The world trade organization: Multiple dimensions of global administrative law

International Journal of Constitutional Law

Volumn 9, Issue 3-4, 2011, Pages 556-586

  Stewart, Richard B ^a,b   Sanchez badin, Michelle Ratton ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b FUNDAÇÃO GETÚLIO VARGAS   (Brazil)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84856670529     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mor051     Document Type: Article

References (135)

1. An overview of GAL and the issues that it presents is found in Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15 (2005).
2. Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L. J. 1490 (2006).
3. The website of the NYU School of Law's Institute for International Law and Justice's research project on global administrative law collects a wide range of research papers and other materials on the subject (www.iilj.org/gal).
4. See also Global Administrative Law: Cases, Materials, Issues, (Sabino Cassese, Bruno Carotti, Lorenzo Casini, Marco Macchia, Euan MacDonald and Mario Savino eds., 2nd ed. 2008) (www.iilj.org/GAL/GALCasebook.asp).
5. Symposium, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs., 1-385 (2005).
6. Symposium, Global Governance and Global Administrative Law in the International Legal Order, 17 Eur. J. Int'l L. 1-278 (2006).
7. "Global Administrative Law Symposium", 37 NYU Journal of International Law and Politics (2005)
8. The GAL Project, jointly with leading law schools and research institutes in Africa, Asia, Europe and Latin America, has convened conferences in Buenos Aires, New Delhi, Cape Town, Geneva, Beijing, and Abu Dhabi. Publications and reports from these initiatives are at www.iilj.org/GAL, including books from GAL symposia held in Buenos Aires (Res Publican Argentina press) and Cape Town (Acta Juridica).
9. Simon Chesterman, Globalization Rules: Accountability, Power, and the Prospects for Global Administrative Law, 14 Global Governance 39 (2008)
10. On the club model of global regulatory governance, see Robert Keohane & Joseph Nye, The Club Model of Multilateral Cooperation and the Problem of Democratic Legitimacy, in Power and Governance in a PartiallyGlobalized World 219 (2002)
11. On the diplomatic ethos in the WTO, see Joseph Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, in Equity, Efficiency, Legitimacy; The Multilateral TradingSystem at the Millennium 334 (Roger Porter, Pierre Sauve, Arvind Subramanian & Americo Beviglia Zampetti eds., 2001).
12. On the "club" model, see sources cited at note 4 above. The GATT relied on a system of confidential negotiations among the more powerful members to achieve mutual concessions on tariffs and quotas, limit the influence of domestic lobbies, and insulate trade issues from other issues of international relations.
13. See Jens Steffek & Claudia Kissling, Why Cooperate? Civil Society Participation at the WTO, in Constitutionalism, Multilevel Trade Governance and Social Regulation 135 (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006) (hereinafter "Joerges & Petersmann").
14. See also the Mini-Symposium on Transparency in the WTO in 11 J. Int'l Econ. L. (2008).
15. Which includes D.P. Steger, Introduction to the Mini-Symposium on Transparency in the WTO, 11 J. Int'l Econ. L. 705 (2008).
16. Peter Van den Bossche, NGO Involvement in the WTO: A Comparative Perspective, 11 J. Int'l Econ. L. 717 (2008).
17. Yves Bonzon, Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues, J. Int'l Econ. L. 751 (2008).
18. Transparency and Participation in the World Trade Organization, 56 Rutgers L. Rev. 927 (2004).
19. For further discussion see Julio A. Lacarte, Transparency, Public Debate and Participation by NGOs in the WTO: A WTO Perspective, 7 J. Int'l Econ. L. (2004).
20. Peter Van den Bossche & Iveta Alexovicová, Effective Global Economic Governance by the World Trade Organization, 8 J. Int'l Econ. L. 667 (2005).
21. Robert. Wolfe, Decision-Making and Transparency in the 'Medieval' WTO: Does the Sutherland Report have the Right Prescription?, 8 J. Int'l Econ. L. 631 (2005).
22. For discussion of application of global administrative law to WTO governance generally, see Daniel C. Esty, Good Governance at the World Trade Organization: Building a Foundation of Administrative Law, 10(3) J. Int'l Econ. L. 509 (2007).
23. Richard Blackhurst & David Hartridge, Improving the Capacity of WTO Institutions to Fulfill their Mandate, 7 J. Int'l Econ. L. 705 (2004).
24. Global Economic Governance Programme, A Governance Audit of the WTO: Roundtable Discussion on Making Global Trade Governance Work for Development
25. Ernst-Ulrich Petersmann, Challenges to the legitimacy and efficiency of the World Trading System: democratic governance and competition culture in the WTO-introduction and summary, 7 J. Int'l Econ. L. 585 (2004).
26. See par. 45 and ff. of the Doha Declaration, adopted on 14 November 2001. Available at: (July 2010).
27. Besides the Trade Negotiations Committee (TNC), which is under the authority of the General Council, two subsidiary groups were created to handle individual negotiating subjects: market access and WTO rules (anti-dumping, subsidies, regional trade agreements). Others may be created by the TNC, however, the remaining issues and their preparatory work for new agreements has been incorporated in the agenda of the work of the existent councils, committee, and other WTO bodies.
28. Gregory Shaffer, The role of Director-General and Secretariat: Chapter IX and Sutherland Report, 4 World Trade Review 429 (2005). Robert Woolfe provides an interesting description of the dynamics of the WTO negotiating process in Can the Trading System be Governed? Institutional Implications of the WTO's Suspended Animation, Centre for International Governance Innovation, Working Paper 30, September 2007.
29. Procedures were established by the Secretariat to register such representatives, provide them with briefings after member delegates meetings, and also provide them with facilities for public meetings and debates. Other initiatives have included an annual meeting in Geneva for NGOs and delegates about WTO issues (the WTO Public Forum); the creation of discussion groups to confer with the Secretariat and the Director General, such as the informal committees created by the Director-Generals Mike Moore in 2001, and Supachai Panitchpakdi in 2003, WTO News "Moore appoints advisory panel on WTO affairs" Press/236, 5 July 2001; and an open invitation for position papers to be posted on the WTO website (the NGO Forum section). Cf. Doha WTO Ministerial 2001, "WTO Secretariat activities with NGOs" WT/ INF/30, 12 April 2001.
30. Aside from these institutional reforms, NGOs are increasingly involved in negotiations as part of member state delegations, and through the provision of expert assistance to developing country negotiators: see discussion in Seema Sapra, The WTO System of Trade Governance: The Stale NGO Debate and the Appropriate Role for Non-state Actors, 11 Or. Rev. Int'l L. 71 (2009).
31. Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int'l L. 183 (1997).
32. Jan Aart Scholte, Robert O'Brien & Marc Williams, The WTO and Civil Society, CSGR Working Paper 14/98, July 1998
33. For additional views, see Jeffrey L. Dunoff, The Misguided Debate Over NGO Participation at the WTO, 1 J. Int'l Econ. L. 433 (1998).
34. Daniel C. Esty, Non-governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. Int'l Econ. L. 123 (1998).
35. Steve Charnovitz, WTO Cosmopolitics, 34 N.Y.U. J. Int'l L. & Pol. 299 (2002).
36. Saif Al-Islam Alqadhafi, Reforming the WTO: Toward More Democratic Governance and Decision-Making, Gaddaffi Foundation for Development, 2007 (available at , July 2010).
37. Andreas R. Ziegler & Yves Bonzon, How to Reform WTO Decision-Making? An Analysis of the Current Functioning of the Organization from the Perspectives of Efficiency and Legitimacy, NCCR trade regulation, Swiss National Center of Competence in Research, Working Paper No. 2007/23, May 2007.
38. Claus-Dieter Ehlermann & Lothar Ehring, The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements, 8 J. Int'l Econ. L. 803 (2005).
39. See Joost Pauwelyn, Conflict of Norms in Public International Law 54 (2003)
40. Chi Carmody, A Theory of WTO Law, 11 J. Int'l Econ. L. 527 (2008).
41. The multilateral, systemic, tendency of the WTO adjudicatory process is evident in cases involving environmental measures; see, e.g., WT/DS2, United States - Standards for Reformulated and Conventional Gasoline (Complainant: Venezuela), filed 24 January 1995 (holding that US regulations violated national treatment requirement); WT/DS332, Brazil - Measures Affecting Imports of Retreaded Tyres (Complainant: European Communities), filed 20 June 2005 (finding violation of MFN requirements). The same tendency is evident in intellectual property cases, see e.g. WT/DS28, Japan - Measures Concerning Sound Recordings (Complainant: United States), filed 9 February 1996.
42. Debra Steger, The culture of the WTO: why it needs to change
43. Joel P. Trachtman, Regulatory jurisdiction and the WTO, both in The Future of International Economic Law 45, 193 (William J. Davey & John Jackson eds., 2008).
44. WT/DS58, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp) (Complainants: India; Malaysia; Pakistan; Thailand), filed on 8 October 1996. The Appellate Body held that panels had inherent authority to accept non-party submissions including those by non-members, stating that "panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process" WT/DS58/AB/R, at par.105, citing Art 12.2 of the Dispute Settlement Understanding (with emphasis added by the AB).
45. WT/DS135, European Communities - Measures affecting Asbestos and Products Containing Asbestos, (complainant: Canada), filed 28 May 1998. The Appellate Body held at par. 50: "(...) we recognized the possibility that we might receive submissions in this appeal from persons other than the parties and the third parties to this dispute, and stated that we were of the view that the fair and orderly conduct of this appeal could be facilitated by the adoption of appropriate procedures, for the purposes of this appeal only, pursuant to Rule 16(1) of the Working Procedures, to deal with any possible submissions received from such persons" (WT/DS135/AB/R,).
46. For discussion, see Gabrielle Marceau & Jennifer Morrissey, Clarification of the Dispute Settlement Understanding brought by WTO Jurisprudence, in Trade and Agriculture: Negotiating A New Agreement? 143-194 (Joseph A. McMahon ed., 2001).
47. Ernesto Hernandez-Lopez, Recent trends and perspectives for non-state actor participation in the World Trade Organization disputes, 35 J. World Trade 469 (2001).
48. See WT/DS320, United States: Continued Suspension of Obligations in the EC - Hormones Dispute (Complainant: EC), filed 8 November 2004; WT/DS 321, Canada - Continued Suspension of Obligations in the EC - Hormones Dispute (Complainant: EC), filed 8 November 2004
49. See, e.g., "Decision by the Appellate Body Concerning Amicus Curiae Briefs; Statement by Uruguay at the General Council," WT/GC/38, 22 November 2000; "Negotiations on the Dispute Settlement Understanding, Proposal by the African Group", TN/DS/W/15, 25 September 2002 (Kenya representing an African group); "Negotiations on the Dispute Settlement Understanding, Proposals on DSU by Cuba, Honduras, India, Malaysia Pakistan, Sri Lanka, Tanzania and Zimbabwe", TN/DS/W/18, 7 October 2002; "Contribution by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu", TN/DS/W/25, 27 November 2002.
50. See Isabel Feichtner, The Waiver Power of the WTO: Opening the WTO for Political Deliberation on the Reconciliation of Public Interests, 20 Eur. J. Int'l L. 615 (2009) (contending that decisions on waivers should be a forum to confront and resolve conflicting interests and norms).
51. One example among many is the authority of the Council of Goods to waive the most-favored nation clause (Art. I:1 of GATT 1994) so as to enable developed country members to grant under certain conditions duty-free or preferential treatment to goods from least developed regions and countries.
52. Andrew Lang & Joanne Scott, The Hidden World of WTO Governance, 20 Eur. J. Int'l L. 575 (2009).
53. For example, the Anti-Dumping Committee receives notifications about all new investigation processes and measures adopted by members; the notifications are compiled and publicly available at the WTO's website
54. See (July 2010).
55. Missão do Brasil em Genebra (Brazilian Mission in Geneva), Carta de Genebra, ano VIII, n. 1, maio de 2009, p. 17. References are made to formal and informal meetings in which the issue was discussed, and members' positions about it.
56. See also Joost Pauwelyn & Ayelet Berman, Administrative action in the WTO: the WTO's Initial Reaction to the Financial Crisis (forthcoming). The authors named the informal initiative embraced by the Director General as an "administrative action" undertaken by the managerial arm of the WTO (the Secretariat and the DG).
57. See Joost Pauwelyn & Ayelet Berman, Emergency Action by the Director General: Global Administrative Law and the WTO's Initial Response to the 2008-2009 Financial Crisis, 6 Int. Orgs. L. Rev. 499 (2009).
58. See Constantine Michalopoulos, Developing countries' participation in the World Trade Organization, World Bank Policy Research Working Paper No. 1906, March 1998.
59. Håkan Nordström, Participation of developing countries, mimeo, 2006 (available at , July 2010).
60. Most councils and committees follow the provisions of the General Council Rules of Procedure (WT/L/28), sometimes with amendments on matters such as attendance at meetings or decision-making processes
61. Since 2002, all WTO documents are unrestricted and posted on the WTO website unless a member or constituent WTO body requests otherwise, in which case the document is restricted for from 60 to 90 days. Cf. WTO Decision WT/L/452, "Procedures for the Circulation and Destruction of WTO Documents", 14 May 2002.
62. A couple of proposals for amendments on the dynamics of councils and committees are related to nonstate actors' claims for participation in their session, with the right to speak; to participate in the TPM proceedings. Hoekman and Mavroidis sustain that this kind of participation could increase of effectiveness of WTO agreements), cf.
63. Bernard M. Hoekman & Petros C. Mavroidis, WTO dispute settlement, transparency and surveillance, 23 World Economy 527 (2000).
64. See WTO Annual Report, 2008 "Trade in a Globalizing World," available at http://www.wto.org/english/res_e/booksp_e/anrep_e/world_trade_report08_e.pdf (July 2010).
65. See European Communities - Antidumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, 7 March 2003, at 7.321, where the Panel refers to the "Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations", G/ADP/6, adopted 5 May 2000 by the Committee on Anti-Dumping Practices.
66. More generally, see Isabelle Van Damme, Jurisdiction, Applicable Law, and Interpretation, in The Oxford Handbook of International Trade Law 298 (Daniel Bethlehem, Donald McRae, Rodney Neufeld, & Isabelle Van Damme eds., 2009).
67. See Chevron USA., Inc. v. NRDC, 467 U.S. 837 (1984).
68. See, e.g., Michael Livermore, Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius, 81 N.Y.U.L. Rev. 766 (2006).
69. Steger emphasizes the leanness of the WTO Secretariat, relative to that of other international organizations, in Debra Steger, The future of the WTO: the case for institutional reform, 12 J. Int'l J. Econ. L. 803 (2009).
70. Cooney and Lang make a similar recommendation in support of their call for more "adaptive governance" in the WTO in Rosie Cooney & Andrew Lang, Taking Uncertainty Seriously: Adaptive Governance and International Trade, 18 Eur. J. Int'l. L. 523 (2007).
71. GATT Art. X provides as follows: "Publication and Administration of Trade Regulations 1. Laws, regulations, judicial decisions and administrative rulings of general application, made e ffective by any contracting party, pertaining to [exports or imports], shall be published p romptly in such a manner as to enable governments and traders to become acquainted with them.... 2.. .. 3. (a) Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article. (b) Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral o r administrative tribunals or procedures for the purpose, inter alia, of the prompt review a nd correction of administrative action relating to customs matters.. .".
72. For an excellent detailed account of the history, evolution and case-law of Article X, see Padideh Ala'i, From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance, 11 J. Int'l Econ. L. 779 (2008), which examines Article X and its emergence from obscurity to a trade regulatory norm of "fundamental importance."
73. See, e.g., GATT Panel Report, Canada - Import Restrictions on Ice Cream and Yoghurt (Canada - Ice Cream and Yoghurt), L/6568 (adopted 5 December 1989); GATT Panel Report, Republic of Korea - Restrictions on Imports of Beef (Korea - Beef (US)), L/6503 (adopted 7 November 1989). In European Communities - Selected Customs Matters (EC - Selected Customs Matters), WT/DS315/AB/R (adopted 11 December 2006), the sole claim advanced by the US was an Article X claim.
74. See Panagiotis Delimatsis, Due Process and 'Good' Regulation Embedded in the GATS: Disciplining Regulatory Behaviour in Services through Article VI of the GATS, 10 J. Int'l Econ. L. 13 (2006).
75. SPS Articles 7 and 8 (as complemented by Annexes B and C respectively), include specific obligations on members to publish SPS regulations, to leave a reasonable period of time between publication and entry into force, and to provide a notice-and-comment procedure for any measures not based on an international standard. It also requires prompt application of SPS requirements, establishment of enquiry points, access to information, and independent review of decisions taken.
76. TBT Arts. 2.11-2.12, 5-9, and 10 and Annex 3, provide detailed access to information requirements and a "Code of Good Practice for the Preparation, Adoption and Application of Standards," including notice and comment, publication and consultation requirements; and requirements for timely and impartial administration and for review.
77. TRIPS Article 41, requires fair and equitable procedures for enforcement of intellectual property rights, including requirements that they shall be written, reasoned and based only on evidence at a hearing with a right to review of the decision reached. Articles 41-42, 49 and 62 impose regulatory due process requirements for acquisition and enforcement of intellectual property rights, including a right to review. Articles 54-58 stipulate a number of notification and review requirements, particularly where customs authorities refuse to release goods suspected of violating the Agreement. Article 62 deals with procedures for the acquisition of intellectual property rights, including reasonable time-limits and a right to review, while Article 63 contains a general transparency requirement.
78. See, e.g., WTO Appellate Body Report, Japan - Measures Affecting Agricultural Products (Japan - Agricultural Products II), WT/DS76/AB/R (adopted 19 March 1999); WTO Panel Report, Canada - Term of Patent Protection (Canada - Patent Term), WT/DS170/R (adopted 12 October 2000); WTO Panel Report, Argentina- Definitive Anti-Dumping Duties on Poultry from Brazil (Argentina - Poultry Anti-Dumping Duties), WT/ DS241/R (adopted 19 May 2003), WTO Panel Report, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (Guatemala - Cement II) WT/DS156/R (adopted 17 November 2000). See para. 8.179 of the Report. The Panel also found that the anti-dumping investigation had a number of other procedural deficiencies under Article 6 of the Anti-Dumping Agreement; WTO Appellate Body Report, European Communities - Selected Customs Matters (EC-Customs Matters), WT/DS315/AB/R (adopted 11 November 2006).
79. Discussed in Andrew D. Mitchell & Elizabeth Sheargold, Global governance: the World Trade Organization's contribution, 46 Alta. L. Rev. 1061 (2009).
80. WTO Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp), WT/DS58/AB/R (October 12, 1998). For commentary on this case from a global administrative law perspective, see, e.g., Sabino Cassese, Global Standards for National Administrative Procedures
81. Law & Contemp. Probs. 109 (2005).
82. Giacinto della Cananea, Beyond the State: the Europeanization and Globalization of Procedural Administrative Law, 9 Eur. Pub. L. 563 (2003).
83. See also, e.g., Grainne de Búrca & Joanne Scott, The Impact of the WTO on EU Decision-Making, in The EU and the WTO: Legal and Constitutional Issues 1, 16-22 (Gráinne de Búrca & Joanne Scott eds., 2001).
84. For an account of the development of WTO jurisprudence on Article XX subsequent to the US - Shrimp decision, with a focus on the trade-environment nexus, see Geert van Calster & Faites Vos Jeux, Regulatory Autonomy and the World Trade Organization after Brazil Tyres, 20 J. Envtl. L. 121 (2008).
85. The decisions and recommendations of the TBT Committee can be found in one consolidated document: "Decisions and Recommendations adopted by the Committee since 1 January 1995," G/TBT/1/Rev.8 23 May 2002.
86. See Committee on Sanitary and Phytosanitary Measures, "Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7)," G/SPS/7/Rev.3 (20 June 2008, taking effect on 1 December 2008).
87. See Sabino Cassese, Global Standards for National Administrative Procedure, 68 Law & Contemp. Probs. 109 (2005).
88. These challenges included the complexity of the Chinese administrative system; the broad discretion usually afforded to officials in implementing the law; the widespread use of unpublished "normative documents" in place of fully transparent laws and regulations; the almost total lack of notice and opportunity for comment, and the doctrine of "separation of functions," which prevented courts from interfering in administrative governance
89. See Sylvia Ostry, China and the WTO: The Transparency Issue, 3 UCLALA J. Int'l L. & Foreign Aff. 1, 2, 12-13 (1998).
90. Ljiljana Biukovic, Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan, 11 J. Int'l Econ. L. 803, 819 (2008), and for a general account of these developments, at 819-824. Biukovic also examines the impact of WTO transparency measures on administration in Japan.
91. See also Chien-Heui Wu, How Does TRIPS Transform Chinese Administrative Law?, 8 Global Jurist 5 (2008)
92. See also J.Y. Qin, Trade, Investment and Beyond: The Impact of WTO Accession on China's Legal System, 191 The China Quarterly 720, 735 (2007).
93. See Richard J. Ferris & Hongjun Zhang, Reaching Out to the Rule of Law: China's Continuing Efforts to Develop an Effective Environmental Law Regime, 11 Wm. & Mary Bill Rts. J. 569 (2003)
94. One commenter has concluded as follows: "During the years leading up to and following the accession, the government and academia engaged in an unprecedented scale of public education on the WTO, portraying the WTO as mostly a progressive force for China. As a result, WTO principles and concepts, such as nondiscrimination, transparency, due process and judicial review, have gained wide acceptance in China as the norms for good governance in a modern society"
95. See also Andrew Green, Trade Rules and Climate Change Subsidies, 5 World Trade Rev. 377, 411 (2006) (discussing local benefits of WTO procedural requirements such as notice and comment and reasoned decision making).
96. See Robert O. Keohane, Stephen Macedo & Andrew Moravcsik, Democracy-Enhancing Multilateralism, 63 Int'l Org. 1 (2009).
97. See Carol Harlow, Global Administrative Law: The Quest for Principles and Values, 17 Eur. J. Int'l L. 187, 207 (2006).
98. For a detailed account of the genesis of the TRIPS Agreement within the WTO, and of the strong Western support for it in the face of developing country opposition, see John Braithwaite & Peter Drahos, Global Business Regulation chapter 7 (2000)
99. Christopher McCrudden & Stuart G. Gross, WTO Government Procurement Rules and the Local Dynamics of Procurement Policies: A Malaysian Case Study, 17. Eur. J. Int'l L. 151 (2006).
100. See B.S. Chimni, Co-Option and Resistance: Two Faces of Global Administrative Law, 37 N.Y.U.J. Int'l L. & Pol. 799, 805 (2005).
101. Rather than seeing the first US-Shrimp decision as a victory for the developing countries challenging US regulation of their fishing practices or as a progressive step for global administrative law more generally, Chimni notes that the second US-Shrimp decision enabled the US to maintain such regulation making only a few largely procedural adjustments
102. B.S. Chimni, WTO and Environment: Legitimisation of Unilateral Trade Sanctions, 37 Econ. & Pol. Weekly 133 (2002).
103. Chimni argues that global administrative law was used in US-Shrimp to subvert basic principles of state sovereignty and to legitimate unilateral adoption by developed countries of "green protectionism" measures highly damaging to developing country interests
104. See also Gregory Shaffer, Power, Governance and the WTO: A Comparative Institutional Approach, in Power in Global Governance 130-161 (Michael Barnett & Raymond Duvall eds., 2004).
105. See "The WTO and Other Organizations," available at http://www.wto.org/english/thewto_e/coher_e/coher_e.htm. For example, pursuant to GATS Annex on Telecommunications, para. 6, the WTO and the International Telecommunication Union (ITU) participate as observers in each others' meetings and collaborate at the staff level on such activities as research, publications, conferences and workshops.
106. SPS Agreement, Art. 3.2; Annex A (Article 3.d). To date, the SPS Committee has not extended recognition to standards of other international standardizing bodies, nor has a proposal to do so been submitted to it.
107. See Tim Büthe, The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization, 71 L. & Contemp. Probs 219, 226 (2008).
108. This might happen in the future, for instance with respect to standards adopted under the Cartagena Protocol on Biosafety, although the consensus required for Committee decisions might make it difficult to reach an agreement
109. (See Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary 245 (2007)
110. TBT Agreement, Arts 2.4, 2.5.
111. "Standard" is defined in Annex 1 of the TBT Agreement, For discussion of the issues raised by the provision for recognition of international standards under the TBT Agreement, see Robert Howse, A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and 'International Standards,'
112. Christopher Gibson, Globalization and the Technology Standards Game: Balancing Concerns of Protectionism and Intellectual Property in International Standards, 22 Berkeley Tech. L.J. 1403 (2007).
113. GATS Art. VI.5(b). Relevant international organizations are defined as those open to all WTO members. Id fn 3.
114. GATS Art. VII.5
115. For discussion of private standard setting on environmental and social issues by market-based NGOs, see Steven Bernstein & Erin Hannah, Non-State Global Standard Setting and the WTO: Legitimacy and the Need for Regulatory Space, 11 J. Int'l Econ. L. 575 (2008).
116. Joanne Scott, International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and WTO, 15 Eur. J. Int'l L. 307, 311-312 (2004).
117. See also M.D. Masson-Matthee, The Codex Alimentarius Commission and Its Standards 188 (2007), which observes that "unfortunately, the decision of Appellate Body in EC-Sardines does not provide sufficient room for future panels to examine the validity of Codex measures" under the SPS agreement.
118. European Communities - Trade Description of Sardines (EC - Sardines), WT/DS231/AB/R, adopted 23 October 2002, the Appellate Body at para. 227.
119. Criticism is in Henrik Horn & J.H.H. Weiler, European Communities - Trade Description of Sardines: Textualism and its Discontent, in The WTO Case Law of 2002, 248 (Henrik Horn & Petros Mavroidis eds., 2005).
120. Regarding the SPS, see also European Communities - Measures Concerning Meat and Meat Products (EC-Hormones), WT/26/R/USA (1997) at 5 (part II), and 177 (part VIII) (Report of the Panel)
121. See Steve Charnowitz, International Standards and the WTO, 11 Geo. Wash. Law Legal Studies Research Paper No. 133 19-20 (2002), in which there is a chart showing the cooperation between the WTO and other organization in setting standards.
122. See "Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995," WTO TBT Committee, G/TBT/1/Rev. 9, 8 September 2008, p. 37.
123. The TBT Agreement itself establishes, albeit indirectly, a norm for international standardizing bodies concerning participation: "Members shall take such reasonable measures as may be available to them to ensure that international standardizing bodies and international systems for conformity assessment are organized and operated in a way which facilitates active and representative participation of relevant bodies in all Members, taking into account the special problems of developing country Members" (Article 12.5).
124. Gráinne De Búrca, Developing Democracy Beyond the State, 46 Colum. J. Transnat'l L. 221, 233-234 (2008).
125. Regarding the Codex Alimentarius Commission, see Ravi Afonso Pereira, Why Would International Administrative Activity Be Any Less Legitimate? - A Study of the Codex Alimentarius Commission, 9 German L.J. 1693 (2008).
126. Moreover, domestic courts, which have until now generally deferred to the political branches on issues involving implementation of global trade law, may come to require a similar procedural pedigree for WTO norms
127. See Richard B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law?, 68 Law & Contemp. Probs. 63 (2005) (examining "bottom up" approach to development of GAL).
128. The "inter-public" concept and its relation to GAL is developed in Benedict Kingsbury, International Law as Inter-Public Law, in NOMOS XLIX: Moral Universalism and Pluralism (Henry R. Richardson & Melissa S. Williams eds., 2009).
129. Julia Black, Legitimacy and the Competition for Regulatory Share, LSE Legal Studies Working Paper Series, WPS 14/2009, July 2009
130. Eyal Benvenisti & G.W. Downs, Lawmaking in international tribunals: Conditions, impact and democratic legitimacy (June 2010 draft on file with author).
131. See Richard B. Stewart, Accountability, Participation, and the Problem of Disregard in Global Regulatory Governance (forthcoming).
132. I am indebted to Bob Keohane for persuading me to seriously entertain this potential mode of accountability. Ruth Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, 99 Am. Pol. Sci. Rev. 1 (2005).
133. Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 Ethics & Int'l Affairs 405 (2006).
134. Benedict Kingsbury, The Concept of 'Law' in Global Administrative Law, 20 Eur. J. Int'l L. 23 (2009).
135. Response to Dyzenhaus' demand for an account of where the "law" in GAL may be found in David Dyzenhaus, Accountability and the Concept of (Global) Administrative Law, Acta Juridica 3 (2009)