Austin's Ghost and DSU Reform

Abstract

Members of the World Trade Organization face numerous issues relating to the reform of the dispute settlement mechanism. At bottom, all of the issues present a challenge: Are the Members serious about advancing the rule of law in international trade? That is, what kind of "legal" system do they want to govern cross-border trade? This challenge presumes a definition of what "law" is. Among many scholars through the ages, the nineteenth century English legal philosopher, John Austin, considered the definition. His three-part test defined "law" as (1) the issuance of a command by a central authority, (2) the reinforcement of that command by threat of punishment, and (3) the habitual obedience to commands of the authority, and is useful in classifying the WTO dispute settlement reform issues. Rather than merely listing a complex array, the issues can be put into one of three categories inspired by Austin's famed Command Theory of Law. That exercise underscores the enormity of the challenge now facing the WTO.

Keywords: international trade, WTO, World Trade Organization

JEL Classification: K33