International economic law and the quest for universality

Abstract

AbstractThe quest for universality in international economic law has met many obstacles. This article begins from the proposition that there are various ways to conceive of universality in international law, for example whether the rules are accepted widely among states (omnipresence) or whether they are broadly coherent (generality). Homing in on trade and investment law, the article assesses how each of these areas has functioned as a testing ground for these different conceptions. An in-built quasi-universality characterizes international trade law with the WTO as a seemingly centralized universal institution. Such universality, however, has often been achieved through differentiation of rights and obligations (e.g., the Enabling Clause and regional trade agreements). In investment law, attempts at universalization through the construction of centralized institutions have failed. Nevertheless, certain common standards have emerged in this fragmented regime. There is also a debate around the use of the MFN clause as a universalizing tool and renewed efforts to universalize investment law are afoot. More generally, it is clear that there is little appetite for codification of international economic law, and that states wish to control its content through the conclusion of treaties. In the final analysis, this article asks whether it is time to conceive of universality differently, and particularly whether equity and collective preferences should be a more central part of the quest.