Global Constitutional Lawmaking
32 Pages Posted: 3 Sep 2010
Date Written: 2010
This Article identifies a nascent phenomenon of "global constitutional lawmaking" in recent World Trade Organization ("WTO") jurisprudence that struck down a certain calculative methodology ("zeroing") in the anti-dumping area. This Article interprets the Appellate Body's uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing under the General Agreement on Tariffs and Trade ("GATT") case law, as a "constitutional" turn of the WTO. The Article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn originates from bold ideas which envision, and thus "constitute," new institutional meanings and possibilities within the WTO. They are anchored firmly by the discernible purpose of cabining distortive and restrictive trade consequences from the use of zeroing which have long been left unchecked. Exogenous factors, such as domestic political support, and endogenous factors, such as normative recognition by the domestic legal system ("internalization"), can secure the legitimacy and sustainability of such constitutional lawmaking.
Keywords: WTO, GATT, antidumping
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