Legal Studies and Business Ethics Papers

Document Type

Journal Article

Date of this Version

2004

Publication Source

University of Pennsylvania Journal of International Law

Volume

25

Issue

2

Start Page

725

Last Page

754

Abstract

The creation of the World Trade Organization engendered a flurry of scholarly excitement, much of which focused on the dispute settlement mechanisms built into the organization's scheme. The advent of the World Trade Organization also generated scholarly debate on the nature and future of the World Trade Organization. One such debate, concerning participation in the World Trade Organization by nongovernmental parties ("NGOs"), was published in an earlier volume of the University of Pennsylvania Journal of International Economic Law? This essay continues that debate.

The issue that initiated this debate was whether standing before World Trade Organization dispute settlement panels should be extended to include nongovernment parties. Currently, only member countries4 of the World Trade Organization may appear before such panels. In a provocative article published in the Duke Law Journal, Professor Richard Shell suggests that standing should be expanded. His suggestion is part of a larger vision that he has for the World Trade Organization, which he calls a "Trade Stakeholders Model." Specifically, the Trade Stakeholders Model "seeks to break the monopoly of states on international dispute resolution machinery and to extend the power to enforce international legal norms beyond states to individuals." The Trade Stakeholders Model also embraces "a vision of civic republican 'participatory legalism."'

Although I do not necessarily disagree with the concept that the World Trade Organization should avail itself of the expertise of "outside" persons and interest groups, I do have several concerns with respect to expansion of standing, which I outlined in the first essay that appeared in the above-referenced debate.9 Steve Charnovitz, who as director of the Global Environment and Trade Study at Yale University has made several important contributions to the understanding of the relationship between trade and societal values,10 followed with an essay that not only responded to my concerns regarding expansion of standing, but also advocated participation by interest groups in policymaking by the World Trade Organization." Professor Shell concluded the debate with an essay that not only responded to Charnovitz and myself, but also criticized my proposal that suggested the World Trade Organization refrain from scrutinizing a country's action if that action reflects fundamental societal values and only incidentally impedes trade.

Professor Shell had the last word in the debate concerning his proposal for expansion of standing and so it shall remain. 13 In this essay I intend to accomplish two goals. First, I wish to clarify issues raised by Steve Charnovitz concerning the participation by nongovernment organizations in the policymaking process of the World Trade Organization. Second, I will respond to Professor Shell's criticisms of my suggestion for the World Trade Organization, and show that the theoretical underpinnings for international relations are not as limited as set forth in his essay.

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Date Posted: 27 November 2017

This document has been peer reviewed.