The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

INTRODUCTION
An overview of the volume

This is a book about current problems affecting the law and institutions of the World Trade Organization (WTO). The particular problems treated in this book have recently risen to particular prominence due to the WTO's decision, at its November 2001Ministerial Meeting in Doha, Qatar, to launch a new round of trade negotiations. The need to deal with these issues was a key reason for launching the new negotiations, while the problems themselves, if not resolved, will stand as obstacles to the success of those negotiations.

In recognition of Professor Robert E. Hudec's scholarly contributions to international trade law, participants at the conference in his honor were invited to employ, in their treatment of the WTO problems they had chosen to discuss, a particular analytical approach for which Hudec's scholarship is known. Known to conference participants as “Transcending the Ostensible, ” 1 the approach directs particular attention to the possibility that WTO legal institutions, like other international legal institutions, will function in unexpected ways due to the political and economic conditions of the international environment in which they have been created, and in which they operate. Like all international legal institutions, WTO legal institutions are designed to affect the behavior of governments, rather than private persons and institutions. Government behavior is determined by the domestic political forces engaged on the issue in question. International legal institutions must therefore be viewed as institutions designed to influence domestic political forces, and thus both their design and operation must be understood in light of the political and economic conditions that shape outcomes in this political arena.

The functions of WTO legal institutions are particularly influenced by the unruly nature of the environment in which international trade relations take place. The WTO's trade liberalization objectives often enjoy only very tenuous political support in home capitals, with the result that the legal commitments made by governments are often less dependable than their binding legal form would suggest.

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1
The term is taken from David Riesman's advice concerning the analytic approach to be taken toward legal systems in primitive societies: “The anthropologist is not likely to harbor the naive assumption that the law, or any other institution, serves only a single function–say that of social control …Theconceptofambivalenceispartofhisequipment;hetendstosearchforlatentfunctions, transcending the ostensible. ” David Riesman, Individualism Reconsidered and other Essays 445 (1954), quoted in Robert E. Hudec, “Transcending the Ostensible” : Some Reflections on the Nature of Litigation between Governments, 72 Minnesota L. Rev. 211 (1987).

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