WTO Jurisprudence: Governments, Private Rights, and International Trade (Routledge Research in International Law)

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. This book offers a critical examination of the jurisprudence of the World Trade Organization (WTO) as an emancipatory international social contract on trade. Cover 1 Half Title 2 Series Page 3 Title Page 4 Copyright Page 5 Dedication 6 Table of Contents 8 Foreword by Prof. Ernst-Ulrich Petersmann 10 Preface and acknowledgments 13 1. International social contract on trade: its force, means, and ends 16 1.1 History and evolution from the GATT to the WTO 16 1.2 States, the WTO, and the individuals in international law 21 1.3 WTO as an international social contract on trade 32 1.4 Conclusion 40 2. WTO decision-making by consensus 45 2.1 Introduction 45 2.2 The WTO decision-making duet: consensus and single undertaking 48 2.3 Consensus principle’s undesirable practical implications 55 2.4 Consensus’s contractarian deficits and WTO legitimacy 64 2.5 Conclusion: consensus yet consented? 74 3. GATT: the “common intention” approach of treaty interpretation 82 3.1 Introduction 83 3.2 How general should the GATT general exceptions be? 86 3.3 Judicial activist “common intention” approach of treaty interpretation 95 3.4 The legitimacy deficit of the “common intention” approach 114 3.5 Concluding remarks 121 4. Antidumping: the NME normal value determination 127 4.1 Introduction 127 4.2 Antidumping development and normal value determination 131 4.3 The NME methodology: nationality as status of products in trade 137 4.4 From status to contract and back: NME treatment and beyond 144 4.5 Conclusion 152 5. TRIPS: IPRs, public health, and international trade 157 5.1 Introduction 157 5.2 WTO to promote public health through international trade 160 5.3 Public health caught in TRIPS’ birth defect 168 5.4 Public health, IPRs, and trade: the private right dilemma in international law 180 5.5 Conclusion: the dynamics between public health, IPRs, and trade 189 6. Trade and policy: IP-competition dynamics in TRIPS’ FRAND enforcement 195 6.1 Introduction 195 6.2 Harmonized TRIPS v. diversified FRAND enforcement 198 6.3 SEPs, antitrust, and trade in WTO law 210 6.4 Concluding remarks 226 7. Ends without end: the future prospects of WTO evolution 232 Index 236 "1 International social contract on trade: its force,means,and ends; 2 WTO decision-making by consensus; 3 GATT: the “common intention” approach of treaty interpretation; 4 Antidumping: the NME normal value determination; 5 TRIPS: IPRs,public health,and international trade; 6 Trade and policy: IP-competition dynamics in TRIPS’ FRAND enforcement; 7 Ends without end: the future prospects of WTO evolution" 1 International social contract on trade: its force, means, and ends; 2 WTO decision-making by consensus; 3 GATT: the “common intention” approach of treaty interpretation; 4 Antidumping: the NME normal value determination; 5 TRIPS: IPRs, public health, and international trade; 6 Trade and policy: IP-competition dynamics in TRIPS’ FRAND enforcement; 7 Ends without end: the future prospects of WTO evolution Présentation de l'éditeur : "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." "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 service, 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"-- Provided by publisher This book offers a critical examination of the tripartite dynamics between governments, private rights and the World Trade Organization (WTO) as the world's trading mechanism.