Sustaining Multilateralism from the Bench

Abstract

The ever-increasing surge in regional trade agreements (RTAs) over the past two decades has generated growing friction between regionalism and multilateralism in international economic governance, accompanied by serious challenges to the World Trade Organization (WTO) as an institution and a legal system. In this state of play and with the WTO’s negotiating arm trapped in persistent stalemate, several questions have arisen: What role, if any, has been played by the WTO dispute settlement system (DSS) in responding to the challenges posed to the WTO multilateral trade regime by RTA proliferation? What effect have these systemic challenges had on WTO jurisprudence? And how have these challenges shaped the judicial choices made by the WTO DSS in cases implicating substantive and jurisdictional questions located at the WTO-RTA interface? Based on a close analysis of WTO cases involving RTA-related issues, and unique empirical evidence generated through interviews with WTO practitioners having first-hand knowledge of the DSS’s work and the cases examined, this article shows that the DSS has not remained indifferent to the challenges presented to WTO rules and institutions by the increasing economic regionalization. Rather, in the series of RTA-related cases reaching its docket, the DSS has engaged itself in a long and enduring quest for sustaining the multilateral trading system from the bench. This quest has evolved along two parallel and mutually reinforcing trajectories—the substantive and the jurisdictional. These trajectories, when woven together, demonstrate how, in the shadow of textualism, a steady body of DSS jurisprudence emerged, animated by a judicial philosophy of seclusion from and ascendency over regionalism, and aimed at preserving the multilateral legal order in the face of the unabated surge in RTAs. This judicial philosophy, the article concludes, nevertheless entails some challenges and risks of its own, to the WTO and, more generally, to international economic law.