Separation of Trade Law Powers
40 Pages Posted: 29 Jun 2018
Date Written: June 1, 2018
The first commercial treaty concluded by the United States began as a diary entry by John Adams. Nearly two and a half centuries later, the United States and international trade law have come a long way, but the uniqueness of trade lawmaking persists. Then, as now and in the future, U.S. trade law has been and will be heavily influenced by the balance of power between Congress and the Executive. This Article argues that the carefully choreographed procedure for negotiating free trade agreements has contributed to a type of path dependence with respect to the text of those agreements to the detriment of U.S. interests. The recent failure of the Trans-Pacific Partnership Agreement demonstrates this point: much of the agreement language copied prior agreements that were already subject to considerable criticism. Because that language tracked congressionally prescribed negotiating objectives, negotiators felt obliged to recycle it. This single modelling, driven by the bi-branch shared-power construct unique to trade, is under challenge on the eve of the NAFTA 2.0. While standardized language may have utility in certain spheres of international contract, the efficiency gains in international trade agreements do not outweigh an interest to reconsider text and standards where possible. This Article seeks to explain through traditional international relations theories the default modelling that occurs in the design of trade law instruments and proposes an under-explored explanation for further study, one that is contrary to the consensus on U.S. foreign relations law more generally: when it comes to trade agreements, Congress has assumed a role in which it may be considered to act as principal and the Executive acts as its agent.
Keywords: trade law, separation of powers, free trade agreements, path dependence
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