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The structure of arrangements for multilateral trade has caused much controversy, as was witnessed by the WTO ministerial conference at Seattle in 1999 and on other occasions. Examines the problem through the lens of the global public goods concept. It suggests that to become a global public good in substance rather than merely in form, the multilateral trade regime requires adjustments to correct a distributional imbalance favouring developed countries at the expense of developing countries.

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 briefly examines, based on recent legal analysis and scholarship in the field of sustainable development, the trade and investment implications of carbon trading. First, it considers how trade regimes, investment rules, and emissions trading schemes can serve as tools for sustainable development. It then examines the trade and investment implications of new emissions trading regulations, suggesting ways to minimize overlaps with trade and investment disciplines when drafting carbon-related regulations, and addressing issues related to technology transfer. It considers how trade and investment regimes might be refined to complement and support climate-change-related measures. The chapter concludes with a call for integration and, at a minimum, coherence among trade, investment, and climate change regimes that share common sustainable development objectives.

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 chapter aims to de-reify our understandings of both the trade and human rights regimes. Instead of taking the contemporary form of each regime as a starting point and asking what the relationship between them is, it maps (some of) the political struggles which have shaped and reshaped each regime over their history, and shows how ideas about the relationship between them have evolved in tandem. The first part focuses on the first decades of the post-war period, in which the mutual isolation of the two regimes was produced and enabled by their shared commitment to embedded liberalism, which defined their respective mandates in ways which sublimated and displaced potential conflicts, and which made temporarily plausible the idea that the two could easily be kept separate. The second part looks at the erosion of this mutual isolation in the context of the challenges which developing countries mounted within both regimes during the 1960s and 1970s. Finally, the third section begins the story — continued in the next two chapters — of the way in which the neoliberal revolution of the 1980s and 1990s again transformed the relationship between the two regimes, and gave birth to the contemporary trade and human rights debate.

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.

Though created roughly in the same period, committed to similar beliefs in the virtues of liberalised trade and open markets, sharing in many instances a common legal vocabulary, the General Agreement on Tariffs and Trade (GATT) and the European Union (EU) developed over the years as the Cain and Abel of international economic law. Together with the World Trade Organisation (WTO) and the North American Free Trade Agreement (NAFTA), the overlapping regimes of the EU and GATT illustrate the emergence of a nascent Common Law of International Trade rooted in three phenomena. First is the fact that the very same regulatory measure may come simultaneously within the jurisdictional reach of more than one trade regime and may even be adjudicated simultaneously. Second is the fact that in the material law of disparate international trade regimes we can see considerable convergence. Third is the strengthening of private parties in all regimes — once a preserve of the EU.

This chapter explores the global trade regime, which viewed substantive equality as the first step towards true equality. It defines the terms substantive equality and barriers-to-trade, and then studies the WTO as a tool to discourage protectionist policies of member states to achieve the goal of reducing barriers to international trade. It looks at IP rights and protection, which is administered by the World Intellectual Property Organization (WIPO), and even summarizes the Trade-Related Aspects of the Intellectual Property Rights (TRIPS) Agreement. This chapter concludes with a discussion on the Doha Declaration and its consequences for poorer nations.

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.

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’.

This chapter studies the time before the World Trade Organization (WTO) was established in order to show how the patent polices of that time contributed to the reaching of the various criteria used as a measure of development. It shows how patents were accepted and used throughout early decades, and identifies the patent policies created to attain development, as well as the events that led to the present patent regime. Several aspects of the early development of patent regimes that can help shed light on the context of intellectual property (IP) issues in the trade regime are also discussed.

The negative effects on exports and FDI flows of an exchange rate misalignment are amplified when the misalignment is among countries that share a regional integration agreement. Such agreements strengthen the well-established relationship between real appreciation and currency crises. We conclude that coordination to achieve real-exchange-rate consistency within blocs is key to macro stability and, a fortiori, sustainable trade agreements.

How East Asian emerging economies will narrow the gap in per-capita income vis-á-vis developed economies remains to be seen. Two policy options are examined: trade liberalization and export promotion. China’s rapid growth, its increasing influence in the region, and relations with neighboring countries will determine the scope and speed of economic liberalization in East Asia.

This chapter studies the second major issue that affects mankind, namely access to food. It outlines the barriers to trade and the tenets of the trade regime, and identifies subsidies as the worst barrier to international trade in agricultural commodities. It shows that international trade barriers affect the agricultural commodities market, and introduces the Agreement on Agriculture (AOA), which helped decrease disputes over agricultural subsidies over a period of nine years.

In this chapter, the UK Chancellor of the Exchequer, Gordon Brown, makes a strong plea for a greater sense of economic and moral responsibility on the part of the wealthier nations towards their poorer counterparts. It is also his conviction that for global prosperity to be sustained, it has to be fairly shared, and, as a success story, cites the institutional innovations of the early post‐war era to create an international architecture to advance this goal. However, the contemporary global economic and political scenario is very different, and Brown advocates a reconfiguration of the role of supra‐national institutions, both to meet the specific needs of global capitalism, and to drastically reduce poverty. More particularly, he proposes a new global consensus that will: (1) better enable the poorer countries to participate fully in the global economy and benefit from it; (2) encourage the international business community to adopt high corporate standards for their participation as reliable and consistent partners in the development process; (3) enable the adoption of improved trade regimes designed to improve the participation of developing countries in decision making; and (4) allow a substantial increase in development aid to nations most in need and willing to focus on the fight against poverty. The chapter concludes by stressing the responsibilities of each of the various institutions of global capitalism and, most notably, those of the business community, civil society, governments of both the richer and poorer countries, and individuals throughout the world.

This chapter examines several issues related to the preserving of agricultural strategies and markets for the benefit of local farmers. It considers the current status of international trade in agriculture, as well as the limit that is placed by the subsidy commitments on the benefits of farmers in developing nations. This chapter also identifies the ways that institutions such as the WTO have contributed to the problem of the global trade regime in poorer nations.

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.