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A Global Law Perspective of the WTO

This note attempts to map the relevance of the emerging global law advocacy for the WTO. In this regard, it understands global law as an attempt to describe a growing decrease of the regulatory State and an ensuing increase of private rule-making. Global law intends to generate new thinking about global governance and its patterns of influence and power. Few instances of creeping global law in the WTO are identified, whereas the note concludes with some thoughts on much-needed future research on a range of topics ranging from the role of NGOs to the struggle against intrinsic inequalities of the multilateral trading system.

interpreted in accordance with general international law. 3 At equipoise, WTO is yet another contextualised regime of international law. 4 The WTO is an immediate derivative of the development of global trade, but also the development of an increasingly globalized society. It has resulted from ever-increasing global economic interdependence and has admittedly been instrumental in accentuating this phenomenon. Through its manifest paradigm shift towards higher levels of ruleorientation particularly when performing its executive and judicial functions, 5 the WTO has arguably instigated institutional reform in IOs such as the Codex Alimentarius Commission whose activities may constitute inputs for the WTO activities or which may otherwise be somehow connected to the WTO. This short Note does not aim to delve in the abstract into the current theoretical debates about the exact contours of the concept of global law and its cognates such as postnational law. 6 It understands global law as an attempt to describe a growing decrease of the role of the State in regulatory matters, coupled with a frenetic increase of the regulatory activity of private parties at the transnational level, stemming from the globalization of economic activity. It also considers the concept of global law, much as appealing as it is, to be yet another effort to think anew as to the normative question of future global governance and the morphology of global patterns of power and influence. 7 Indeed, just like debates relating to constitutionalism or constitutionalization of international law; global administrative law; constitutional pluralism and so on, discussions about global law constitute an alternative intimation of the law of the future.
The WTO can be viewed through the lens of most of these endeavours. 8 Having said this, one should note at the outset that one of the trends that results in so much discussion about law's normativity at the global level is the fact that an ever-globalized and interdependent economy also contributes to the creation of more law in general. 3  Everything is legalized from economic transactions to politics at the international level.
Thus, it is the evolution of law that allows for so much debate over the institutions, rules and principles. However, the sources of law multiply and thus reconceptualizing what we consider to be law will alter the way we understand legal science. 9 This Note constitutes a very tentative and humble attempt to map the relevance of global law advocacy for the WTO. Few instances of creeping global law are identified, whereas the Note concludes with some thoughts on much-needed future research on a range of topics ranging from the role of NGOs to the struggle against intrinsic inequalities of the multilateral trading system.

B. WTO Law as an Instance of Incremental Global Law?
Increased globalization of economic activity leads to a shift of regulatory power from public to private and from national to global. 10 Indeed, the WTO as a forum (albeit Statecentered) for the regulation of international economic activity is interesting for a global law theorist because boundaries are blurred between various layers of law and governance: public and private, national, supranational/regional and international are inextricably intertwined. As an institution, the WTO is overtly overwhelmed by such abundance of self-interested pullers suggesting different (sometimes even conflicting) directions and exerting varying influence. In its early case-law, the US -Section 301 Panel recognized that the multilateral trading system is composed not only of States but mostly of individual economic operators and thus one of the primary objectives of the system is to generate and maintain certain market conditions which would allow this individual activity to flourish. It went on to confirm the importance that the WTO and its predecessor, the GATT, had attributed to the indirect impact of legislations on individuals. Thus, the Panel found that, contrary to traditional public international law, in a treaty like the WTO 'the benefits of which depend in part on the activity of individual operators the legislation itself may be construed as a breach, since the mere existence of legislation could have an appreciable "chilling effect" on the economic activities of individuals'. 16 In addition, producer welfare and its protection is an essential raison d'être for the contingent protection agreements of the WTO, that is, the agreements relating to safeguards, anti-dumping and subsidization. Consumer welfare, on the other hand, is a concern only indirectly and no requirement exists as to it being taken into account when However, the Appellate Body also stated earlier that no legal right exists for individuals or NGOs to make submissions or to be heard by the WTO adjudicating organs; this remains a matter of their discretion. 33 When it comes to the empowerment of non-state actors and increased participation, a caveat has to be mentioned at the outset: it appears that access to the WTO decisionmaking is unbalanced to the benefit of global companies and less of transnational private regulators such as professional bodies or standard-setting organizations. This is because of obvious public choice reasons that go beyond the scope of this Note. 34 On the other hand, any calls for more democracy within the WTO shall also be treated with caution.
Recall that the WTO is a reflection of its Members' national systems with all the imperfections that such democracies have in terms of participation, deliberation, inclusiveness and the like. 32 Appellate Body Report, US -Underwear, p. 21. 33 Appellate Body Report, US -Lead and Bismuth II, para. 41. 34 The reference work in this respect is G. Grossman and E. Helpman, 'Protection for Sale', American Economic Review 84 :4 (1994), 833.
As to transnational private regulators, the WTO can only benefit from more intensive cooperation with such constituencies. To be sure, there is a misalignment of incentives in this case, as private bodies have few incentives to cooperate due to their desire to maintain existing rents. As the interest of multilateral trade negotiations is moving towards the identification and elimination of non-tariff barriers almost exclusively, the cooperation of private regulators is critical. Thus, a more inclusive governance of the WTO, open to private parties, seems to be a self-fulfilling prophecy in the field of global commerce.
Finally, with respect to the creation of a more inclusive system allowing for development for all, two things are worth mentioning: first, whereas we have witnessed an increasing integration of the developing world in the global trading system in recent decades, such integration has been highly unequal, with some countries benefitting more than others.
The adoption of redistribution mechanisms and the participation of domestic constituents in the deliberation process of the WTO can be highly informative and, for this simple reason, beneficial. Such initiatives do not necessarily entail direct money transfers from the WTO to specific groups or countries. Global distribution of benefits is perhaps addressed for the first time through the Cotton initiative, involving four cotton-producing countries, Benin, Burkina-Faso, Chad and Mali, but the final deal is yet to be concluded.
More determined action is needed, along with innovative legal drafting.
Arguably, support for development cannot be confined to the introduction of transitional periods during which developing countries and LDCs are exempted from application of certain rules. This has arguably led to the alienation of several Members vis-à-vis the key WTO objective of achieving liberalization and restructuring the domestic market to allow for this. Indeed, transformation of the global regime regulating trade will most likely lead to more responsible governance domestically as well. Global challenges such as climate change, environmental degradation, protection of human dignity and public health cannot wait for long to be addressed. As interdependent regimes will increasingly realize the culde-sac that a solitary stance leads to, they will be looking for reconciling strategies which have to be carefully designed, along with the relevant actors, to enhance consumer welfare. For the WTO and other economic organizations, setting the improvement of consumer welfare as a priority for a modern trade agenda becomes pressing. The same goes for the largely neglected issue of the role of the WTO in enabling trade.