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Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective

In private law theory and in international trade law alike, a new strand of scholarship has emerged in 
recent years. This strand is characterized by a focus on market actors who are excluded from deals struck 
by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal 
concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and 
remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice 
concerns and by the realization that rules based solely on the enforcement of bilateral deals may be 
structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this 
literature, I draw inspiration and materials from comparative private-law theory. I then review a range 
of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements 
and show how the use of private law analogies in the context of trade theory yields both analytical payoffs 
and normative caveats. I conclude that the ongoing attempts to identify, within the framework of 
international trade law, actionable remedies in favor of non-parties to trade agreements are analytically 
helpful, but remain distributionally ambivalent and need stronger normative vectors.