other realistic, non-idealized institutional alternatives. This analytical framework can be termed "comparative institutional analysis."
Abstract: In this paper, we examine and bring up-to-date the story of the US/EU conflict over the regulation of agricultural biotechnology. The paper is organized in six sections. In the first section, we outline briefly the respective regulatory systems put in place during the 1980s and 1990s by the US and the European Union, and we trace the emergence of the transatlantic regulatory dispute over GMOs. In the second section, we briefly examine the record of bilateral regulatory cooperation, including informal discussions among regulators, a formal Biotechnology Consultative Forum, and the activities of the transatlantic civil-society dialogues, all undertaken in an effort to find common - or at least compatible - grounds for biotech regulation. Third, we look to the various multilateral forums - the World Trade Organization, the Biosafety Protocol signed at Cartagena in 1999, and the Codex Alimentarius Commission - noting that the US and EU have attempted systematically to export their respective regulatory approaches to biotechnology in all three forums; the net effect of these efforts to date, however, has been to restate rather than resolve the fundamental conflict of regulatory approaches. In the fourth section, we turn back to the domestic level, examining the recent legislative and regulatory developments in the US and the EU, which we argue have produced, at best, modest evidence of convergence between the two systems. In both cases, however, the respective regulatory principles and procedures of the US and the EU have remained largely unchanged and starkly different. In light of these persistent differences, in May 2003 the United States brought a formal complaint before the World Trade Organization, examined in section 5 of the paper. A sixth and final section concludes by arguing that, despite initial hopes, both bilateral and multilateral negotiations between the US and the EU have yielded little evidence of genuine deliberation or convergence, and that, despite obvious risks, the current WTO complaint offers the prospect of clarification and legal certainty for parties on both sides of the dispute. While EU observers in particular have expressed optimism regarding deliberative approaches to public policy-making, most theoretical accounts of deliberative decision-making concede that genuine deliberation is most likely under certain scope conditions, including depoliticized and often in camera settings, where state representatives enter discussions in a mutual search for truth. By contrast, the regulation of GMOs is a highly politicized issue-area in which US and EU representatives negotiate in the light of strongly mobilized domestic opinion, and in which the negotiators themselves often believe strongly in the superiority of their own regulatory system. In Thomas Risse's (2000) language, these conditions are far more conducive to bargaining than to arguing (deliberation). The three multilateral negotiations examined in part 3 of this paper - namely the early WTO discussions, the Biosafety Protocol, and the Codex Alimentarius Commission - were all textbook cases of arguing, with both sides seeking to negotiate on the basis of fixed positions and both jockeying for advantage by exporting their preferred models to the global stage and thereby influence the outcome of future negotiations or litigation. In the absence of any meaningful deliberation, however, each of these forums has thus far yielded little clarification but rather inelegant compromises that obscure rather than clarify the nature of the differences in question. Against this backdrop, we find that the US complaint before the WTO Dispute Settlement Body presents significant risk of backlash against GMOs or the WTO, or both - risks of which we have warned at length. Yet the US case also holds the promise of clarification and legal certainty that nearly a decade of bilateral and multilateral negotiation has failed to produce. As we have seen, previous WTO rulings (most notably in the beef-hormones case) have already clarified the obligations of all parties in undertaking risk regulation, with particularly evident effects on the regulatory processes of the European Union. In a similar fashion, the legal setting of the Dispute Settlement Body has already forced both sides in the current dispute to argue their respective cases in the language of international law. Should the WTO panel (and, in all likelihood, the Appellate Body) produce a ruling that provides clarity about the obligations of each side without provoking a backlash in domestic public opinion and calling into question the legitimacy of the WTO itself, then the significant gamble of bringing a WTO complaint may well have paid off.
Abstract: Scholars continue to debate over the aim of WTO remedies in light of the ambiguity of the legal texts. One method of discerning the purpose of WTO remedies is by examining Members' practice, constituting the law-in-action of WTO remedies. This chapter's assessment of current practice leads to five interrelated findings: (1) the process for applying an authorized WTO remedy is driven primarily by domestic export interests demanding compliance, not rebalancing; (2) complainant government practice has responded accordingly, focusing on compliance; (3) governments have done so by strategically targeting politically-influential foreign export interests, as opposed to politically influential domestic protectionist interests, while attempting to minimize harm to domestic consumers and consuming industries; (4) constituencies within the complainant Member who fear that their products may be on a retaliation list (that is, importers and import-consuming industries) have been catalyzed to lobby to exempt goods from the retaliation list, apparently more so than producers who would benefit from rebalancing through the imposition of protective tariffs; and (5) overall, Members have not implemented retaliatory countermeasures as frequently as would be predicted were the primary goal rebalancing. Our findings raise the prospect that WTO Member practices could have systemic impacts within the WTO over time. If the ministries representing WTO Members perceive that the objective of WTO remedies is compliance, then such beliefs could affect formal law over time, whether through the negotiation of new legal texts or the interpretation of existing ones. In any case, Members' practices constitute the WTO law-in-action, that is, how formal WTO remedies are actually applied.
WTO dispute settlement, remedies, retaliation, rebalancing, inducing compliance, litigation, enforcement, law-in-action
Abstract: Does legal capacity matter in the World Trade Organization (WTO)? The conventional wisdom is that the right perseveres over might under the WTO's more legalistic dispute settlement system. Yet, others stress that members can only take advantage of the rule of law if they have the resources to protect their rights through litigation. Despite all the interest in this topic, there is virtually no empirical evidence about how legal capacity affects patterns of litigation and import protection. Using an original survey of WTO delegations, we construct a novel index of legal capacity, and include this in a study of 1321 antidumping (AD) investigations between 1995 and 2005 by 17 WTO Members against firms located in 33 countries. We hypothesize that Members with more legal capacity are more likely to challenge AD suits brought against them at the WTO, and less likely to be named in AD petitions in the first place. The results strongly bear out our expectations; legal capacity matters.
International, International Economic Law, International Law, Transatlantic Relations, Comparative law, Law & Society
Abstract: Previous studies of WTO dispute settlement have sought to evaluate whether a Member’s legal capacity influences its odds of bringing litigation before the multilateral trade regime. Because direct measures of legal capacity are elusive, these studies have had to use indirect proxies, such as per capita income or number of delegates in Geneva. Yet, the reliability of these measures is questionable. To gauge legal capacity more directly, we surveyed all WTO Members, posing questions concerning their professional staff; bureaucratic organization at home; bureaucratic organization in Geneva; experience handling general WTO matters; and involvement in WTO litigation. Using responses from this survey, we constructed an index of Members’ WTO legal capacity that speaks more fully to the challenges of dispute settlement than do commonly used proxies, none of which are strongly correlated with our measure. We supplemented this survey with over three dozen semi-structured interviews with Members’ representatives in Geneva, the results of which bear out the importance of properly measuring legal capacity.
legal capacity, power and international law, WTO, dispute settlement
Abstract: While scores of commentators have criticized the non-transparency of the World Trade Organization (WTO) in their examination of blue (trade-labor) and green (trade-environment) issues, they have often ignored the linkage between domestic politics in powerful states and international trade measures. They blur this crucial linkage that exacerbates conflicts and scuttles them to the WTO. Yet it is this underlying domestic-international, two-level game that also needs to be made more transparent, since its examination demonstrates that it is this nexus that gives rise to many trade-environment and trade-labor conflicts between countries.
Abstract: This paper introduces a symposium issue on WTO law in a fragmented, decentralized international legal order, resulting from a conference which was held at Loyola University School of Law on February 15, 2008, and was co-sponsored by the American Society of International Law. The introduction introduces the five papers published in the issue by Padideh Ala’i, Raj Bhala, Tomer Broude, Jeffrey Dunoff, Merit Janow, and Ernst-Ulrich Petersmann. The conference assessed the place of WTO law in a fragmented, decentralized legal order, examining on the one hand its relation to other international law, and on the other its relation to national law. That is, the papers examine WTO law in its vertical and its horizontal dimensions in terms of the allocation of authority, legitimacy and impact. The conference was organized into four sessions, complemented by a keynote address from Merit Janow on her reflections as a member of the WTO Appellate Body. Collectively, the articles in this issue demonstrate how the study of the interaction between the WTO, other international legal regimes and domestic legal orders will comprise a key part of the future of the discipline.
WTO Law
Abstract: This book review of The WTO at 10: The Contribution of the WTO Dispute Settlement System (edited by Georgio Sacerdoti, Alan Yanovich and Jan Bohanes) builds from the volume’s contributions to show how the creation of the Appellate Body, contrary to the expectations of the WTO’s members, has resulted in the judicialization of international trade relations in which the Appellate Body becomes the centerpiece. The WTO Appellate Body plays a more central role in international dispute settlement than any judicial body in any other multinational organization, even though it formally is not referred to as a “court,” nor its members as “judges.”
WTO, dispute settlement
Abstract: The question of how to produce 'global public goods' in a world of sovereign states with divergent norms and preferences, reflecting differences in economic development levels, is increasingly on the international policy agenda. This question raises issues not only for political decision-making but also for judicial interpretation of existing international agreements. This article analyzes this fundamental question in the context of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), with particular emphasis on patent protection for pharmaceutical products. The TRIPS Agreement's provisions raise concerns over at least three public (or quasi-public) goods in this area: the generation of new knowledge, the provision of public health, and the maintenance of rules fostering open trade and competition. WTO judicial panels charged with resolving disputes regarding patents on medicines must determine whether to defer to national sovereignty, multilateral negotiations, or their own interpretations in balancing among these objectives. Thus, questions of 'who participates' and 'who decides' will be critical in this determination. The article notes structural weaknesses in the ability of developing countries to participate meaningfully in the WTO judicial process and offers suggestions for making their participation more meaningful so as to protect their interests.
Abstract: This article addresses the issue of parliamentary oversight of WTO rule-making at the national and international levels. Parliamentarians` views of alternative mechanisms for ensuring parliamentary control of the WTO tend to vary by jurisdiction. From a positive perspective, these views reflect power structures at the national, regional, and international levels, as well as parliamentarians` experiences with supranational governance institutions. European political representatives are more accustomed to shared supranational governance institutions. They tend to propose expansion and adaptation of the EU model to address global governance challenges. US congressional representatives, in contrast, tend to be wary of how US `sovereignty` and US power can be constrained through the WTO or any other global governance regime. They tend to oppose adding a parliamentary dimension. From a normative perspective, in order to meaningfully discuss WTO accountability we need a conceptual framework that permits us to assess the tradeoffs between different mechanisms for ensuring oversight, including parliamentary oversight, of the WTO. This article adopts a comparative institutional one. The article addresses the policy arguments for and against the addition of such a parliamentary dimension to the WTO and examines some of the many institutional challenges that would arise. The article maintains that the creation of a WTO parliamentary body should be judged in terms of its impact on the participation of less powerful stakeholders and, in particular of developing countries and their constituents, relative to other institutional alternatives.
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