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This chapter argues that rethinking the boundaries of labour law must include considering a broad range of public policy measures that not only intersect with labour law, but shape it. In particular, trade liberalisation and restrictions to the movement of persons influence our understandings of how labour is meant to be regulated. The chapter offers a brief historical framing and a discussion of some of the contemporary empirical literature, to capture employment effects of an asymmetrical liberalisation that has fundamentally called into question the embedded liberal compromise made by industrialised market economies. It argues that efforts to rethink the boundaries of labour law must engage with trade law and immigration law. In the process, it challenges the binary between trade versus aid. It suggests that it is neither acceptable nor strategically wise to resist the movement of persons for work and its development implications; rather it is time to focus carefully on the terms of that movement. Support for a notion of ‘reasonable labour market access for migrant workers’ must be accompanied by a ‘decent work complement’, which might take the form of a ‘reverse’ social clause.

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.

The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.

This chapter examines the role of domestic political interests in the selection of U.S. cases for World Trade Organization (WTO) adjudication. It first considers how the United States has taken a lead role in the area of trade law enforcement before discussing how legislative constraints and interest group pressure operate in U.S. trade policy. The Kodak–Fuji WTO dispute between the United States and Japan is used to illustrate an example of politicized selection of a case for adjudication. The chapter also analyzes U.S. complaints about market access barriers by leading trade partners. By identifying potential trade disputes, it shows why some cases go forward to adjudication. It also explains how the WTO disputes served an important role in the executive strategy to manage domestic pressure from Congress for a more aggressive policy against China.

The international effects of anticompetitive conduct and competition law enforcement actions are the source of many international conflicts. This chapter examines these conflicts within a trade policy framework. Section 5.1 outlines the relationship between trade law and competition law. Section 5.2 seeks to identify suitable rules to reduce international conflict that arises from the application of competition law in cases with an international element. Section 5.3 explores some of the international issues raised by predatory and exclusionary conduct. Section 5.4 examines whether transaction and compliance costs arising from the overlapping application of competition laws and multiple pre-merger reviews might justify the harmonization of competition laws.

This chapter examines the role of courts in the ability of democratic politicians to support international commitments. Taking a closer look at the domestic political origins of trade disputes is necessary to understand the demand for adjudication. The logic of tied hands and two-level games in bargaining has influenced a large research agenda that brings together analysis of domestic politics and international relations. In particular, existing scholarship highlights the role for domestic politics in the area of trade. The chapter develops hypotheses about how variation in domestic politics affects the demand for use of adjudication in dispute settlement. It also explains how political pressures that shape conditions for liberalization of trade policy also affect trade law enforcement.

This chapter looks at an increasingly important part of EU trade policy — trade in services. It discusses the notion of ‘public services’ at a more general level, and then discusses the treatment of public services in the General Agreement on Trade in Services (GATS) and in bilateral trade agreements in detail. Among the conclusions is that the concept of trade in services according to the GATS and according to certain bilateral trade agreements of the EC is considerably broad, because it does not define the term services and because it encompasses four modes of supply, which include investments and temporary migration to provide services. Public services, understood in a broad sense as services supplied in the general interest, are at the heart of many debates about trade in services. Most of these services are covered by the GATS and the bilateral trade agreements.

This book examines why democratic institutions for accountability encourage use of adjudication to resolve trade disputes. It argues that governments file a formal legal complaint for World Trade Organization (WTO) adjudication as a costly signal to domestic and foreign audiences of the government's support for exporter interests that have been harmed by foreign protectionism. On the defendant side too, allowing oneself to be dragged into court signals support for importer interests that benefit from the trade barrier. The book develops a theory about domestic constraints to explain why democratic states are more likely to file legal complaints against trade barriers and select their cases based on the political influence of the affected industry. It explores the conditions under which states choose legal venues for dispute settlement, and how the legal context changes the outcome. This introductory chapter provides an overview of international trade law enforcement.

This chapter explores the field of (potential) norm conflicts between international trade law, in particular World Trade Organization law, and human rights law. The case law relevant to this kind of conflict is still emerging, as a result of which the patterns as to how court decisions (regularly) resolve emerging norm conflicts between the two fields of law are difficult to establish. However, amongst those decisions that are identified, courts largely avoid acknowledging a hierarchy of norms, or resolve conflicts by means of classic conflict avoidance techniques. Domestic courts seem, first, to consider whether the separate treaty regimes for different areas of international law are directly applicable and, to the extent that they are directly applicable, to treat them as separate from one another.

Part II of the book aims to provide a better account than currently exists of the precise role that neoliberal thought has played in the transformation of the General Agreement on Tariffs and Trade/World Trade Organization's legal system. This chapter performs some necessary theoretical ground-clearing, to prepare the way for this account. One of the reasons for the lack of an adequate narrative of the trade regime's neoliberal turn has been the dominance of objectivist theories of social action in mainstream scholarship on trade law and trade politics since at least the late 1980s. Such theories radically mistake the nature and significance of the ideational dimension of trade politics, sometimes even dismissing it altogether, and, as a result have impoverished understanding of the historical evolution of the trade regime for about two decades. Since the claim in Part II is that neoliberal thought transformed the ‘collective imagination’ of professionals involved in the field of international trade governance — that is, the collective symbolic order according to which they interpret the world around them, and understand their professional role within it — it is necessary to recall and rehearse some of the basic theoretical moves, first made some decades ago, which justify attention to the ideational dimension of trade politics. For those who are already comfortable with the claim that cognitive frameworks necessarily structure the conduct of trade politics and trade law, Chapter 6 will seem basic. Its inclusion is nevertheless necessary as a result of the continued prevalence of objectivist thinking in the field of international trade law, and the consequent potential for misunderstanding of the arguments made in subsequent chapters.

This book has investigated why states use adjudication for trade disputes, showing that domestic political pressure influences trade law enforcement through legal strategies. It has also examined the effectiveness of adjudication as a dispute settlement mechanism. This concluding chapter reviews the theory about the political role of adjudication. It considers the tension in how adjudication represents both conflict and cooperation between states as they escalate a trade dispute but do so within agreed upon rules. The tendency to sue friends reflects this dynamic—within a broadly cooperative relationship, trade adjudication can be part of business as usual. The chapter ends by extending the implications of the argument for a broader theory of legalization in international relations.

This chapter discusses the immediate background to the contemporary trade and human rights debate, focusing on the years from roughly the mid-1980s to the early 2000s. The chapter is structured in two sections. The first shows how the experience of trade liberalization in different countries and regions across the world in the 1980s and 1990s led to a variety of locally specific political struggles around trade across North America, Latin America, Western Europe, and parts of Asia and Africa. It also shows how, from the middle of the 1990s to around 2001, these local political struggles came together as part of a broader movement against neoliberal economic globalization, and began to focus their critical attention on the World Trade Organization (WTO). The second section then describes the social construction of trade as a human rights issue. It illustrates the way that some of the NGOs within this movement began to use human rights language as a way of framing and articulating their criticisms of trade liberalization and international trade law. It also asks why it was that human rights seemed, to many within the global justice movement, to be a useful language of resistance to what they saw as a global neoliberal economic agenda, and why it came to be adopted as such.

This chapter begins by chronicling the way that official international human rights bodies began to address international trade issues from about 1998 onwards. During this time, international human rights bodies adopted and re-articulated many of the critiques of trade emanating from the global justice movement — but they did so selectively, incrementally, and usually in a moderated and modified form. The result was that by at least the middle of the 2000s, there was a burgeoning international legal debate concerning the relationship between trade law and human rights law. The second part of the chapter shift gears, and focuses on the dominant discursive framework of this debate, referred to as the ‘coherence framework’. It describes the nature of this discursive framework, and shows how it shaped the lines of inquiry and criticism which have so far been characteristic of the trade and human rights debate.

This chapter discusses Japanese law on international relations. Topics covered include the Nationality Law, the status of aliens, foreign exchange and foreign trade law, rules on the conflict of laws, marriage and divorce, and problems relating to transactional disputes.

This chapter examines the General Agreement on Tariffs and Trade during its first two decades, with particular attention to the operation of its legal regime, and its approach to ‘domestic regulation’. The first section draws on a range of existing histories of the trade regime to recall the way that the regime's purpose was collectively imagined during this period, and the role which the law was understood to play in the achievement of these purposes. The second section shows how this ideational framework, and the institutional processes which reflected and embodied it, produced a peculiarly limited and modest approach to the oversight of domestic regulation during this period.

Clive M. Schmitthoff was born on March 24, 1903 to Anna Schmitthoff and Hermann Schmitthoff. He received a classical education at the Friedrichsgymnasium, one of the oldest grammar schools in Berlin, Germany. After passing his final examination in 1921, he studied law at the Universities of Berlin and Freiburg im Breisgau. He was awarded the degree of doctor iuris utriusque in 1927. The subject of his thesis was company law: the problem of shares controlled by the management of public limited companies. In 1929, Schmitthoff's first published work appeared and he passed the examination to become a fully qualified German lawyer. The political situation in Germany, as he assessed it at the time, made it impossible for him to pursue an academic career as he would have liked. This chapter chronicles the life of Schmitthoff, his publications in the fields of company law, commercial arbitration, commercial law, trade law, and conflict of laws, as well as his late works.