Arrested Norm Development: The Failure of Legislative-Judicial Dialogue in the WTO

The history of the WTO has been marked by a fundamental imbalance: while WTO Members have largely failed to negotiate new legal rules, the WTO’s dispute settlement system has been very active (and provoked significant backlash). The paper explores the reasons why WTO Members have failed to do their part in shaping norm development in the WTO—either by offering guidance to the dispute settlement organs ex ante or by overruling them ex post—and have thereby opened the space, but also created the necessity, for panels and the WTO Appellate Body to develop their jurisprudence autonomously. The paper builds on the existing explanations to provide a fuller picture of what has blocked state-driven norm development. It argues that divergent views about the scope of the judicial function in the WTO have shaped approaches to legislative overruling, as well as WTO Members’ desire to preserve the legally innocuous character of the WTO’s councils and committees, form key parts of the explanation.

Whose international law is changing? The role of communities of practice

It is particularly tricky to identify the degree to which a change attempt has been successful: the same legal change may be registered by different communities of practice in different ways. For instance, arbiters relying on the idea of precedent on the one hand, and arbiters relying on the idea of case specific application of convention and/or bilateral investment treaties on the other hand may have diverging ideas of how investment law changed. Another example is the development of International Humanitarian Law that seems driven by a handful of states, a community of IHL-based practice that disregards other states’ practices capable of changing the laws of war. In sum, this paper looks at examples of communities of practice in IHL and Investment arbitration in order to demonstrate their role and impact on the construction and recognition of change in international law.

How do geopolitical shifts translate into international legal change? The case of China at the WTO

China’s rise has been analysed by international relations and law scholars alike. Yet we lack a broader understanding of how this rise leads to change in international legal norms. This paper focuses on the role of quasi-judicial processes in this context, in particular WTO dispute settlement. However, WTO litigation is a highly specialized field, which begs the question how China built a legal profession capable of navigating this arena? This issue will be discussed against the backdrop of cases related to WTO subsidies regulation in which China managed to (successfully) challenge the meaning of “public body”, a crucial term in international trade law. This impressive expansion of legal capacity cannot be explained by focusing solely on state processes, therefore this paper systematically analyses institutional and geopolitical changes in parallel to the internal development of a profession through international cooperation in legal practice and scholarly education.

A Quiet Revolution in the Making? The Changing Authority of States in Treaty Interpretation

Whether the characterization of international law as a legal system grounded in state consent has ever been true is open to discussion. The law of treaties, however, is commonly seen as ‘a bastion of consensualism’. It is true that this sense of confidence has never sat easily with treaty interpretation. Despite the lip service sometimes paid to the fiction of the common intention of the parties, the official doctrine of treaty interpretation rests on the primacy of the terms of the treaty. The joint interpretation of the treaty by its parties, however, was generally seen as having a conclusive effect. This state of affairs was recently shaken by the International Law Commission in its work on subsequent agreements and subsequent practice. The paper tries to find out what made this attempted change in the relatively well-established legal regime of authentic treaty interpretation possible and whether this attempt is likely to be successful.