The Public and the Private in International Trade Litigation

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.

Keywords: International trade law, litigation, public, private, WTO, US-EU relations

Working Paper Series