China and the Long March to Global Trade: The Accession of China to the World Trade Organization

By Sylvia Ostry; Alan S. Alexandroff et al. | Go to book overview

9

The evolution of law in contemporary China

Challenges for WTO implementation

Pitman B. Potter

Introduction: globalization and legal cultures

Globalization has emerged as a dominant paradigm to explain transborder flows of goods and capital. 1 Globalization of the liberal legal order is exemplified by efforts at unification of international commercial law, through conclusion of the Vienna Convention on Contracts for the International Sale of Goods (CISG), 2 preparation of the draft Multilateral Agreement on Investment, 3 and completion of agreements associated with the World Trade Organization. 4

The CISG convention purports to establish uniform standards for international sales contracts. 5 Work on the agreement was confined initially to processes within the UN Commission on International Trade Law (UNCITRAL), but interest in the treaty gradually increased on the part of the industrialized economies and particularly the United States, such that the final version drew heavily on liberal principles associated with the US Uniform Commercial Code. 6 The abortive Multilateral Agreement on Investment, while limited by its terms to the OECD economies, stood as a model for a global investment protection treaty. 7 The agreement embraced policy preferences of capital exporting economies with regard to property rights in foreign direct investment. 8 The treaty also entrenched the principle that corporate actors should enjoy private rights of action against states, expanding on the arbitration provisions of International Centre for the Settlement of Investment Disputes (ICSID). 9

The GATT also reflects the export of the liberal legal order, standing as the archetypal document underlying the international free trade system. Particular attention has been given to the broad themes of “most-favoured nation treatment” (GATT, Article I), “national treatment” (GATT, Article III) and “non-discrimination” (GATT, Article XIII), as well as the requirements on reducing and eliminating tariffs and trade subsidies. 10 These derive from liberal principles accepting the theory of comparative advantage, which essentially relegates the role of government to promoting the efficiency and utility of a state's existing or acquired economic attributes, and opposes state actions to inhibit the economic activities of other states through mercantilism and protectionism. 11 Thus, the development of the international free trade system seeks to minimize the capacity for local interests to

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