An Interactional World Trade Law

An Interactional World Trade LawAbdulmalik M. AltamimiPhD Law Candidate, University of [email protected]

Preliminary PointsWhat is the Purpose of International Law? Law is Applied to International Relations to Primarily Uphold the Ideal of Procedural Fairness.

The Efficacy of Law, Should not be only Based on the Role of Adjudication, but Also on ‘Interaction in the Idea of Law’.

Overview Research Questions. Interactional International Law. Interactional Legal Theory. The WTO Law and Compliance Control (The DSB). Shared Understandings on Compliance. The WTO DSU and Principles of Legality. The WTO and the Practice of Legality. Conclusion.

Research Questions

1.What is the Right Measurement of Compliance with WTO Law? Percentage, Quality and Timeliness of Compliance Actions, or the Bindingness of Rules…

2.How to Best Reconcile the Differences Between Legalism and Economism in the WTO Law Literature?

3.How to Ascertain and Maintain WTO Law Compliance Rules?

Interactional International Law Lon L. Fuller’s Interactional Legal Theory, and Constructivism Approaches to International Relations. Interactionalism Framework: The Three Interrelated Elements Shared Understandings

The Principles of Legality

The Practice of Legality

Interactional Legal Theory (Lon L. Fuller) The Morality of Law and Economic Management. The Eight Constitutive Elements of Legality:

The Limits and Forms of Adjudication. The Values of Interactional Law.

Generality

Congruence between Law and Official Action

Clarity

Promulgation

Non-Retroactiv

ity

ConstancyNon-

Contradictory

Not Asking the

Impossible

The WTO Law and Compliance Control (The Dispute Settlement Body)The DSB Caseload (501) Disputes! It is a Rule-based System.The Process: Consultation, or Panel, Appeal, Compliance Proceedings.Current

Status Timespan

In Consultation

(147)

For Five Years or More (20) Disputes

Settled or Terminated/ Implementation Notified

(185)

Took Five Years or More (35) Disputes

Most Disputed

Cited In

The GATT 1994 exc. Article VI

(296) Disputes

Anti-Dumping Agreement under GATT Article VI

(112) Disputes

Is the WTO Treaty Rooted in SU Reflecting Social Consensus that the Goals of the WTO are Desirable? The WTO Agreement Preamble ‘The Parties to the Agreement, Recognizing…Being desirous of...Resolved...Determined to...Agree as follow...’. The Principles of Reciprocity GATT Art. (XXVIII bis), and Non-discrimination GATT Art. (I ) and (III). Shared Legal Understandings: ‘The Obligation of Conformity’ The WTO Agreement Art. (XVI:4), The DSU Art. (19:1), (22:1), (22:8).

Do the DSU Meet the Principles of Legality? Generality: What is the role of the DSB? (Adjudicative, Allocative, or Both)? (DSU Art. 1-3) versus (DSU Art. 22.6).

Clarity: The Pre–panel (DSU Art. 4 -5), and the Post-ruling procedures (DSU Art. 21-23) Japan, Mexico, and Ecuador Proposals?

Promulgation: by the DSB and Member States.

Is there a Continuous Practice of Legality to Shape the Actions of WTO Members? Inclusiveness Problem: Powerful States and the WTO Law. (Shaffer 2015). Congruence Between Formulation and Implementation:• Practice of Legality in and Outside the DSB. e.g. the Trade Policy Review Mechanism, and the Advisory Centre on WTO Law.• Direct Effect of WTO Law?• Developing and LDC Capacity Limitations. The DSU Interpretations.

Conclusion Interaction in the Idea of WTO Law e.g. (The WTO Agreement on Sanitary and Phyto-sanitary Measures (SPS):•‘The simple existence of courts (like the WTO dispute settlement) does not prove that the or a rule of law exits. Actors, including states officials, can be governed by law without needing courts. To speak of the role of adjudication in the ‘enforcement’ of ‘binding’ rules obscures what the WTO actually does in helping to provide transparency, consensual knowledge, and legitimation for the regime.’ Wolfe (2005) .

Thank You!

Abdulmalik M. Altamimi PhD Law Candidate, University of Leeds

[email protected]

Selected Bibliography1) Lon L. Fuller, The Morality of Law (revised edn, Yale University

Press 1969)2) ----------------, ‘Human Interaction and the Law’ (1969)

American Journal of Jurisprudence 13) ----------------, ‘The Forms and Limits of Adjudication’

(1978) Harvard Law Review 3534) Jutta Brunnée and Stephen Toope, Legitimacy and legality in International

Law: An Interactional Account (Cambridge University Press, 2010) 5) Robert Wolfe, ‘See You in Geneva? Legal (Mis)Representations

of the Trading System’ (2005) European Journal of International Relations 339

6) Julien Chaisse, Deconstructing the WTO Conformity Obligation: A Theory of Compliance as a Process’ (2015) Fordham International Law Journal 58 

7) Gregory Shaffer and others, ‘Can Informal Law Discipline Subsidies?’ (2015) Journal of International Economic Law 711

8) Gregory Shaffer, ‘How the World Trade Organization Shapes Regulatory Governance’ (2015) Regulation & Governance 1

9) Joost Pauwelyn, ‘The Rise of Informal Rules and International Standards and How They May Outcompete WTO Treaties’ (2014) Journal of International Economic Law 739