Shaffer, Gregory

English

Loyola University Chicago, School of Law: LAW eCommons

Loyola University Chicago International Law Review
Volume 6
Issue 1 Fall/Winter 2008 Article 2
2008
WTO Law in a Fragmented, Decentralized
Interantional Legal Order: Symposium
Introduction
Gregory Shaffer
Loyola University Chicago, School of Law
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Recommended Citation
Gregory Shaffer WTO Law in a Fragmented, Decentralized Interantional Legal Order: Symposium Introduction, 6 Loy. U. Chi. Int'l L. Rev.
1 (2008).
Available at: http://lawecommons.luc.edu/lucilr/vol6/iss1/2
WTO LAW IN A FRAGMENTED, DECENTRALIZED
INTERNATIONAL LEGAL ORDER:
SYMPOSIUM INTRODUCTION
Gregory Shaffert
This symposium issue arises from a conference held at Loyola University
School of Law on February 15, 2008, which was co-sponsored by the American
Society of International Law. The special issue addresses WTO law in a frag-
mented, decentralized legal order, examining on the one hand its relation to other
international law, and on the other its relation to national law. That is, the papers
in this issue examine WTO law in its vertical and its horizontal dimensions in
terms of the allocation of authority, legitimacy and impact.
This introduction provides an overview of the conference and introduces the
five papers published here. The conference was organized into four sessions,
complemented by a keynote address from Merit Janow on her reflections as a
member of the WTO Appellate Body. For each session, a commentator prepared
a series of questions prior to the conference that were drawn from the papers.
Here is a list of the panels and panelists.
Panel 1. Doha Round Appraisal and Implications
Raj Bhala, Rice Distinguished Professor, University of Kansas, School of
Law
Sungjoon Cho, Professor of Law, Chicago-Kent College of Law
Spencer Waller, Professor of Law, Loyola University Chicago
Panel 2. WTO Law in a World of Fragmented International Law
Tomer Broude, Faculty of Law & Int'l Relations, Hebrew University
Jerusalem
Emst-Ulrich Petersmann, Professor of Law, European University Institute
Joel Trachtman, Professor of Int'l Law, The Fletcher School, Tufts
University
Keynote Address. Merit Janow, Reflections of a Member of the
Appellate Body
Member of the WTO Appellate Body & Professor of Law, Columbia
University
Panel 3. The Impact of WTO Law in Domestic Legal Orders
Jeffrey Dunoff, Charles Klein Professor of Law & Government, Temple
University
Padideh Ala'i , Professor of Law, American University
Deborah Steger, Professor of Law, University of Ottawa
t Melvin C. Steen Chair of Law, University of Minnesota Law School. At the time of the sympo-
sium, Gregory Shaffer was the Wing-Tat Lee Chair of International Law at Loyola University Chicago
School of Law.
Loyola University Chicago International Law ReviewVolume 6, Issue I
Symposium Introduction
Karen Alter,. Associate Professor of Political Science, Northwestern
University
Rachel Brewster, Assistant Professor of Law, Harvard Law School
Panel 4. WTO Law and Developing Countries
William Davey, Guy Raymond Jones Chair, University of Illinois
Gregory Shaffer, Wing-Tat Lee Chair of Int'l Law, Loyola University
Chicago
Brett Frischmann, Associate Professor of Law, Loyola University
Chicago
Jide Nzelibe, Associate Professor of Law, Northwestern University
This special issue begins with former Appellate Body member Merit Janow's
keynote address in which she provides her "Reflections on Serving on the Appel-
late Body." Professor Janow addresses the "legalization" of WTO dispute settle-
ment from the preceding system under the GATT, finding that it is now very
much a "judicial mechanism." Appellate Body members now operate more like
judges, ensuring their independence from governments (including by rendering
their decisions anonymously), and deploying "legal interpretive reasoning" as
their methodology. She remarks how Appellate Body members operate as part of
a "collegial" body so that, even though only three members are allotted to each
panel, the members engage collectively in an "exchange of views" in each case,
reflecting a "deliberative process." She observes, in parallel, the development of
a specialized professional trade bar representing the users of the system. She
finds that certain parties nonetheless are relatively less prepared than others for
questioning in oral hearings because they only repeat the written arguments in
their legal briefs.
Professor Raj Bhala, in turn, addresses, the political dimension, providing a
careful examination of the deep schisms between countries in the Doha Round
negotiations.1 Professor Bhala notes the divides between not only rich and poor
WTO Members, but also among them. He provides a detailed explanation of
Members' positions in agricultural trade, industrial trade, services trade and trade
remedies negotiations as their positions developed from the fall of 2007 through
the summer of 2008. He concludes by stressing the importance of development
issues and the engagement of developing countries in the Round, despite skepti-
cism among some commentators that the WTO has become unwieldy and dis-
tracted from its core mission of trade liberalization through the mechanism of
reciprocity.
Professor Tomer Broude next provides an extremely useful analytic frame-
work for assessing the severe challenges of normative integration of international
law in a fragmented international legal order.2 As he writes, there is "a strong
linkage between the fragmentation of norms and the fragmentation of authority,
I Raj Bhala, Doha Round Schisms: Numerous, Technical, and Deep, 6 Loy. U. Cm. INT'L. L. REV.
5 (2009).
2 Tomer Broude, Principles of Normative Integration and the Allocation of International Authority:
The WTO, The Vienna Convention on the Law of Treaties, and The Rio Declaration, 6 Loy. U. CHI.
INT'L. L. REv. 173 (2009).
2 Loyola University Chicago International Law Review Volume 6, Issue I
Symposium Introduction
in the simple sense that an increase in normative integration generally results in a
corresponding increase in authority integration, and vice versa." 3 Any use by an
international body, such as the WTO Appellate Body, of principles of normative
integration also entails assertions of authority to decide over the application of
these principles. Normative legal integration can thus lead to the centralization
of international legal authority, a development which may give pause to those
who stress the importance of global governance as opposed to global govern-
ment. Professor Broude nonetheless contends that "qualitatively different models
of norm integration can lead to different degrees of authority integration," point-
ing to the United Nations Rio Declaration on Environment and Development and
WTO jurisprudence's application of the Vienna Convention on the Law of Trea-
ties as examples.4 He predicts that international tribunals should respond more
favorably toward normative models based on softer forms of law which create
less pressure towards authority integration.
The fragmentation of international law exists not only along the horizontal
dimension of non-hierarchical international institutions. It also involves a verti-
cal dimension in which countries determine whether and how to enact and imple-
ment international law. Professor Jeffrey Dunoff provides a fascinating
exploration of these issues in his review of the status of WTO law in US courts.
One means to ensure greater consistency of international law proposed by many
"internationalists" is through direct enforcement of international law by national
courts. In his contribution, however, Professor Dunoff argues that providing for
domestic enforcement of WTO law could, ironically, lead to further fragmenta-
tion of international law. 5 All law is subject to interpretation, so that even if
domestic bodies directly apply international law, they will do so in different
ways. Professor Dunoff contends that the costs of the resulting doctrinal disarray
would outweigh the benefits, especially because, he states, there is already an
excellent record of Member compliance with WTO panel and Appellate Body
rulings.
Professor Ernst-Ulrich Petersmann puts forth an alternative perspective to
those of Professors Broude and Dunoff in an application of his normative consti-
tutionalist approach. 6 Professor Petersmann points to the potential of reducing
normative fragmentation of international law through a cosmopolitan constitu-
tional approach based on methods of treaty interpretation, building from the ex-
periences of multilevel judicial cooperation in the European Union, the European
Economic Area and the European Convention of Human Rights. He maintains
that the explicit WTO requirement of "providing security and predictability to the
multilateral trading system ... in accordance with customary rules of interpreta-
tion of public international law" calls for interpreting WTO rules in conformity
3 Id.
4 Id.
5 Jeffrey L. Dunoff, Less Than Zero: The Effects of Giving Domestic Effect to WTO Law, 6 Lov. U.
CHI. INT'L. L. REv. 279 (2009).
6 Ernst-Ulich Petersmann, De-Fragmentation of International Economic Law Through Constitu-
tional Interpretation and Adjudication with Due Respect for Reasonable Disagreement, 6 Loy. U. Cm.
INT'L. L. REv. 209 (2009).
Loyola University Chicago International Law ReviewVolume 6, Issue I
Symposium Introduction
with "principles of justice" and "human rights" in application of the Vienna Con-
vention on the Law of Treaties, which offers a flexible framework for reducing
legal fragmentation in international economic law for the benefit of citizens.
Judges, both at the national and international levels, he argues, should cooperate
as "exemplars of public reason" (citing the work of John Rawls) in clarifying and
reconciling indeterminate treaty obligations of governments with constitutional
principles of rule of law and judicial protection of individual rights, while provid-
ing due respect for the legitimate diversity of national constitutional traditions
regarding human rights and principles of justice.
The symposium also includes an article by Professor Padideh Ala'i in which
she addresses the role that the WTO and its requirements of government trans-
parency and due process can play within domestic legal systems. 7 She finds that,
indirectly, the WTO can play a more powerful rule in combating corruption at the
national level than other international institutions, such as the World Bank, which
attempt to do so directly. Her article exhibits once more the ways in which inter-
national economic law scholarship can assess the WTO in relation both to other
international institutions - in this case regarding anti-corruption efforts - and
to different domestic settings.
In sum, the articles in this symposium issue demonstrate how the study of the
interaction between the WTO, other international legal regimes and domestic le-
gal orders will comprise a key part of the future of the discipline.
4 Loyola University Chicago International Law Review
7 Padideh Ala'i, The WTO and the Anti-Corruption Movement, 6 Loy. U. CHI. INT'L. L. REV. 259
(2009).
Volume 6, Issue I


WTO Law in a Fragmented, Decentralized Interantional Legal Order: Symposium Introduction

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