Free Markets and Social Regulation:A Reform Agenda of the Global Trading System Toward a New International Economic Law
Kluwer Law International B.V., 2003 M01 1 - 217 pages
Discussion of trade barriers has come round-inevitably it seems-to national regimes of regulatory protection. As the author of this important analysis writes: "Global free trade is hard to imagine under circumstances in which each country seeks to regulate domestic social affairs in its own way, without regard to international norms." Indeed, state regulation has the potential to undermine the very legitimacy of the global trading system. A compelling reconciliation between these two paramount values is essential.
Free Markets and Social Regulation: A Reform Agenda of the Global Trading System has a twofold purpose: to consider what has so far been accomplished in this vital mission in the field of international economic law, and to prescribe some solutions to continuing problems. This latter endeavour amounts to a coherent and integrated plan that will enhance the acceptability of free markets to governments, traders, and other stakeholders alike. The challenges analyzed in depth here include the following: the late development in the global trade regime of non-trade policy objectives, which still tend to be treated as mere exceptions to general obligations; the built-in emphasis on products rather than measures ; the novel risks associated with the development of modern technology; the case-by-case approach of WTO jurisprudence, which generally fails to investigate whether the substance of any given domestic regulation is necessary to the policy goals of the state in question; and the "technical and economic feasibility" of complying with international trade obligations. The author conducts his analysis in a broad context encompassing the WTO system, the European Union, and the North American Free Trade Agreement. He finds that the clash, despite the particular institutional characteristics of these various organizations, is a major concern of them all. The jus gentium of international trade, he offers, is an imperative combining the good faith principle with the communitarian duty to cooperate. Exactly how to go about ordering this imperative is what this book is about. Its clear focus on an urgent problem in the development of the global trading system will capture the attention of all practitioners and students of international economic law.
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... The Law of National Treatment (Article III:4) Provision.......................................................................... 18 Overview: From a Diplomatic Tool to a Legal Obligation.
Yet, despite the potential benefits of this new jurisprudence, the book points out that the pro-trade bias still remains due to a structural `dichotomy' between general obligations such as National Treatment, ...
Therefore, even the legal mechanisms of GATT, such as the National Treatment obligation, were originally meant to preserve the balance of tariff concessions, rather than to establish an independent set of norms.
For instance, panels confronting GATT Article III:4 (National Treatment in Domestic Regulation) spent most of their interpretive energy in determining whether two products in question–domestic and imported–were alike.
Despite the foregoing jurisprudential evolution, the pro-trade bias resulting from the dichotomy still remains in the context of GATT 1994 because such dichotomy is textually structured in GATT Articles III:4 (National Treatment) ...