From Here to Beijing: Public/Private Overlaps in Trade and Their Effects on U.S. Law

Abstract

Recent news involving contaminated pet food and unsafe toys imported from China makes us question the legal frameworks that facilitated such incidences and stirs anti-globalization sentiment. While consumers wonder about the role of their governments in this context and look for judicial remedies, deeper questions arise regarding the international forces lying beneath the surface of the legal remedial work of our domestic courts. This paper explores the international trade paradigm in place that facilitates the inner workings of private investors and has trickling effects on domestic law. Furthermore, it will show that the trade regime is transnational in nature, consisting of networks of state and non-state actors that use and influence both the trade and investment regime. In this way, trade impacts U.S. law and U.S. actors also influence the international trade landscape. Specifically, it will demonstrate that deconstructing the overlaps among investment and trade regimes is important for international dispute settlement bodies such as the WTO, especially when dealing with domestic regulatory measures that implicate the national treatment requirement under free trade agreements. Deconstructing these overlaps helps to illuminate the "private" regimes that not only influence the decisions of domestic law makers and at times, international institutions, but also links the international trade regime with the domestic one. This relationship among regimes shifts traditional paradigms of international law, where the state is the central actor, to a "mobile paradigm" where transnational actors and special interest groups help shape the judicialization of WTO jurisprudence. Increased coordination from "top down" can balance the "bottom up" deference from regional tribunals to WTO interpretations of trade commitments. This is necessary to increase the legitimacy of the WTO multilateral trade regime and tighten the gap among the WTO and regional trade agreements.