Reputational Fallacies in International Law: A Comparative Review of United States and Canadian Trade Actions

Abstract:     
Reputation is an important and complex issue for individuals, communities and nations. The notion behind reputation is that individuals receive information about the behavior of others from third parties; this information is then used to decide whether or not to behave in a similar manner, and how to interact with the other person. Positive reputational information results in increased willingness to act cooperatively with the other person, while the opposite reaction occurs when individuals are provided negative reputational information.

Similar to the reputations of individuals, state reputations can be highly inaccurate. State reputations may be flawed or bear little resemblance to the actions of the states themselves, creating reputational fallacies. Reputational fallacies raise important issues for international law. In particular, the utility of reputation as a compliance mechanism, when reputation does not accurately reflect state behavior, may impact the effectiveness of international law. This Article will examine the problem of reputational fallacies through a comparative examination of two states with very different reputations in the international trade arena: the United States and Canada. The ensuing examination of U.S. and Canadian trade actions explores whether each state's reputation is logically connected to its actual behavior in the international trade arena. This Article ultimately concludes that there is little substantive support for each state's reputational difference. While this Article's examination is confined to the trade actions of the United States and Canada, it nonetheless suggests that reputation - as a means of enforcing state compliance with international obligations - is, at best, an inaccurate tool of international law. In fact, this Article suggests that reputation, at its worst, is harmful to international law compliance because it introduces fallacies and inefficiencies, as well as a whole host of other problems associated with its inherent inaccuracy.

Keywords: International Trade, International Law, Canada, Reputation, Trade Statistics, NAFTA, WTO, Trade Litigation

Accepted Paper Series