Legal Yet Political: Addressing the Dual Nature of the WTO Decision-making System Under a Democratic Approach

22 Pages Posted: 8 Jan 2020

See all articles by Ana Peres

Ana Peres

King’s College London, Dickson Poon School of Law

Date Written: January 6, 2020

Abstract

The WTO takes pride in being a rule-oriented organisation, which means that rules have a central position in its decision-making and dispute settlement systems. Such principle bestows more technical and legal rigor to the WTO functioning, contributing to enhancing its legitimacy and credibility. An arrangement based on the application of rules gives stability and predictability to the multilateral trading system, inasmuch as states trust the framework to negotiate new topics and settle possible trade disputes. The rule of law and its limits to the exercise of power in the decision-making process, however, do not mean the absence of a political aspect in the WTO. Accordingly, the primacy of legality should offer space for including political elements in the WTO procedures. The legal and political features are directly related to the extent that, to accept the current degree of legalisation, Members claim more politics and participation. To that end, WTO should ensure efficient and legitimate procedures to enable effective participation of all its Members. Nonetheless, the WTO decision-making system is marked by a divide between developing and developed Members. Albeit being the central forum for negotiating multilateral trade, the Trade Facilitation Agreement is the only significant progress made since 2003. Such a framework would shed light on the need to review the WTO decision-making system, balancing the Members different interests to deliver trade agreements. This paper assesses the WTO decision-making process, examining whether it reflects the diversity of the membership. I argue that adopting a democratic approach to the WTO decision-making system could strengthening the rule of law within the organisation, balancing its political and legal features to advance multilateral trade agreements. The goal is to analyse what would be the relationship, if any, between greater democratic procedures and the diversity of Members and agendas.

Keywords: WTO, decision-making, participation, developing countries, discursive democracy

Suggested Citation

Peres, Ana, Legal Yet Political: Addressing the Dual Nature of the WTO Decision-making System Under a Democratic Approach (January 6, 2020). 2019 ESIL Annual Research Forum, Goettingen, 4-5 April 2019 , Available at SSRN: https://ssrn.com/abstract=3514887 or http://dx.doi.org/10.2139/ssrn.3514887

Ana Peres (Contact Author)

King’s College London, Dickson Poon School of Law ( email )

Strand
United Kingdom

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