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This paper, which was originally published in the journal Comparative Political Studies in 1999, is the second of two that elaborate a relatively general approach to judicial politics, which emphasizes the underlying social logics not just of law and courts but also of politics and government. The triad – two contracting parties and a dispute resolver – constitutes a primal social institution, a microcosm of governance, so in uncovering the institutional dynamics of the triad an essential logic of government itself is also uncovered; the objectives of this paper are to defend the validity of these contentions and to demonstrate their centrality to the discipline. After introducing the key concepts of dyad, triad, and normative structure, a model is presented of a particular mode of governance, i.e. the social mechanism by which the rules in place in any given community are adapted to the experiences and exigencies of those who live under them. The theory integrates, as interdependent factors, the evolution of strategic (utility-maximizing) behaviour and normative (cultural or rule-based) structure, and captures dynamics of change observable at both the micro level (the behaviour of individual actors), and the macro level (the institutional environment, or social structure, in which this behaviour takes place); the mechanisms of change that are endogenous to the model are specified, and the conditions under which these mechanisms would be expected to operate, and fail to operate, are identified. The model is then used to explain two hard cases of systemic change: the international trade regime, established by the 1947 General Agreement on Tariffs and Trade (GATT); and the French Fifth Republic, founded in 1958; the conclusion draws out some of the implications of the analysis for understanding of the complex relationship between strategic behaviour and social structure.

This chapter traces the impact that the rise of neoliberalism had on the institutions and practices of the international trade regime from the 1970s through to the end of the 1990s. It focuses on the ideational dimension of this transformation period in the regime's history, rather than its material underpinnings, since the latter is much better understood and described in the existing literature than the former. It suggests that at some fundamental level this transformation was a reconstitution of the way that trade professionals made sense of the world in which they worked and imagined their role within it. The chapter also charts the re-constitution of the General Agreement on Tariffs and Trade/World Trade Organization's (GATT/WTO) legal system from a mechanism working through the mobilization and application of diplomatic consensus through flexible norms, to one operating through the constitution, authorization, and projection of technical knowledge through formalized law. It shows how this was associated with new ideas about the purpose of the trade regime and the role of law within it. Of course, this change was neither complete nor clean — the WTO's legal system remains to some extent still subject to diplomatic control, and there are many aspects of the GATT's early legal system which still endure. Nevertheless, the aim of the chapter is to highlight the discontinuities rather than the continuities, since this helps us to see more clearly the fundamental ideational elements of the trade regime's ‘neoliberal turn’ over the last three decades of the 20th century.

This chapter examines the extent to which the international trade regime impacts upon international investment law in four areas: the design and architecture of the investment regime; the patterns of investment treaty formation; the substance of investment treaty provisions; and treaty interpretation. It shows a divergence between theory and practice in the relationship between the trade and investment regimes: whilst many commentators have identified rich areas for cross-fertilization, the evidence from treaty negotiations and litigation confirms only a limited and selective influence of trade law within the investment regime. The interaction between the regimes remains sporadic and decentralized, and occurs at the instigation of non-state actors (investors) who have no standing to challenge adverse trade measures before the WTO but who may have a remedy in investment treaty arbitration. The normative orientations of the trade and investment regimes are fundamentally different, and hence one should not expect a rapprochement in the foreseeable future, especially in the institutional sense.

The late 20th-century transformation of the international trade regime came under sustained criticism almost as soon as it took recognizable shape, and by the turn of the millennium was commonly acknowledged to be in the midst of a legitimacy crisis. This concluding chapter assesses the ways in which the World Trade Organization's (WTO) legal system has responded to this crisis. Section I briefly recapitulates the events which led to the WTO's legitimacy crisis at the end of the 1990s, many of which have already been described in some detail in Chapters 2 and 3. Sections II and III describe the most significant jurisprudential trends which have arisen by way of response, focusing primarily on a growing movement towards greater deference and the ‘proceduralization’ of WTO jurisprudence involving politically sensitive domestic regulation. Section IV reflects on these jurisprudential developments, and in the light of the material covered in the previous eight chapters, attempt to assess whether they reflect an attractive, defensible, and sustainable normative foundation for global economic governance in a world ‘after neoliberalism’.

The issues concerning trade in biotechnology and genetically modified organisms (GMOs) have been highlighted in the context of environment and biodiversity. The various legal frameworks within the WTO and international trade regimes including GATT, TBT, SPS agreements, Codex, and their role in regulating international trade in GMOs are presented. At the same time, given the risks involved in trade in GMOs, regulation of environment and biodiversity concerns have been debated through discussing convention on biological diversity, biosafety protocol, and their role in GMO trade for ensuring safety of the environment and sustainable development. Judicial responses to GMO trade and environmental concerns are mapped through discussing milestone court decisions in regions including the US and Europe which have laid the law in force on GMO trade. The chapter highlights the interface between the trade law and environmental law in the context of GMO trade.