The aim of this Handbook is to place international trade law in a broader context, and to analyse the effects of the world trading system on other systems of law and vice-versa. The contributors come from diverse legal backgrounds and represent a range of experiences. This is reflected in the collection of essays that ‘examine and critique’ international trade law, while analyzing the implications of the expansion of the international trade regime for different actors, other areas of law and policy, and society as a whole.
Following a brief editorial introduction, the Handbook is divided into five parts, which (I) sets the world trading system in its economic and institutional context, (II) deals with the substantive law of international trade, and (III) covers dispute settlement. These parts are complemented by two others that concentrate on (IV) ‘trade and …’ topics and (V) the wider framework in which the world trading system works.
Part I on the economic and institutional context leads off with a chapter by Winham who places the world trading system in its economic and policy context. Jackson then explores the evolution of the world trading system within the legal and institutional context. His insights on decision-making and the nature of the WTO's dispute settlement system provide a useful introduction to the next chapter on the place of the WTO in the international system. McRae considers the WTO as an international organization, noting in particular its relationship to the UN system and to regional economic arrangements before engaging with the constitutionalism debate. According to him, the WTO may be ‘unremarkable as an international institution’ but everything changes when it comes to its compulsory and binding dispute settlement system.
Moving on to Part II on substantive WTO law, Kuijper's opening chapter is a masterly description of the WTO's institutional structure. Particularly insightful is his handling of the issue of a non-plenary board or executive body, for which he advocates the ILO Governing Body as a model. He also supports a clearer definition of the powers of the WTO Director General and the Secretariat, noting that the latter organ is increasingly forced to outsource a number of activities to other international organizations, due to the constraints placed upon it by the Members. Ortino's chapter concentrates on a few select issues stemming from the ‘incomplete contract’ character of GATT 1994. Lang's chapter complements Ortino's, with its emphasis on the incomplete character of the GATS, and in which he emphasizes the imperfect and unspecified body of knowledge that informs the Agreement. Consequently, negotiators lack basic data to guide them, regulators have not yet bought into the GATS concept, and there is continuing uncertainty about the adjudication of services disputes.
Mitchell and Voon focus on certain significant developments under the TRIPs Agreement, including access to medicines and public health, the extension of geographical indications, the influence of WIPO on TRIPs, and the issue of free trade agreements with TRIPs-plus obligations. Two further chapters round out this part. One by Marceau and Trachtman focuses on the scope and application of the SPS and TBT Agreements. The other by Gantz deals with the common features and salient legal issues arising from the presence of regional trade agreements in the international trading system.
Part III brings together a solid collection of essays on the WTO dispute settlement system, beginning with Hughes, who deals with the institutional aspects. She remarks on the objective of the quasi-judicial system, designed to preserve Member control of the process, and the importance of the Appellate Body's principle of collegiality in ensuring the consistency of jurisprudence and the irregularity of dissent. The next chapter by Van Damme covers issues of WTO jurisdiction, applicable law, and interpretation. Yanovich and Zdouc document some of the most significant procedural and evidentiary issues before panels and the Appellate Body, including, in the case of the latter, the lack of remand power, which has often led to it ‘completing the legal analysis’. Bohannes and Lockhart offer a further procedural insight with their accomplished essay on ‘standard of review’ in WTO dispute settlement. Eeckhout provides a brief, if somewhat incomplete analysis, of WTO remedies and compliance. Finally, Davey examines the limits of judicial process from the perspective of judicial/non-judicial approaches, ambiguous treaty text, potentially ‘wrong’ cases involving sovereign issues, and judicial activism in the face of an increasingly weakened norm-setting mechanism.
The section of the Handbook that focuses on the WTO in a broader context comes in Part IV, with a series of contributions linking trade with development (Nottage), the environment (Bodansky and Lawrence), labour (Marceau), human rights (Bartels), health (Atik), investment (Neufeld), and competition policy (Matsushita). Of these, the most interesting chapters are those by Marceau and Bartels. In her chapter on trade and labour, Marceau analyzes consecutively: those WTO multilateral and plurilateral trade disciplines (e.g. procurement) that refer to, or provide policy space for, labour concerns; the extent to which WTO Members can enter into regional/plurilateral arrangements that further trade and labour objectives; and the use of unilateral trade preference agreements to sanction compliance with labour standards. Bartels' chapter on trade and human rights focuses mostly on the negative strand of thinking that governs the relationship between the two discourses. He remarks on the costs and redistributive effects of trade liberalization in terms of the realization of basic human rights. This is followed by a discussion of the threat trade liberalization poses for domestic regulatory autonomy, based on the principle of non-discrimination. Bartels' analysis is complemented by his examination of the institutional responses to trade and human rights linkage, in which he remarks upon the belated interest of the OHCHR in the threats that trade liberalization poses for human rights protection.
As part of the wider framework, Part V brings together a miscellany of issues on the WTO and civil society (Orellana), the interplay of international trade law, UN law and collective security issues (Boisson de Chazournes and Boutruche), and the regulation of multinational corporations and international trade law (Forcese). While Orellana's chapter provides a solid account of the role of civil society from a historical and institutional perspective, which he then relates to the WTO, the chapter by Boisson de Chazournes and Boutruche takes the concept of fragmentation in the international legal order and explores the relationship of international trade law to the system of collective security. Two sections of this chapter are noteworthy. One is the focus on the need to integrate international trade and economic law principles, such as transparency and non-discrimination, into the reconstruction of war-torn economies and UN-administered international territories. The other is forward-looking to the role of the WTO and international efforts to discipline the trade in small arms. Forcese's examination of corporate accountability and its implications for international trade resonates with the current debate in international society on corporate social responsibility. He takes this a step further when discussing the potential role of corporate accountability in conditioning market access.
Weiler's concluding chapter in the Handbook has an element of the stargazer. He questions the constitutional future of the WTO, ponders the ongoing debate about global and regional trade, and examines the national treatment standard at the doctrinal core of the GATT/WTO system. It is more like a series of musings than a conclusion, which might otherwise draw together the different strands running throughout the book, and set its seal on the project.
Overall, this is an impressive collection of essays from a diverse group of scholars, practitioners, and government officials. The breadth and depth of the individual chapters are potentially appealing to both the uninitiated and the experienced reader. In both respects, a particular asset is the selected bibliography, which appears at the end of each chapter, and is a valuable aid to further reading and research.
Even so, the publication has some deficiencies – for example, its lack of a common thread. While many of the contributions implicitly refer to, or hint at, the issue of fragmentation as the enduring feature of international trade law, only Boisson de Chazournes and Boutruche explicitly make the association. Van Damme also makes some reference to the notion in her discussion of the principle of harmonious treaty interpretation as a means of avoiding normative conflict.
Another shortcoming arises from the internal structure of the book, including for example a limited amount of cross-referencing between individual chapters, and considerable variety in the scope and depth of treatment of individual topics. Some contributions consist of a stock-taking exercise. Others are more forward-looking, offering new insights into the international trade regime, or advancing proposals for improving the relationship between international trade law and other systems of law.
And there are omissions; for example, there is no discussion of the pressing problem of subsidization, including agricultural subsidies, in the international trading system. Part IV on linkage issues does not address such matters as trade and food security or trade and new technologies; besides which the issue of trade and climate change is glaringly absent. Given the important reconfiguration of the major trading powers, post-China's entry into the WTO, and the role of developing countries in the multilateral trading system at large, one might also have hoped for more coverage.
These issues notwithstanding, The Oxford Handbook of International Trade Law is an important contribution to the literature and one that will appeal to the scholar, practitioner, and advanced student of international law and economic relations. The editors would do well, however, to consider broadening the basis of enquiry about the wider societal, scientific, and technological framework in which international trade law operates, when working on future editions of the Handbook.
