New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

CONSTITUTIONALISM, MULTILEVEL TRADE GOVERNANCE AND SOCIAL REGULATION, Christian Joerges, Ernst-Ulrich Petersmann, eds.

Abstract

In response to demands for greater accountability and responsiveness in global regulatory governance, global administrative law (GAL) decision-making mechanisms of transparency, participation, reason giving, and review have emerged in many global regimes, the WTO system. This paper shows how three aspects of the WTO regime can fruitfully be understood and evaluated in terms of administration and administrative law. With respect to the WTO’s internal governance, the paper argues that simultaneously strengthening the WTO administrative bodies and subjecting them to GAL procedural disciplines would establish better internal institutional balance and enhance the organization’s effectiveness and legitimacy. With respect to the vertical relation between the WTO and its members, it shows how the WTO has secured far reaching adoption of GAL disciplines by domestic regulatory administrations, to the benefit of foreign but also of domestic interests. With respect to the horizontal dimension of the WTO’s relation with other global standard-setting bodies, it argues that the WTO should make compliance with GAL procedures a condition for according WTO recognition to such bodies’ regulatory standards. The paper concludes that, overall, the application of GAL mechanisms to these different facets of trade regulatory decision making will promote accountability and responsiveness to a broader range of interests and a more cosmopolitan normative perspective. It further concludes, from the perspective of legal theory, that GAL is a more suitable and productive conceptual framework for addressing the legal dimensions of global regulatory governance than constitutionalism and other alternatives.

Date of Authorship for this Version

12-2009