WTO’s Identity Crisis (reviewing Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003))

Joost Pauwelyn has written an extensive and thought-provoking treatise on the interaction of norms in public international law (PIL), in particular between norms of World Trade Organization (WTO) and non-WTO norms, through a conceptual lens of “conflict.” His main argument is non-WTO norms should be able to “trump” WTO norms under certain circumstances. After framing the concept of norm conflict in PIL (Chapter 1), and defining the nature of WTO law (“reciprocal” obligations) vis-à-vis that of other branches of PIL such as human rights and international environmental law (“integral” obligations) (Chapter 2), the book unfolds its conflict thesis, including hierarchy of sources (Chapter 3), two mutually exclusive modes of norm interaction, which are accumulation and conflict (Chapter 4), conflict avoidance (Chapter 5), and conflict resolution (Chapters 6 and 7). The final Chapter attempt to apply the conflict thesis developed in previous Chapters to the specific situation of WTO dispute settlement. This review will chiefly focus on the nature, or identity, of the WTO as it is described and defined by Pauwelyn when he addresses the norm conflict between WTO rules and non-WTO rules. The review concludes that Pauwelyn\u27s thesis of conflict resolution risks weakening the WTO system through encroaching upon the WTO\u27s identity

An International Organization’s Identity Crisis

The ontological status of international organizations remains largely nebulous despite their contemporary prominence. Traditional international relations theories regard international organizations (IOs) as instruments primarily created to serve powerful states’ interests (neorealism) or to facilitate interstate cooperation on certain regulatory areas (neoliberal institutionalism). These theories hardly offer a satisfactory explanation of a distinctive mode of IOs’ identity forming process, in which a particular IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This Article offers a novel perspective that attempts to overcome the aforementioned theoretical deficiency. Drawing on the identity theory in psychology, this new perspective captures an IO’s internal normative development in which one can witness a dynamic process of identity formation. The Article argues that based on its autonomy sine qua non organization, and not merely as an instrument of states, an IO forms its unique legal identity as it experiences a normative crisis in a similar way that a human individual would. An IO discovers its genuine identity only after it achieves a necessary level of institutional maturity as a result of incessant legal interactions and communications with its environment. The Article tests this new framework by applying it to the World Trade Organization

Global Constitutional Lawmaking

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The 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 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 meaning and possibilities within the WTO, which are anchored firmly by a discernible purpose of cabining trade distortive/restrictive consequences from the use of zeroing which have long been left unchecked. The legitimacy (sustainability) of such constitutional lawmaking can be secured not only by exogenous factors such as domestic political support but also by endogenous factors such as normative recognition by the domestic legal system (“internalization)

Doha’s Development

This Essay argues that the current development crisis within the Doha Round is inextricably linked to the nature of modern day trade negotiations. This Round reveals a bargaining process in which the powerful can too easily exploit and prevail over the powerless. This process is also vulnerable to domestic political maneuvers such as capture. Under these circumstances, poor countries\u27 development concerns are not well represented, which accounts, despite years of talks, for the current sorry state of the negotiational outcome on agricultural subsidies and tariffs. To overcome these flaws of trade negotiation, this Essay suggests that certain core legal precepts, such as antiprotectionism, should limit ability to pursue mercantilist options. Adjudication under the WTO dispute settlement mechanism can also provide further discipline over the negotiation process by shedding a legal light on power differential. To tackle the problem of capture, a bottom-up formulation of negotiation positions through active public participation in the domestic arena will change the dynamic of the two-level game and thus deliver negotiating positions that cater to the broad public welfare, not to the most powerful special interests

Reinventing the Development Wheel of the World Trading System (Reviewing Sonia E. Rolland, Development at the World Trade Organization (2012))

In probing how WTO norms may affect developing countries, Sonia Rolland introduces two paradigms in this book: development as an idiosyncrasy and development as a normative co-constituent to trade. The first paradigm concerns development-related exceptions and carve-outs found within WTO rules and agreements that exemplify a contingent provision of special favors to developing countries. Overall, it represents a limited mandate on development in the WTO. In contrast, the second paradigm embodies a normative operationalization of development agenda within the WTO system. It normatively reconstructs WTO rules and institutions in a way where development is a core mandate of the WTO, on par with free trade. In her reform proposals, the author reveals a subterranean advocacy of a shift from the first to second paradigm. The author offers a rare in-depth account of the past, present, and future of development in the world trading system. This Review Essay complements the author’s ambitious project by locating some missing pieces of this grand puzzle of trade and development, such as general trade rules and disciplines

Toward a New Economic Constitution: Judicial Disciplines on Trade Politics

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double standard creates images of American Exceptionalism and undermines the effectiveness of the multilateral trading system. As a solution, the paper suggests certain judicial options to discipline protectionist trade politics, such as structural and substantive due process as well as internalization of free trade principles. It argues that measures suspected as protection should undergo strict scrutiny, and should fail absent compelling justifications for them. It also submits that certain essential global trading norms, such as the non-discrimination principle, may be internalized by the Court under constitutional doctrines, such as Charming Betsy

Remedying Trade Remedies

Although competition has been an ideological beacon of economic governance ever since the birth of the Union, it has largely been an internal affair. External competition from foreign producers has failed to be factored into antitrust scrutiny. On the contrary, the government, through its trade policies such as antidumping remedies, has often hampered foreign competition to protect domestic producers at the expense of all the benefits that foreign competition might bring to the economy. Antidumping remedies tend to create a legal cartel: they fix the import prices and generate non-price predation by petitioners. However, the Federal Trade Commission (FTC)\u27s potential antitrust mission over trade remedies is severely obstructed by a judicially created antitrust immunity labeled the Noerr-Pennington doctrine. As a legal reincarnation of political pluralism under the Warren court, this doctrine expansively immunizes antidumping petitioners from any antitrust investigations over their potentially trade-restraining behaviors. Against this backdrop, I argue in this Article that the failure to allow antitrust oversight when implementing trade remedies should be rectified by means of judicial and administrative intervention. I do not propose herein a repealing of the current antidumping statute: such a drastic measure would be politically infeasible in the current protectionist atmosphere of Congress. Instead, I take a more modest yet realistic stance: sanitizing antidumping remedies by bringing certain abusive behaviors in the antidumping proceeding, such as deliberate misrepresentations of facts and data, under antitrust disciplines. In order to prevent such abuse of antidumping remedies by rent-seekers, courts should interpret the currently narrow definition of the sham exception broadly enough to effectively foreclose non-price predation. At the same time, the FTC, under its vested antitrust authority, should reinforce its surveillance and enforcement activities to guard against the abuse of trade remedies by domestic producers. In the long-term, these targeted judicial and administrative interventions will eventually lead the public, and legislators alike, to rethink the antidumping statute itself

The World Trade Constitutional Court

The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the WTO tribunal has in fact assumed such role by having recently struck down a hoary antidumping practice called “zeroing” which tends to inflate dumping margins and thus is a central vehicle for contingent protection embedded in the antidumping mechanism. The paper observes that the recent proliferation of antidumping measures as a new protectionist instrument has motivated the AB’s hermeneutical departure from the past interpretation which had endorsed the practice. This, it argues, is a “constitutional” turn of the WTO which a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound. Critically, this turn originates from bold ideas which envision, and thus “constitute,” new institutional meaning and possibilities within the WTO. In other words, the AB’s exegesis is anchored firmly by a discernible purpose of cabining trade distortive/restrictive consequences from the use of zeroing which have long been left unchecked. Finally, WTO members, the paper maintains, must preserve the anti-zeroing jurisprudence as constitutional norms in the absence of extraordinary circumstances tantamount to a constitutional amendment