3. A Two-Tier Approach to WTO Decision-Making
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43 3 A Two-Tier Approach to WTO Decision-Making THOMAS COTTIER I. Background A. Matching Substance–Structure Pairings Institutions, structures, and procedures are not ends in themselves. They serve and facilitate the attainment of substantive goals. Domestic political processes are shaped by constitutional law with a view to achieving and securing fundamental goals of justice of a given society. To some extent, these goals are equally defined in constitutional law. The situation is no different for international law and organizations. Decision-making processes serve and facilitate the attainment of legitimate outcomes commensurate with the substantive goals of the organization. Indeed, outputs and the legitimacy of outputs are directly related to the decision-making process and institutional rules through which outputs are generated. Thus structures and procedures need to be shaped in a manner conducive to achieving substantive goals. They need to match and be in line with each other. They are mutually dependent. The authority and legitimacy of the institution relies,in other words,on appropriate substance–structure pairings.1 With the evolution of substance, structures and procedures equally need to change, adapt, and evolve. The World Trade Organization (WTO) is not immune from needing an appropriate substance–structure pairing. Members need to review the relationship between substance and structure, and assess reform options. Appropriate structures are, as much as trade liberalization, a means to an end: a means to successfully achieve the goals of the organization, depicted in the preambles of the various agreements. In a spirit similar to that of the General Agreement on Tariffs and Trade (GATT) 1947, Member States recognized in the preamble to the Marrakesh Agreement Establishing the World Trade Organization that relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking to protect and preserve the environment and to enhance the means of doing so in a manner consistent with their respective needs and concerns at different levels of economic development.2 This preamble recognizes that international trade regulation serves different and partially competing goals. It is required to strike a balance between different objectives and maximize the attainment of them. This requires institutions and processes that can cope with these complexities. The authority of the multilateral trading systems depends on it, and structures and procedures are of key importance.3 The challenges are well-known. They are constitutional in nature and entail institutional issues within the WTO, as well as horizontal and vertical problems relating to other fields of international and domestic law, respectively. Within the WTO the relationship between the political and judicial process is at stake. This relationship includes the proper role and function of the Secretariat vis-à-vis the political and judicial. It covers the effectiveness of decisionmaking , the role of stakeholders, and the relationship between trade rounds and regular activities in the process of law-making. Horizontal issues include the problem of fragmentation and coherence in relation to other international organizations and domains of international law. Vertically, the relationship between WTO and domestic law and the impact of WTO law in trade policy formulation, implementation, and enforcement within Members are predominant concerns. This includes the relationship between WTO law and regional/ preferential trade arrangements. The latter are supposed to operate within the bounds of the multilateral framework but increasingly suffer from inflation and non-compliance with WTO rules. A number of questions must be addressed under the rubric of WTO reform. How can we achieve a better balance between law-making and judicial refinement of WTO law in and by case law? How can we achieve better policy coordination in addressing borderline issues among trade and other fields governed by other institutions, such as culture, human rights, investment protection, finance, monetary affairs, and development assistance? How do we make sure 44 Part II Decision-Making in the WTO that WTO rules are taken seriously at home, by legislators and domestic courts alike? How can we, in turn, ensure that rule-making responds to the needs for transparency, accountability, and legitimacy? What are the possible legal tools to bring about a proper, well-balanced system? How can the WTO best be structured to cope with these issues and challenges? It is striking...


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