Journal of International Economic Law Advance Access originally published online on October 30, 2008
Journal of International Economic Law 2008 11(4):899-925; doi:10.1093/jiel/jgn036
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© Oxford University Press 2008, all rights reserved
Saving the WTO from the Risk of Irrelevance: The WTO Dispute Settlement Mechanism as a ‘Common Good’ for RTA Disputes
* Associate Professor, School of Law, Singapore Management University (on leave from The University of Hong Kong). E-mail: gaohenry{at}gmail.com.
** Associate Dean for Academic Affairs and Professor of Law, the University of Hong Kong. E-mail: chin.leng.lim{at}post.harvard.edu.
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Abstract |
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Over the past few decades, Regional Trade Agreements (RTAs) have proliferated globally. Such proliferation of RTAs created a renewed sense of urgency for the WTO to take action in order to avoid the fate of being eclipsed into irrelevance. There are several options for coping with the challenge. Theoretically speaking, the best approach would be to heighten the level of ambition in global trade talks to reduce all trade barriers to zero so that the discriminatory effect created by RTAs could be reduced or even eliminated. In reality, such an approach would be impossible for well-known reasons. The next best option would be for the WTO to draft ‘best practices’ or model RTAs to minimize the effect of further fragmentation created by different breeds of RTAs. The problems with this approach are first the resource constraints of the WTO, second the bounded rationality of human beings, and third, whether a ‘one size fits all’ approach would work. Yet another option offered is to strengthen the WTO's monitoring system of RTAs, with the 2006 rules on transparency being the most recent example. Unfortunately, as the Committee on RTAs (CRTAs), the main enforcer of the monitoring rules in the WTO, has been plagued with ineffectiveness because of the consensus rule, heightened monitoring rules would not be of much help either. In this article, we will discuss a fourth option, i.e. to use the WTO dispute settlement mechanism as a venue for resolving RTA disputes. The rationale underlying this initiative is that, by using the WTO dispute settlement system for RTA disputes, the Members will be able to develop a body of ‘common law’ on RTAs, which would then either form the basis of multilateral rules on RTAs or harmonize RTAs. This way, we can try to minimize the harmful effect of RTAs, and indeed turn RTAs from ‘stumbling blocks’ into ‘building blocks’ of the multilateral trading system.