Judicial governance at the WTO: legalization, contractual incompleteness and the WTO

In the international relations and international economic law literatures, the concept of legalisation has been mainly used to tell a success story of the global trading regime. Many IR scholars claim to have detected a "paradigm shift" from the old cloak-and-dagger, power-based GATT to the multilateral rule-of-law system, codified in the many agreements of the WTO. The adoption of the WTO Dispute Settlement Understanding ("the jewel in the crown of the WTO architecture") for example, is said to have replaced many of the diplomatic elements characterising trade litigation under the GATT. When it comes to the question of the design of the WTO, an evolving theoretical literature in economics and international relations points to motivations for why WTO negotiators might have good reason to negotiate an agreement that in many ways represents the writing of an “incomplete” contract. For the case of the WTO, an important implication of this is that recourse to the DSU then ends up filling some of the missing elements of the incomplete contract over time. Given particular elements associated with how the voluntary DSU process operates in practice, how the DSU ends up completing the WTO contract has tremendous implications for the rights and obligations of members, as well as the coverage and scope of the agreement and institution. Anecdotal evidence at least suggests that this “creeping” process - which is an important element of the current legalisation - occurs in an uneven fashion. The combined theories on the interface between the WTO and DSU suggest competing forces are at work – some in favour of completing the contract and some against it. Empirically, this project focuses on trade remedies.