Jean Monnet Center at NYU School of Law

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Part V: Conclusions and Some Thoughts on International Trade Disputes

This paper has mostly sought to provide a comparative analysis of those mechanisms for the settlement of international economic disputes which have been set up and operate in the context of international treaties and/or organizations, and which accord access to private parties. In the above discussion, the relevant international economic disputes have been those arising out of international economic activities and transactions which oppose the economic interests and rights of individuals (mostly corporations) to those of states. State-private party dispute settlement mechanisms are, together with the developments in the field of the international enforcement of human rights, the other major area of interest of this paper, an evident, if not the most evident, sign of how much progress the status of individuals as subjects of substantive and procedural rights and obligations under international law has made. The view embraced in this paper is that substantive and procedural rights of international law are two sides of the same coin. Thus, even if the individual is accorded substantive rights, the risk is that the lack of access to international dispute settlement mechanisms may reduce the significance and effectiveness of those rights, because there would be a serious limitation of their enforceability. Moreover, the traditional mechanism of diplomatic protection, whereby a state takes up the claim of its injured national against another state and brings it on the international law level is outdated because it does not correspond to the reality and dynamics of international economic activities. Its rationale is much less strong today due to the globalization of the world economy in the second half of this century and related phenomena such as the growth of multinationals, which have made private parties the real players on the international level and have weakened the traditional notions of national sovereignty and nationality links. Private parties' s access to international dispute settlement is therefore essential for their full recognition as subjects of international law. The ECHR, while having also a certain relevance for economic rights such as property rights, has been included mainly because it affords an international and judicial-like mechanism whose features may well constitute a model for further developments in other areas of international law.

The comparative analysis has thus focused on those aspects of the various mechanisms which concern access of private parties. In particular, it has been stressed how important it is for the private party to have access to an international forum permitting delocalization on both the substantive and procedural levels. Although there are also significant similarities, each mechanism permits delocalization to a different extent and in different manners, and perhaps this raises the question whether there is an excessive dispersion and fragmentation of international dispute settlement. However, each mechanism also has some interesting and peculiar features that may help improve the others. Certainly, all seem to require some improvements.

There is still one big issue outstanding. By looking at the paper, it would be noticed that it does not discuss any mechanism for the settlement of international trade disputes, except those on antidumping and countervailing duties matters within the NAFTA. The obvious reason is that indeed there is no such a mechanism yet available to private parties. International trade is historically an area where private parties have not had a say on the international law level. It has always and exclusively belonged to the sphere of inter-state relations, as confirmed by the development of the current world trading system through the GATT/WTO regime. This is also true in respect of international trade dispute settlement. Notwithstanding the rule-oriented reform of the WTO dispute settlement mechanism, which is now much more judicial-like, effective and efficient than the former GATT panel system, there has been no opening up to private parties. Similarly, the NAFTA, notwithstanding it affords private parties access to its investment dispute settlement mechanism and to the panel system on antidumping and countervailing duties matters, in Chapter XX sets forth a panel system for international trade disputes (other than those on antidumping and countervailing duties matters) access to which is strictly limited to the federal governments of the NAFTA countries. The argument submitted here is that this a priori exclusion is wrong, and that once again the legal framework provided for a certain type of international economic activities (international trade) fails to take into due account the reality of such activities, lays behind its development, and has to catch up with it. The argument is both theoretical and practical.

The international trade system that emerged after World War II was part of a new and broader conception of the international economic order expressed by the Bretton Woods Agreements. Under this conception, international economic relations were supposed to be facilitated through the creation of international institutional and regulatory frameworks. In particular, the three pillars of the post-war international economic order were the International Monetary Found, competent for monetary and economic policies matters, the International Bank for Reconstruction and Development (the World Bank Group), competent for international financial and lending matters, and the International Trade Organization, competent for international trade matters. While the first two organizations were soon established, the ITO never came into existence, thus leaving a huge institutional gap on the international law level as concerns trade matters. Nevertheless, the General Agreement on Tariffs and Trade was signed, and, while it was supposed to have a temporary function to fill the vacuum left by the non establishment of the ITO, and therefore lacked a formal institutional structure, it has been able to promote and enhance the liberalization of international trade worldwide for the last fifty years, a result beyond any expectation. The rationale of trade liberalization is based on the comparative advantage theory that rightly regards the free cross-border trade of goods (and now services) as a decisive factor for the enhancement of world welfare and the enjoyment of peaceful international economic relations. Moreover, there was still the fresh memory of the serious adverse effects on these relations caused by a trade protectionist attitude of the main world economies in the inter-war period. However, there was a certain inconsistency in the original structure of the GATT. While promoting trade liberalization, it sought to do so by leaving trade matters in the sphere of sovereign states and looking at the flow of goods as occurring between these states. As a result, the various rights and obligations set forth were referred to states only. This disregarded the fact that the everyday flow of goods takes place by means of transactions entered by and between private parties; rather, there was the idea that it was for sovereign states to promote the interests of their nationals on the international law level. Furthermore, there was a basic mercantilist assumption, that is, exports are good, imports are bad, and emphasis was thus placed on the promotion of exports and of the related economic interests. Nevertheless, this has not precluded a constant liberalization of trade that has certainly and significantly benefited private participants.

In more theoretical terms, this certainly reflected the strong and prevailing view of the time whereby individuals were not subjects of international law (only states could be so), and therefore they were not accorded any role in the rule/decision making process or dispute settlement process concerning international trade. In international relations terms, the mercantilist view of the time was reflected in the realist trade theory whereby states only seek to promote their self-interests. The contradiction with a multilateral cooperation to liberalize trade was explained with the argument that the pursuance of self-interest had to be attenuated due to the risk of undesirable conflicts, and that these conflicts were the result of non-cooperation. Yet, the assumption was that states would comply with the non-legally binding GATT only when it were in their self-interest to do so, a minimalist approach that did not want to reduce national sovereignty, and accepted the idea of power-oriented international relations. The fact that nevertheless trade liberalization has successfully taken place should therefore be explained with the convergence of the interests of states. Finally, private parties themselves were willing to accept this representation of their interests by their national states.

The establishment of the World Trade Organization and the results of the Uruguay Round have somehow inherited this basic structure, but they have been much more responsive to the call for a certain rule-oriented approach in substitution for the power-oriented one that normally characterizes international relations. The WTO is indeed an excellent example of the shift from a power-oriented to a rule-oriented vision of international trade, because it provides a legalistic form of multilateral forum for trade policy and rule making matters, and for dispute settlement. In terms of international relations theory, perhaps the best description of this shift has been provided by Shell,[132] who considers the WTO an expression of the regime management model, which is in turn based on the regime theory. This theory somewhat departs from the realist trade assumption that there is tendency to non-cooperation between self-interest maximizing states. Rather, states are deemed to be willing to cooperate because they realize that failure to do so may be harmful, and thus states, to avoid this risk, accept some constraints on their sovereign conduct through multilateral cooperation. Moreover, there is the recognition that power-enhancement is not necessarily the states' only goal, and they are willing to negotiate these multilateral contracts to balance their often conflicting goals. Overall, on the inter-state level, the new WTO regime creates legal certainty and predictability, which in turn benefits private parties, and proves the willingness of states to accept the rule of law rather than power.

However, as supported by the regime theory, the WTO regime creates an institutional forum for international trade matters limited to states; in other terms, there is still the recognition of states as the only subjects of rights and obligations of international trade, and there is a quasi absolute absence of any consideration of private parties' interests as such, that is, not through the mediation of their national states. The problem is that today the world is quite different from fifty years ago. The globalization process has produced a significant increase and affirmation of the role played by private parties in the international flow of goods and capitals. It would be more consistent with the theory of liberalism to take the view, here embraced, that states are not the real players in international trade, but private parties increasingly are. If the basis for free market and economic liberalism is that the individual is the best maximizer of his/her own interests and that the comparative advantage theory would be best applied if the individual' freedoms were legally protected, then the protection of the individual's rights and interests should be afforded on the international law as well as on the national law levels. The mediation of interests through the national state of the private party does not adequately represent these interests and rights. There is above all the limit represented by the fact that governments tend to be more sensitive to some domestic constituencies rather than to others, and it is a matter of fact that, because more powerful and better organized, the prevailing constituencies are the ones invoking protectionism in favor of domestic industries. True, this risk is attenuated by the rule-oriented framework of the WTO that may in the end prevail over this domestically-driven protectionism of its Member States. However, as long as private parties have no say at all on the international law level, this may risk to distort the liberal aspirations of the current international trade regime.

The efficient market model suggests that the pressure from these interested private parties will finally lead to an opening up of the system to their participation, on the assumption that it cannot be negated that these parties are the ultimate actors on the stage of international trade. Multinationals are certainly key promoters of this opening. First, a large share of international trade is cross-border intra-firm trade made by multinationals to supply the various units of their transnational production and distribution network. Second, as said earlier, they cannot easily be identified as nationals of one state, because their activities, transnational in nature, link them with many and no states at the same time. It may be against their interest to be identified with one state, and at the same time it may be in the interest of many states to protect them. In short, it is clear that the national state is not anymore a valid and effective expression and representative of the economic and legal interests involved in international trade. It is true that at the moment the international trade regime does not even confer substantive rights on private parties, but it is from here that changes have to take place. There is indeed a urgent need to start according, although in a soft way through implementing national legislation, substantive rights to private parties, because they are the real holders of the underlying economic interests at stake in international trade.

Moving this discussion to the level of international trade dispute settlement, it is clear that the exclusive state-to-state level on which this settlement takes place is not the ideal level. States, through diplomatic protection, subject the protection of the private economic interests at stake to all the undesirable effects that diplomatic protection produces, as seen earlier in this paper. At this point, it is essential to observe the striking contrast between the existence of international mechanisms available to private parties for the settlement of investment disputes, and the absence of such mechanisms for private parties in the context of international trade. Of course, the reason is that, in the first place, the private party is not considered a subject of substantive rights on the international trade level, while historically there has been a willingness on the part of states to afford investors substantive rights on the international law level. Originally the reason might have been that foreign investment represented a type of international economic activity far less important in quantity and quality than international trade, and that the presence of the foreign firm in the host states could have such political implications that it was necessary to afford a form of international protection and security of the investor's interests and rights, and to depoliticize the disputes which might arise through an international dispute settlement mechanism. Moreover, investment has been scarcely affected by mercantilist concerns.

Today, however, the situation is different. To be sure, the original negation of private parties' rights persists; governments wish to retain control over trade because of the very politically sensitive issues it raises at the domestic level. On the other hand, international trade has changed its traditional patterns, and it is less and less distinguishable from issues of foreign investment. It was already mentioned that an increasingly larger share of trade takes place through intra-firm trade of production inputs by multinationals. This means that there is a direct relationship between trade and investment. While foreign direct investment in a certain country was originally a sort of reaction to the imposition of trade restrictions that prevented the foreign firm from penetrating the domestic market of that country, so that trade protectionism promoted foreign investment by imposing a direct presence of the firm in the host state through some form of direct investment, now foreign investment is more advantageous because trade liberalization permits freer cross-border intra-firm trade to multinationals, and international trade grows as a result of the grow of foreign investment because a significant share of this trade is the cross-border intra-firm trade. The connection could not be stronger. Restrictions on the flow of trade adversely affect the flow of foreign investment, and vice-versa. In general, at least in the context of cross-border trade, if there are trade restrictions applied by one country, it might be far less convenient for a multinational to invest there, because the restrictions would adversely affect the cross-border intra-firm flow of tangible and intangible inputs (e.g. its intermediate products), which is what gives multinationals their competitive advantage over a domestically based competitor. And restrictions on foreign investment may adversely affect the free trade of goods and services, as it is the case when local contents requirements or import limitations are imposed on the multinational as a condition for its establishment in the host country.

This overlap can also be noticed in some results of the Uruguay Round. First, in the General Agreement on Trade in Services (GATS), under article 1, trade in services is defined as to also include the supply of services through the commercial presence of a service supplier of one Member State in another Member State. Commercial presence is then defined in article XXVIII(d) as any type of business or professional establishment including that taking the form of an acquisition or maintenance of a juridical person, or of a branch or representative office. These are obviously forms of foreign investment, and the market access which the GATS seeks to promote takes in this case the form of a right of establishment, a pillar of any legal framework for foreign investment. Thus, there is the quite explicit recognition that a form of foreign (direct) investment may well be, or actually is, a form of trade in services.

Similarly, the Trade-Related Intellectual Property Rights Measures (TRIPs) deal with issues of violations of intellectual property rights which are a common cause of concern for both trade and investment. There can be no question that failure to implement intellectual property protection by states distorts the dynamics of both trade and foreign investment. States that permit domestic producers to violate this type of rights gain and let these producers gain an unfair competitive advantage over other States and producers in the international market, thus distorting the free trade regime. At the same time, these states will be unlikely to attract foreign investment because foreign investors normally require protection of their intellectual property rights before transferring their technology to an host state through investments. The measures set forth in the TRIPs Agreement are a necessary protection both for trade and investment interests, in particular those referring to intellectual property rights as private rights and those requiring Member States to provide effective means of enforcement of these rights. Moreover, the fact that there is this recognition of private rights seems to open the road to more explicit reference to private parties' rights in the context of international trade.

Finally, there are the Trade Related Investment Measures (TRIMs). While there is no definition of TRIMs, they may be broadly defined as all those measures taken in respect of foreign investment that may distort international trade. Examples are local contents requirements, already mentioned, and other performance requirements, such as limited domestic sales, or export requirements (i.e. to export a certain share of the output), but also investments incentives, such as tax concessions, which may amount to an unfair competitive advantage for the beneficiary, etc. The TRIMs Agreement does not set forth any significant regulation of these measures, because it is meant to be just a declaration of principles in the context of which further negotiations are required. However, it provides further evidence as to the strong ties between investments and trade.

It is clear from these elements of the WTO system that the veil between trade and investment may soon be pierced; the strong ties discussed above have reached a phase where they cannot be arbitrarily cut off or ignored. Furthermore, the WTO is the forum where negotiations will start soon for a comprehensive investment agreement, and it will be interesting to see whether it will be decided to maintain a distinction between trade and investment, as it is the case within the NAFTA, or it will be decided that a certain common regulation may take place because appropriate, especially as concerns the institutional level and the dispute settlement mechanism.

It may be therefore concluded that the tendency of trade and investment to overlap, that is likely to become more accentuate in the future, will pose the question of substantive rights for private rights in the international trade legal regime, and that this will go together with an opening up of the WTO dispute settlement mechanism to access of private parties. This question is here answered by submitting that it will be necessary to fully recognize the rights and procedural capacity of private parties in international trade. As already happened in the field of foreign investment, it is the economic reality that imposes these innovations; the structure of international law still lags behind that of the world economy, but it will have to catch up.

This result is also a matter of democracy, because the representative model whereby the interests of private parties' interests are pursued by their national states cannot satisfy the increasingly articulated demands of these parties. As Petersmann puts it, "in the modern globally integrated world economy, the transanational exercise of individual rights has become no less important for ordinary citizens than purely domestic exercise of their domestic rights.[133] Moreover, direct private parties' substantive and procedural rights are a way to take into account interests and goals other than those of a purely economic nature, with which trade and other economic goals necessarily interact, such as environmental and labor protection.

Focusing the discussion on access to dispute settlement, it may be submitted that once private parties are accorded substantive rights of international trade law, they should also have direct access to international trade dispute settlement mechanisms. The arguments for this correspondence are the same as those submitted in the general discussion on international economic disputes, that is, the correspondence is necessary for the overall protection to be truly effective and adequate. For instance, diplomatic protection was earlier indicated as a potential cause of politicization of disputes; this also applies to international trade disputes, as it is proved by what happens every time there is a dispute before the WTO panel. Resort to the panel always triggers a worsening of the relations between the complaining and the respondent states. Why should this undesirable effect be taken for granted? Why do states want to take up the claims of multinationals against other states and not let them solve these disputes without creating tensions in their international relations?[134]

Additionally, the diplomatic protection system inevitably brings to a selective approach as to the disputes to be taken up before the WTO panel. This wide discretion, linked to the issues of foreign policy arising from trade disputes, makes it very likely that disputes are selected according to their political desirability rather than on the legal and economic interests at stake, or that only the disputes of those private parties with more or better resources and political connections are considered. This is an intolerable distortion of a truly liberal trading and rule oriented regime where all the parties whose rights are affected should have standing in the first place. Finally, it is worth specifying that here the reference in case of both substantive and procedural rights is to the relationship between states and private parties, but that at the same time it may be appropriate not to limit this relationship to exporters on the one side and importing states on the other side. The many legally relevant interests that trade raises are such that there may be the need to afford domestic constituencies which are not given a say by their state to go before an international forum in order to enforce certain legally protected interests.

The problem is then how to provide direct access. One method may be that to submit briefs amicus curiae, which is however a loose form of direct access. It seems preferable to afford a more effective and complete form of access. In this regard, the model of the ECHR offers an interesting and suitable model. For one reason, it maintains a fair balance between issues of national sovereignty and protection of private rights on the international law level, as confirmed by the subsidiary character of the Convention machinery in respect of domestic jurisdictions. This fits into the WTO emphasis on enforcement of trade liberalization and private rights on the national law level.

Looking at the structure and the procedure of the ECHR, the rule of exhaustion of local remedies and the other grounds of inadmissibility should permit to filter the many claims which may be expected. Second, the procedure for the appointment of the members of the Commission and the Court is a guarantee for the parties of impartiality and competence, and the presence of a commissioner/judge who is a national of the respondent state while acting independently permits an adequate consideration of the law of that state. Furthermore, the WTO Secretariat would be suitable to act as the Commission does in the ECHR context. However, there may be problems with the enlargement and the appointment of the members of the Secretariat. In addition, since there may be problems of duplicity of functions between the Secretariat and the Panel, in particular as to the examination of the merits, it may be a viable alternative to focus on the panel system only. Thus, panels should be institutionalized in a manner similar to the format of the reform of the ECHR machinery under the Eleventh Protocol, and should be competent to decide on both the admissibility and the merits of the case, but the appeal should be before the Appellate Body rather than before a "Grand Panel" and limited to the cases now provided under the current WTO mechanism. A crucial point would be to avoid the excessive length of the proceedings. Of course this proposal can be implemented only if there is a corresponding reform on the substantive law level, so that the various Agreements contain an adequate set of substantive laws referring to individuals, and applicable when determining the legality of national measures. This structure would allow delocalization of the disputes on both the procedural and the substantive level. Finally, compliance with the panel decision would always be an obligation of international law for the respondent state, while the petitioner would be awarded monetary damages and the Dispute Settlement Body can monitor compliance with the decision.

This proposal only wishes to promote a debate as a matter of speculation on future developments of the WTO system, and in particular of its dispute settlement mechanism. However, the key point is that these developments must move in the direction of completing the rule-oriented reform initiated with the Uruguay Round, and cannot disregard the recognition of private parties as subjects of rights and procedural capacity in international trade law.

The comparative analysis made in this paper shows how beneficial for the individual is to have direct access to international dispute settlement mechanisms. In this way, the individual's subjectivity of international law is better expressed. With the opening up of the WTO system to private parties, another big step towards an even better and more comprehensive recognition would be made:

"The failure of international trade decision-making to reflect democratic principles also serves as an obstacle to the current trend towards the democratization of international law. In a host of other international fora there is an increasing recognition of the role of the individual and of NGOs in the making and conduct of international law. Foreign investors and businesses involved in trade are increasingly tearing down the artificial walls that have long separated public and private international law. In addition, advances in the area of international human rights law represent a growing recognition of the rights of individuals as separate from the rights of national governments. However, the failure of international trade law to provide individual democratic rights in social areas undercuts this trend of development."[135]

[132] SHELL, The Trade Stakeholder Model and Participation by Nonstate Parties in the World Trade Organization, 17 U. PA. J. INT'L ECON. L 359 (1996).

[133] ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM. INTERNATIONAL LAW, INTERNATIONAL ORGANIZATIONS, AND DISPUTE SETTLEMENT (1997). I wish to thank Professor Petersmann, Professor of Law at the University of Geneva, and Legal Counsel, WTO, Geneva, for his very kind attention and advice on the WTO.

[134] JACKSON, THE WORLD TRADING SYSTEM 111 (1989). I wish to thank Professor John H. Jackson, Hessel E. Yntema Professor of Law, University of Michigan, for his very kind attention and advice on the WTO and the NAFTA.

[135] HOUSMANN, Democratizing International Trade Decision-Making, 27 Cornell Int'l L.J. 699 (1994).

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