Socio-Legal and Theoretical Perspectives on International Economic Law
Organised by UCL and University of New South Wales
|Dr Lorand Bartels (University of Cambridge)
||Between Jura Novit Curia and Non Ultra Petita: The Power of International Courts and Tribunals to Apply the Law
All courts and tribunals claim a power - and some a duty - to identify and apply the law as they see it, regardless of what the parties to the dispute might say. At the same time, they are also bound not to make determinations on points beyond those which they have been asked to make. This poses problems for all courts and tribunals, but it is a particularly sensitive issue for international courts and tribunals, which are established on the basis of the consent of states. How much scope do these courts and tribunals have to ignore what both parties might claim? Are they really entitled - or even obliged - to make out defence on behalf of respondents, given that there might be good tactical reasons that a respondent did not make any such defence? This presentation considers these issues in light of the jurisprudence of the International Court of Justice, the WTO tribunals, and investment tribunals, taking into account the special features of each forum.
|Prof. Ljijana Biukovic (University of British Columbia)
||Where is the New Geography of Trade Really Taking Place?
I propose to use of law and geography as an analytical framework to examine the socio-legal aspects of trade and aid agreements between developing countries. The geographical perspectives of trade are obvious; markets are defined as spaces where merchants and consumers meet and where goods and services are traded. Bandwagons of trade have been powerful factors of legal standardizations spreading norms and values of Western traders to local communities around the world with the cumulative affect of the formation of international trade rules and standards on the basis of neoliberal economics and the limitation of sovereign territoriality (Twining, 2000, Hirsch, 2008, Lang, 2012, Picker, 2013). Thus created geography of international trade has been defined by the centre-periphery relationship between the North and the South. Consequently, trade and investment agreements between developed and developing countries have facilitated regional reinforcement of international legal principles without considering specific local content.
In June 2004, at the eleventh United Nations Conference on Trade and Development (UNCTAD XI), then Brazilian President Lula de Silva former UN Secretary-General Kofi Annan chaired a special session “The New Trade Geography: The Role of South-South Trade and Cooperation”. Lula pointed out that developing countries have become more engaged in bilateral and regional trade with each other and that the number of bilateral investment treaties involving developing countries as investors has also increased. This shift in the geography of international trade suggests a shift in social and political underpinnings that promote mutual benefits of all developing countries (UNCTAD, Accra Accord, 2008).
Law and geography is one of the areas of legal scholarship that considers spaces as products of power and ideology in a particular social and political context (Lefebre, 1979) and discusses the role of people and intuitions in shaping spaces by law. I propose to employ mapping as a methodology of law and geography to examine the ways in which markets/spaces and laws/legal institutions interact. Legal geographers and law and society scholars argue that mapping is not about defining the territorial limits of law but in fact about un-mapping our assumptions about markets that are embedded in particular ideologies (Blomley 2001, Osofsky 2007, Landauer, 2010-2011). I challenge the assumption that trade and investment agreements between
|Prof. Chi Carmody (University of Western Ontario)
||Fairness in WTO Law
The idea of fairness is a recurrent one in international economic law and relations. By and large, however, commentators have failed to provide a structured understanding for this vital concept. This talk proposes a theory of fairness as part of a broader theory of justice, suggesting that fairness is a part of justice, but not the whole of it. Rather, justice may be thought of as a combination of equality plus fairness (i.e. justice = equality + fairness), with the proviso that in any complex system of legal rules, equality must be greater than, or conceptually prior to, fairness (i.e. equality > fairness). In the latter half of this talk, a look is taken at how these conceptual relationships are expressed in WTO law.
|Dr Matt Eagleton-Pierce (SOAS)
||The Wedding of Materialism and Symbolism in the Study of World Trade Law
The study of world trade has historically been underpinned by rationalist assumptions of material forms of power. Power-as-property, in terms of market capacity, is often treated as the first approximation of bargaining strength in negotiations, with a particular stress on qualities of coercion and domination. In recent years, however, students of both international political economy (IPE) and international economic law (IEL) have turned to the potential benefits of a richer sociological approach to understanding the world economy, including a focus on the role of knowledge and ideas. However, the relationship between these two major starting points often assumes an oppositional, compartmentalised form. This paper seeks to contest the substantialist philosophy undergirding such thinking and, instead, advance a relational framework of analysis which probes how material structures are intimately intertwined with symbolic structures. The argument takes Pierre Bourdieu’s approach to symbolic power – the (mis)recognition of legitimation – as a way to critique, dissolve, and overcome such unhelpful conceptual dichotomies in the evaluation of power. Understanding how these intricate, often socially draining, processes of symbolic power work is important for several reasons. In one sense, it helps to explain how and why certain economic interests, and the social practices that encompass them, become recognised as ‘acceptable’ or ‘universal’, rather than ‘arbitrary’ or ‘particular’. Subsequently, with the privileging of certain interests over others, Bourdieu suggests that the contests over such power shape the material distribution of resources, an often uneven process with lasting effects over time and space. The struggle over symbolic power is, at the same time, also a struggle over groups and their capacity for mobilisation. To empirically ground the discussion, the paper explores how symbolic power can be theorised and tested in relation to select talks in the World Trade Organization (WTO).
|Prof. Frank Garica (Boston College Law School)
||Towards a Pluralist Approach to Global Justice
|Prof. Moshe Hirsch (Hebrew University of Jerusalem)
||The Socio-Cultural Dimensions of the European Financial Crisis
Following a brief discussion on sociological aspects of financial markets and regulation (such as 'herd behavior' and conformity), the paper will focus on sociological factors affecting the financial and legal response measure undertaken by European Union and the European Central Bank (ECB).
Various developments in the European financial crisis reflect certain sense of solidarity and European common identity but they also expose latent stereotypes and fundamental socio-cultural differences. Collective narratives regarding the root causes of the crisis influenced public opinion and financial-legal measures adopted by national decision-makers and the EU.
The financial-legal measures aimed to resolve the debt crisis reflect certain social values prevailing in the dominant Eurozone countries. Though the economic response to the Greek crisis could have included expansive measures, Germany's collective memory of the traumatic inflation during the Weimar Republic period led the ECB to emphasize the object of price stability and reject expansive measures in the first stages of the crisis. The series of 'bailout agreements' concluded between Greece and the ECB and the EU in 2011 and 2012, and particularly the 'Memorandum of Understanding on Specific Economic Policy Conditionality' relating to austerity measures and fiscal discipline (including rigorous monitoring mechanism) reflect values widely held in the German and some other northern-European societies. These measures were also accompanied by various negative stereotypes of the EU 'Club-Med countries'.
|Dr Andrew Lang (LSE)
||Governing 'As If': The Provisional Settlement of Knowledge Controversies in the WTO
This lecture explores the relationship between practices of knowledge production and legal decision-making in the field of international economic law. It explores the 'practices of objectivity' by which certain forms of economic knowledge - whether tacit or explicit, formal or informal - are certified, and become the accepted basis for governance through law. It draws on the work of Jasanoff and Riles to identify a mode of 'governing as if': a pragmatic mode of governance through knowledge, which can be read against late twentieth century controversies over the socially constructed nature of scientific knowledge. The analysis is developed through a study of the benchmark problem in the field of subsidies regulation, as well as other areas of WTO law.
|Prof. John Linarelli (Swansea University)
||Justice, Luck and Systemic Risk: Regulating International Finance
Risk has a ubiquitous quality in an interdependent world. Consider the chains of individual consumer and financial transactions widely attributed with bringing about the 2008 financial crisis, the effects of which remain with us to this day. The financial crisis brought attention to a tragedy of the commons in capital markets, in which market participants, from the first-time home buyer, to the most sophisticated market actors on Wall Street and in the City of London, acted in ways which were beneficial to them individually, but which together caused substantial harm to others. Some of the participants acted in ways in which their actions alone made no or what philosopher Derek Parfit calls an imperceptible difference, but when their actions are combined with the actions of others, they contributed to substantial harm. Some of the more sophisticated market participants should have known better. What is true regardless of one’s financial sophistication is that the effects of these transactions is substantially attributable to the structure of global capital markets, a structure determined by a mix of private and public institutions and a good deal of domestic law, but at the international level mainly a mix of political arrangements and so-called soft law. The institutions that make the global capital markets what they are permitted market participants to take actions in which their own market risk was not the only risk presented. The other far more serious risk was that of systemic risk, which is risk to the financial system and ultimately to the global economy.
Substantial consensus exists on the point that ordinary market risk is not morally arbitrary, in the sense that people who make market decisions, to paraphrase Ronald Dworkin, “take a gamble” and are subject to what he calls option luck. Considerations of desert and responsibility may be relevant when it comes to market risk, but they are irrelevant when it comes to systemic risk. Systemic risk has the potential to impose loss on someone even if they had nothing to do with the transactions causing the loss. In the context of the global financial crisis, I could have been entirely out of the market, not entering into any mortgage, not involved in financial markets in any way, and yet the losses cascading systemically through the financial system and the economy as a result of the actions of others can affect me in very negative ways.
Collective harm cases of this kind beg for an institutional response. No single action of any market participant will be sufficient to mitigate systemic risk. Risk mitigation requires substantial coordination and ex ante regulation by central authorities. It is a problem of structure, about how institutions limit the range of individual actions to mitigate systemic risk. Problems with how institutions are structured are most centrally problems of justice.
The aim of this paper is to offer a normative framework for regulating international financial markets based in theories of equality. It is intended to offer an alternative to economic approaches which dominate policy discourse. It is political philosophy, not social science or legal analysis, so my focus is on moral decision procedures and ideal theorising around principles which might be employed to structure or clarify understandings of the institutional normative orders governing financial markets. I work through three moral decision procedures: consequentialist, luck egalitarian and a procedure based in a contractualist form of democratic equality. I do not draw any conclusions in favour of any single procedure. The paper is about getting clear on the strengths and weaknesses of alternative approaches. I do conclude that consequentialism is the least attractive of the options.
|Prof. Amanda Perry-Kessaris (Kent Law School)
||Economic Sociology and International Economic Law
This paper focuses on ‘law and development’, an aspect of international economic law that is of ever-greater significance and ever-diminishing coherence, and argues that economic sociology might offer it a lifeboat. Academics and policy-makers cling too tightly to their ‘legal’, their ‘economic’ and their ‘social’. They stand with their backs to each other, preaching towards their disciplinary comfort zones. Since real life is an econo-socio-legal tangle we should turn around: pool the concepts, facts and values that are characteristic of law, economics and sociology. We can then think, for example, of production and consumption not as 'the economy', but as social activities with econo-legal dimensions; of laws and institutions not as ‘the legal’ but as econo-social constructs; and of actions and interactions not as ‘the social’ but as econo-legally significant aspects of social life. However, plenty of law and development thinking, and practical legal development, has been, and will continue to be, done using other approaches. So if a new econo-socio-legal approach to development is to become widely applicable, it will need to be communicated in accessible, including visual, forms.
|Dr Greg Messenger (Oxford University)
||The Concept of Public Body in the Agreement on Subsidies and Countervailing Measures: Questioning the Public/Private Divide in WTO Law
The regulation of subsidies at the WTO is of particular importance, structuring the relationship between governments and markets of WTO members. Despite the wide scope and importance of the Agreement on Subsidies and Countervailing Measures ('SCM'), there exist serious theoretical deficiencies underpinning certain key terms in the SCM Agreement. This paper examines the definition of ‘public body’ under the SCM Agreement as one such example. Moving beyond the competing interpretations offered at the panel and Appellate Body reports in the US – AD/CVDs (China) dispute,this paper suggests that the underlying conceptual foundations of the term are inadequate and calls offers tentative suggestions to remedy this failing.
Commonly, debates over the appropriate scope of international regulation have traditionally related
to the transfer of sovereign powers from States to International Organizations
(the vertical division
of powers) or alternatively, over the division of powers between different international institutions
(the horizontal division of powers). The SCM Agreement offers an example of another area of
potential confusion: the division between public and private spheres of action. Developments at
both the domestic and international levels are presenting new challenges for WTO law to face. At
the domestic level, many States are increasingly liberalising the provision of public services, blurring
the line between public and private.
At the international level, the distinction between public State
action, and private commercial action is also becoming increasingly blurred.
The debates over the definition of what constitutes a 'public body' for the purposes of the SCM
Agreement at the WTO is an indicator of the difficulties present in such an exercise This would have
more in common with debates at the domestic level over the proper role of the 'State' and the
'market', or over the 'public' sphere and the 'private' sphere (including how we begin to define such
terms). Such debates could pose a serious challenge to the WTO that has until now been
preoccupied with the relationship between itself and its Members or between itself and other legal
regimes in international law. More profoundly, if we are to maintain a distinction between the public
and private at an international level, how are we to understand these terms?
Debates over the public/private divide are present within public international law; however, they
have often focussed on the role the divide plays in questions of rights protection.
raised here have a wider implication than only on human rights law and are pressing: increasingly
domestic liberalisation compounded by internationalisation of commerce potentially restricts the
reach of hitherto effective institutions such as the WTO (the focus of which has been principally with
public action). While we may look to the debates in the domestic context,
there are considerable
differences. In domestic law, it is the State that must justify its existence and the scope of its powers,
not the individual; by contrast, international law presupposes the existence of the State as
and it is for other types of actor to justify their legal personality.
This paper is first and foremost a call for greater engagement with the theoretical underpinnings of subsidy regulation. By identifying the contested foundations of the public-private divide in subsidies regulation at the WTO, it suggests a wider important for the debate, indeed moving outside of the WTOs purview. The paper concludes by offering a tentative approach to examining the public-private divide within an international context by drawing on classical models of citizenship.
|Dr Alex Mills (UCL)
||The interests of international investment arbitrators
One of the principle challenges which has been raised concerning the legitimacy of international investment arbitration concerns the possibility that it is ‘biased’ (that it favours certain interests over others) through systemic design. This is particularly associated with the claim that investment arbitrators are likely to favour investor interests over host state interests, because investment claims are always initiated by investors, and encouraging such claims will advance their own professional and economic interests. This presentation will look more closely at these claims, arguing that the interests and incentives of individual arbitrators should not necessarily be conflated with those of the community as a whole. However, since the views of presiding arbitrators are generally decisive when it comes to difficult questions of law or fact, this does suggest two ‘pressure points’ in investment arbitration. First, questions concerning the legitimacy of mechanisms for the appointment of presiding arbitrators, particularly the powers of appointing authorities. Second, the risk that, while presiding arbitrators may have an interest in perceived neutrality, such interests may manifest themselves in a tendency to ‘split the difference’ between the parties on difficult legal questions, rather than resolving those questions in favour of the policy balance adopted in the underlying investment treaty.
|Dr Gillian Moon (University of South Wales)
||Tradewinds as 'Headwinds'? Combating Racial Discrimination Using Discriminaroty Trade and Investment Measures
Racial and ethnic discrimination is present in most societies. Unlawful discrimination is a factor in the majority of situations in which people are deprived of their economic, social and cultural rights. It is for this reason that successive UN High Commissioners for Human Rights (including the present High Commissioner, Navi Pillay) have made the elimination of discrimination a first priority.Long-standing, entrenched discrimination typically leads to lower levels of education, poorer health, shorter life expectancy and greater poverty. It is notoriously difficult to break this cycle. Groups which have been the victims of entrenched discrimination become differentially affected by otherwise neutral measures, because poverty, ill-health and inadequate education become characteristic of them.
Aware of this dynamic, international human rights law requires States to take positive action to break cycles of entrenched discrimination and disadvantage. Article 2(2) ICERD imposes an immediate obligation on States to introduce ‘temporary special measures’ to bring affected racial or ethnic groups up to a position of equality with others in their enjoyment of human rights.
Some of the special measures which States might use to combat entrenched racial discrimination and to reverse its consequences fall within the compass of international economic law. For example, where the groups affected are small and resource-poor farmers, States might raise tariffs for food staples above bound levels when world prices are low. Similarly, States might impose local content requirements to support local indigenous industries. Special measures like these can be particularly effective in improving the economic circumstances of affected groups and would be readily justifiable on that ground.
However, such measures run counter to the core principle of non-discrimination in international economic law generally and in WTO law in particular. Moreover, further and tighter restrictions on the use of trade and related investment measures which are seen as protective, including agricultural tariffs, are being negotiated in the Doha Round.
Nor are such measures likely to fall within the general exceptions in WTO law. WTO-illegality has a chilling effect on the willingness of States to use trade-related measures for non-trade purposes, regardless of their aptness and effectiveness for those purposes. Indeed, measures of this kind may be essential for combating entrenched racial discrimination and reversing its detrimental consequences, outcomes which are themselves essential for the realisation of human rights.
This paper considers how the two discrimination law systems might co-exist productively.
|Dr Martins Paparinskis (UCL)
||Investment Law and International Law Analogies: Human Rights, Third Parties, and Diplomatic Protection
Investment law partly borrows and partly diverges from pre-existing regimes of international law, and an interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures of investment law. Since investment law may be viewed as a normative progeny of multiple regimes of international law, the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law. The argument will be made in three steps. First, in order to situate investment protection law within the broader international legal order, one might draw upon multiple legal techniques from established legal regimes. The models of direct rights, beneficiary rights, and agency may be suggested as the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection. A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law. The second step of the argument will apply the different perspectives identified earlier to aspects of interpretation and law-making in investment protection law. Thirdly, certain elements of the law of State responsibility will be considered, again from the three different perspectives identified before. The concluding remarks will briefly and tentatively suggest further scope for operation of analogy, particularly regarding imposition of obligations on investors. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.
|Dr Emily Reid (University of Southampton)
||What is the WTO for? Ideology and the Pursuit of Sustainability
This paper engages with the inherent contingency and contestability of the ideological assumptions which have driven WTO decision-making. Through the lens of the principle of sustainable development, the plurality of values affected by WTO decision-making are exposed. The principle of sustainable development links the pursuit of economic, social and environmental interests, notwithstanding their frequent pursuit through specialist legal orders. It requires a balancing of interests; no single pillar takes automatic priority. In addition to carrying global force, through international commitment, these interests manifest themselves and vary according to local culture. Thus the pressures pertaining to the realisation of sustainable development are both top down and ‘bottom-up’. The binding dispute settlement procedure of the WTO means it occupies a unique space in this context, particularly as regards the adjudication of the line to be drawn between economic and non-economic interests. Yet the WTO Institutions reflect the agenda of the WTO, and work within a particular context: they have a limited mandate which is vulnerable to pre-conceptions and assumptions which inevitably impact upon its decision-making.
The WTO’s potential normative force regarding the balance between economic liberalisation and non-economic concerns means that failure to recognise and confront the underlying agenda, the preconceptions brought to the interpretation and application of WTO rules (and consequently their inter-action with other regimes) permits an unbalanced development of the law which does a disservice to the will of the international community as expressed in the commitment to sustainable development, as well as in numerous human rights and environmental treaties.
This raises a number of issues explored within this paper:
- What is the purpose of ‘economic liberalisation’? The WTO preamble refers explicitly to the ‘objective of sustainable development’, but does not explain the nature of that objective, or even whether it is a WTO objective as opposed to a general international objective. Identification of the purpose of economic liberalisation is central to recognising, unpacking, and confronting the pre-conceptions driving decision-making by the WTO institutions and also to establishing certainty and legitimacy in the line drawn.
- Accountability and legitimacy of the WTO and its decision-making are tied to its institutional framework which is relatively weak, particularly in terms of engaging with contemporary (non-economic) concerns, and its specific (limited) agenda. These are ill-suited to engaging with the inter-action between different legal orders and prima facie conflicting contemporary values and commitments.
- The WTO is essentially a treaty based organisation of international law, established by state consent, operating a state centred regime. Yet there is a question as to the relevance of this state centred organisation in light of both its own apparent decision-making disfunctionality (e.g. Doha Deadlock) and also emerging international and trans-national regulatory developments and market influence itself.
- What is (or should be) the role of the WTO?
It is not certain that these issues can be resolved for the WTO, but it is certain that without addressing them, the WTO is likely to become increasingly marginalised, and questions regarding its legitimacy and relevance will intensify. This paper explores these issues and in doing so examines the applicability of key contemporary narratives of public administration.
|Dr Lisa Toohey (University of New South Wales)
||Narrative and Coherence: A Constructivist Study of the WTO Secretariat
The Secretariat of an international organization is a nearly-invisible entity in formal studies of international law, and this is particularly so of the Secretariat of the World Trade Organization (“the WTO”). As a consequence, scholars tend to overlook the very influential role that the Secretariat and its personnel have on the development of legal rules and norms – far beyond the formal, passive role that is ascribed to it. This paper will use constructivist approaches such as that of Finnemore to explore the WTO Secretariat as an active and multi-dimensional entity with distinct and sometimes competing narratives about the behaviour of states in the international trade system.
The paper will explore the role of the Secretariat as part of the ‘social context’ of WTO Member states, particularly developing country members that rely on the Secretariat for assistance in accession and the early stages of their membership, and the role of the Secretariat in creating context in dispute settlement. It will then consider the practical possibilities that this reonceptualisation opens up - for if it is accepted that it generates narrative, then why not give the Secretariat an explicit ‘coherence mandate’ in accession, and even dispute settlement? While this is certainly a bold reform, and one that would be difficult to achieve in the present negotiating environment, I argue that it would have important systemic benefits, for the WTO and for international law in a fragmented international environment.