ABSTRACT: WHO DECIDES?
A COMPARATIVE INSTITUTIONAL APPROACH TO INTERNATIONAL TRADE LAW
by Gregory Shaffer
Wing-Tat Lee Chair of International Law, Loyola University Chicago School of Law
This article has two core theses. First, as regards the issue of power in global governance, it maintains that meaningful policy choices need to be made from a comparative institutional analytic perspective since no governance mechanism provides for completely unbiased participation or representation of affected interests. All institutions are imperfect. Resource asymmetries are always present. Thus, while it is important to examine the role of power in global governance, a risk of choosing power as a central analytic concept is that a global governance mechanism will be judged by critics from whatever political perspective without reference to a counterfactual that is subject to power dynamics. This article thus puts forward a comparative institutional analytic conceptual framework for assessing decision-making processes in terms of the relative participation, direct and indirect, of affected parties in alternative institutional settings. To pursue any normative goal, one needs to understand how its pursuit will be mediated differently through alternative institutional processes beset by different dynamics of participation.
Second, from the perspective of the interpretation of legal texts, judicial bodies and legal scholars implicitly make these institutional choices, although they are not explicit about them and often not even aware of them. Where they refer to them, they tend to do so from a single institutional perspective, highlighting the defects of one institutional process without reviewing with the same rigor the defects of the alternative process that they implicitly favor through their interpretation. This article applies this approach to the jurisprudential choices facing the World Trade Organization (WTO), a highly active international judicial system. It shows how, since WTO rules are not fixed in meaning, their application implicitly requires WTO judicial bodies, as any court, to make institutional choices. It then examines how these judicial interpretive choices in trade and regulatory law effectively allocate institutional authority for balancing competing policy concerns to different institutional processes, such as the market, national or international political processes, the court itself, or a hybrid process. Each of these choices is affected by bias in terms of the dynamics of participation within it. As a result, to understand the effects of law’s interpretive choices, one needs to understand these institutional choices, choices that ultimately affect who decides.
- Comparative Law,
- International Law,
- Trade Law,
- International Trade Law
Available at: http://works.bepress.com/gregory_shaffer/1/