Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective

47 Pages Posted: 19 Aug 2017 Last revised: 22 Mar 2018

See all articles by Daniela Caruso

Daniela Caruso

Boston University School of Law

Date Written: August 22, 2017

Abstract

In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral deals may be structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this literature, I draw inspiration and materials from comparative private-law theory. I then review a range of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements, and show how the use of private law analogies in the context of trade theory yields both analytical pay-offs and normative caveats. I conclude that the ongoing attempts to identify, within the framework of international trade law, actionable remedies in favor of non-parties to trade agreements are analytically helpful, but remain distributionally ambivalent and need stronger normative vectors.

Keywords: Regional Trade Agreements, Negative Externalities, WTO Law, Remedies, Private Law Theory, Legal History

Suggested Citation

Caruso, Daniela, Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective (August 22, 2017). Harvard International Law Journal, Vol. 59, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3020155

Daniela Caruso (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-7024 (Phone)
617-353-3077 (Fax)

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