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Toward a More Just WTO: Which Justice, Whose Interpretation?

The Legitimacy of International Trade Tribunals, eds. Robert Howse, Helene Ruiz Fabri, Qingzi Zang, Ole Kristian Fauchald and Geir Ulfstein. Cambridge: Cambridge University Press, Forthcoming

28 Pages Posted: 25 Apr 2017 Last revised: 5 Oct 2017

Andreas Follesdal

Pluricourts

Date Written: April 23, 2017

Abstract

The WTO is often criticized as promoting global injustice. Critics of many such protests against the WTO may firstly dismiss the objections as ‘category mistakes’, holding that standards of justice cannot apply to entities such as the WTO system. A second line of response would be that even granting that there are such risks, several reform proposals are ill-founded. To alleviate whatever injustice the WTO system is complicit in, less radical changes than fundamental treaty changes may suffice.

The present chapter challenges the first of these counter-arguments, and supports the second, as regards WTO and global distribute justice. The chapter leaves urgent issues of the environment and many human rights concerns aside – though some of the arguments are also relevant for some of these issues. The focus is on the WTO dispute settlement mechanism (DSM, ‘Mechanism’), especially the adjudicatory panels and the Appellate Body (‘AB’).

This article has three main objectives. It firstly defends the diagnoses that the WTO system contributes to global distributive injustice, against some potentially devastating criticisms. The substantive contents of the principles of global justice are not central to the arguments, but to fix ideas the next section of this introduction sketches the contours of such principles.

The second objective is to challenge the prescriptions many critics hitherto have promoted, for two main reasons. Section 4 argues that principles of global justice for the GBS as a whole drastically underdetermine reform proposals for the Mechanism. Furthermore, many critics underestimate the scope of discretion international judges and panel members enjoy in interpreting and specifying treaties. The upshot is that broad scale reforms may be neither possible nor effective – but also not necessary. Radical treaty changes are unlikely since many of them require consensus among states. Instead, the AB may change its interpretative practice to make significant moves toward a more just WTO system. The third contribution, in sections 5 and 6, is to start to explore ways that the existing WTO system may become more just if members of the panels and of the AB develop their interpretive standards in one or more of four ways.

Keywords: global distributive justice, global basic structure, WTO, Appellate Body

Suggested Citation

Follesdal, Andreas, Toward a More Just WTO: Which Justice, Whose Interpretation? (April 23, 2017). The Legitimacy of International Trade Tribunals, eds. Robert Howse, Helene Ruiz Fabri, Qingzi Zang, Ole Kristian Fauchald and Geir Ulfstein. Cambridge: Cambridge University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2957071

Andreas Follesdal (Contact Author)

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

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