WTO Jurisprudence Governments, Private Rights, and International Trade

This book offers a critical examination of the jurisprudence of the World Trade Organization (WTO) as an emancipatory international social contract on trade. The book suggests that the WTO is an international organization built and operating on member states’ attribution of authority through consent with legislative, administrative, and adjudicative functions – three functions in one triune personality. With a solid constitutional continuity building on GATT experiences, the WTO has successfully made governments accountable to foreign individuals in various capacities either as traders of goods, providers of services, or holders of intellectual property rights within the global marketplace. With a triune personality, the WTO operates within the reign of state primacy – the force – ultimately for the benefits of individuals – the ends – in the global marketplace, and gains a soul of its own in the institutional evolution – the means – of the global trading regime. Although the tripartite dynamics between states, international institutions, and individuals in the global marketplace are unprecedentedly complex, the WTO’s ends of benefiting individuals in the global marketplace has no end. Beyond the critical analysis of WTO’s decision-making by consensus, the book critically examines GATT’s "common intention" treaty interpretation, Antidumping’s NME methodology, TRIPS’ public health concerns, and IP-competition trade policy dynamics. A unified WTO jurisprudence looking at the WTO as an international social contract on trade is therefore proposed to allow a fresh look at the force, the means, and the ends of the constitutional evolution of the global trading regime.

1. International Social Contract on Trade: Its Force, Means and Ends 1.1 History and Evolution from the GATT to the WTO 1.2 States, the WTO and the Individuals in International Law 1.3 WTO as an International Social Contract on Trade 1.4 Conclusion 2. WTO Decision-making by Consensus 2.1 Introduction 2.2 The WTO Decision-making Duet: Consensus and Single Undertaking 2.3 Consensus Principle’s Undesirable Practical Implications 2.4 Consensus’ Contractarian Deficits and WTO Legitimacy 2.5 Conclusion: Consensus Yet Consented? 3. GATT: The "Common Intention" Approach of Treaty Interpretation 3.1 Introduction 3.2 How General Should the GATT General Exceptions Be 3.3 Judicial Activist "Common Intention" Approach of Treaty Interpretation 3.4 The Legitimacy Deficit of the "Common Intention" Approach 3.5 Concluding Remarks 4. Antidumping: The NME Normal Value Determination 4.1 Introduction 4.2 Antidumping Development and Normal Value Determination 4.3 The NME Methodology: Nationality as Status of Products in Trade 4.4 From Status to Contract and Back: NME Treatment and Beyond 4.5 Conclusion 5. TRIPS: IPRs, Public Health, and International Trade 5.1 Introduction 5.2 WTO to Promote Public Health through International Trade 5.3 Public Health Caught in TRIPS’ Birth Defect 5.4 Public Health, IPRs & Trade: The Private Right Dilemma in International Law 5.5 Conclusion: The Dynamics between Public Health, IPRs, and Trade 6. Trade & Policy: IP-competition Dynamics in TRIPS’ FRAND Enforcement 6.1 Introduction 6.2 Harmonized TRIPS v. Diversified FRAND Enforcement 6.3 SEPs, Antitrust and Trade in WTO Law 6.4 Concluding Remarks 7. Ends without End: The Future Prospects of WTO Evolution

Wenwei Guan is anAssociate Professor of Law at City University of Hong Kong.