21 (2011)

Joanna Langille

New York University School of Law

 

This Note seeks to describe the legal system of the World Trade Organization (WTO) by analyzing the extent to which countries that are members of the WTO can contract out of WTO obligations. The current literature on the WTO provides two primary models through which we can understand the WTO’s legal regime: a constitutional model and a contractual model. The constitutional model sees the WTO as a legal system that cannot be easily varied by individual WTO members because WTO commitments are made to all members. Alternatively, the contractual model describes WTO obligations as easily variable by subsets of members, since WTO commitments are made only on a bilateral (country-to-country) basis. This Note addresses that debate by looking at the ability of WTO members to contract out of WTO obligations through bilateral and regional trade agreements, whereby two or more members define the trade rules governing their relationship outside of the WTO legal regime. WTO law governing regional trade agreements reveals that, on the one hand, member states cannot contract out of all WTO obligations; certain core obligations cannot be varied. However, there remains significant scope for contracting out through regional trade agreements on most subjects. Therefore, both the constitutional and contractual models are insufficient and do not accurately describe the nature of WTO obligations.

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Also published in: 86 NYU Jnl Intl Law & Policy 1482 (2011)