In association with the International Commission of Jurists

Author: Joost Pauwelyn

18 May

[Joost Pauwelyn is a Professor of Law at the Graduate Institute of International and Development Studies in Geneva and Visiting Professor at Georgetown University Law Center. This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here and the third here.]] Both domestic and international normative regimes may...

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23 Oct

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva]

The Electronic Silk Road is a fantastic read, literally bridging Bangalore with Silicon Valley, showing us how the activity of trade has dramatically changed and how these changes require us to think about “Trade 2.0” rules.  Prof. Chander discusses both private and public law issues, domestic and international rules.

I want to focus my comments on international trade law rules, of the WTO type, that is, the rules imposed by treaty on governments, which generally prevent governments from doing certain things (e.g. prevent them from restricting trade or enacting domestic laws that discriminate against foreigners). When discussing “rules” and the internet, internet companies get nervous: they assume that the rules will limit them and thereby limit innovation.  The rules I am talking about here are limiting what governments can do and, in general, are there to protect or enable (not restrict) internet-reliant companies.  Although Silk Road describes in detail what has changed and sets out basic principles as to how rules could respond to these changes, I was, at times, missing a level of detail allowing us to make progress on the ground.

I see two main types of governmental actions that need curtailing by trade rules. First, governments restricting the flow or storage of data across/outside their territorial borders (e.g. a country requiring that Google or Citibank store all of its data within the country, or a country stopping or censoring the flow of information/network connection coming from/going abroad).  Second, governments taking, or eavesdropping on, information stored or transferred by companies or individuals in (or even outside) their territory (e.g. a country forcing Facebook to hand over certain data or “spying” on data transferred over the internet).

Are today’s WTO rules able to reign in these two types of government interventions with the toolbox of either rules on “trade in goods” or “trade in services”?

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18 Oct

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.] Thank you to Professors David Zaring, Tai-Heng Cheng and Chris Brummer for their truly insightful and extremely helpful comments. Our book, and this discussion, is clearly only the beginning of a much longer debate on what,...

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16 Oct

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.] The result of a two-year research project (involving over forty scholars and thirty case studies), this edited volume addresses a phenomenon we labeled “informal international lawmaking” or IN-LAW. We chose the word “informal” as it is...

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11 Apr

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate. This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114). I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig). Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.
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29 Mar

[Joost Pauwelyn is Professor of Law at Duke Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog] “Noncompliance is necessary to the effective functioning and the continued relevance of the international legal system”. That is Jacob Cogan’s main thesis. Applied to the United States – for...

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