Shaffer: Power, Governance and the WTO: A Comparative Institutional Approach

Gregory Shaffer (Univ. of Minnesota - Law) has posted Power, Governance and the WTO: A Comparative Institutional Approach. Here's the abstract:

This paper makes three central points. First, it charts the myriad ways in which the United States, the European Community, and influential constituencies within them advance their interests through the World Trade Organization (WTO). They predominate because they wield considerable material and ideational resources that provide them with advantages in economic relations in any institutional context. Second, the paper shows how WTO judicial bodies, as any court, exercise power when they decide legal cases. Because WTO rules are not fixed in meaning, their application requires WTO judicial bodies to make institutional choices. These institutional choices result in the effective allocation of decision-making authority to alternative institutional processes. To understand the operation of WTO judicial power, we thus need to examine how choices over the application of WTO rules differentially shapes opportunities for states and their constituents in the market and in domestic and international political processes. In short, the paper adopts an institutional perspective for assessing law's power, differing from (and complementing) perspectives that focus on legal discourse and legitimization processes. Third, the paper raises broader questions about the analysis of power and global governance. The paper contends that, since all institutional processes are characterized by bias, institutional analysis-whether conducted from a normative or strategic perspective-should be comparative, the key question being how parties participate, or otherwise are represented, in an institutional context in comparison with its alternatives. As the paper shows, because of the open-ended nature of WTO rules, the WTO Appellate Body itself can engage in comparative institutional analysis and consider institutional alternatives in terms of their relative biases. The issue is not whether biases exist (they exist in all institutional contexts), but rather, what are the effects of an institutional process on participation in the weighing of competing concerns compared to its non-idealized institutional alternatives. The paper demonstrates the effects of institutional choice through its assessment of one of the WTO Appellate Body's most controversial decisions, one which has been referred to as a constitutional-like case for the WTO and global governance-the United States shrimp-turtle case. The case involved the interaction of domestic and international trade, environmental, and development concerns.