The Comparative and the Critical Perspective in International Agreements

Abstract

ARTICLES THE COMPARATIVE AND THE CRITICAL PERSPECTIVE IN INTERNATIONAL AGREEMENTS Angel R. Oquendot 1. INTRODUCTION The dramatic increase in transnational business has given rise to a new international legal reality. Nations with diverse legal backgrounds have been increasingly creating both substan- tive and procedural law to regulate the abundance of interna- tional economic activity.' It would have seemed natural to start the process of generating a new international legal reality by pondering the differences and similarities of the existing national systems. This kind of approach would have opened up the pros- pect of choosing intelligently among the various options or of combining them in a coherent manner. More importantly, the deliberative effort might have paved the way for a critique of the prevailing paradigms and ultimately suggested previously unimagined possibilities. It appears, however, that there has been virtually no com- parative or critical introspection along these lines. International lawmakers all too often view the creation of a new multinational legal scheme as a mere technical problem, 2 that is, as a question t Associate Professor, University of Connecticut School of Law. Ph.D, M.A., A.B., Harvard University; J.D., Yale University. I am indebted to the following per- sons for helping me develop the ideas expressed in this article: Susanne Bergmann, Owen Fiss, Darcy Galane, Mark Janis, Richard Kay, Detlef Lennen, Tom Morawetz, Richard Parker, Jeremy Paul, Joel Paul, Ren6e Reich-Graffe, Tanina Rostain, George Schatzki. 1. See, e.g., General Agreement on Tariffs and Trade (hereinafter GATT); North American Free TradeAgreement (hereinafter NAFTA). 2. Lucie White rejects the instrumental view that regards procedure as a tech- nical problem . Lucie E. White, Subordination, Rhetorical Survival Skills, and Sun- day Shoes: Notes on the Hearing of Mrs. G, 38 BuFF. L. REv. 1 (1990). She thus chastises proceduralists who disregard procedure's normative dimension. Id. In