A theory of global trade law and the WTO

Trade regulation may never have been in more flux than it is now. Other than the emergence of ‘megaregionals’ (such as the Transatlantic Trade and Investment Partnership-TTIP or the Trans-pacific Partnership-TPP) and the difficulties in finalizing the Doha Development Agenda, increased heterogeneity of interests within the World Trade Organization (WTO) puts into question its ability to achieve its central objective of freer trade. While rethinking internally the future of the WTO, it appears timely to discuss and factor in the realities of everyday global trade. In this respect, this paper argues that the stateless reality of commercial transactions requires that state-driven trade-related rule-making and stateless rule-making should be analysed in tandem if we are to make any sense of how global trade works. It further advocates for a new theory of global trade law that focuses on the scrutiny of all those rules that try to mitigate legal risks of economic actors when they partake in transboundary commercial activities. This theory would also be the result of taking a norm-user perspective that focuses on the functionality of the law. Global trade law-related research should evolve around three, broadly-defined axes: first, the identification of a set of principles akin to the global law advocacy; second, the analysis of the phenomenon of the empowerment of non-State constituencies, including firms, and a more intensive bridge-building with the transnational private regulators but also with other IOs (both governmental and non-governmental or hybrid) whose activities have an impact on commercial transactions; and, third, the intensification of the still scattered, unsuccessful efforts to create a more inclusive global trading system brimming with development opportunities for all. Action in these three areas would determine the sustainability and resilience of global trade law.