WTO Law

Chios Carmody's article, "A Theory Of WTO Law" begins with establishing that the WTO is one of the cornerstones of international law, yet there is a lack of understanding regarding a specific theory of systematic functioning. Carmody notes that this particular theory should provide knowledge regarding what the legal system has understood the WTO to be and what it actually should be. One of the major aspects of the WTO agreement, according to Carmody, is that after all of this time, the law still is trying to observe a legal theory that explains the basic questions of the WTO. Carmody's main goal with the article is to examine the purposes within each element of the WTO: expectations, realities, and interdependence.

There is a WTO law vacuum according to Carmody and as a consequence of such a problem, it has left the organization being interpreted as either very detailed or precise or in generalities. Carmody states that there have been articles before his that speak on the WTO Agreement in an effort to bring together a theory to discuss it, but their focus has been predominantly on cases pertaining to the WTO or certain provisions rather than a connecting theory associated with the agreement as to close the problem of the vacuum. Carmody states that an important part of the agreement is rights and obligations, which are often thrown into the discussion on WTO law. Thus, there is a need to consider rights and obligations first noting that "while we might consider the presumptive relationship between rights and obligations to be one of the correspondence, that is each right is matched by a single obligation, [there are] two features [that] operate to modify the traditional jural relationship in WTO law."   

For Carmody, the first is the most favored nation clause which in effect causes these obligations to become owned entirely by the WTO thereby rendering them collective obligations. The second is the nature of trade behavior that is bilateral in certain circumstances, but absolute on occasion. This leads to a hybrid theory regarding the WTO agreement entirely. There appears to be a divide associated with the WTO Agreement with regard to obligations and rights. Where rights are observed as a collective insight, rights are exercised individually, "[which] promotes two competing visions of justice."   Carmody points out that in addition to this distributive type of justice pertaining to the WTO Agreement that a corrective type is also within the WTO law. The corrective aspect of WTO law seeks to repair the problems that happen when "countries exercise their individual rights to take actions."   

As time has passed, the WTO agreement has in effect created a linking between rights and obligations that Carmody describes as "lex specialis, a special law because in many instances [the WTO Agreement] does not conform to the normal consequences of state responsibility and justice [as a kind of] transformative way of strengthening the relationships”   of the countries that are associated with the WTO Agreement.

Following that discussion, Carmody sets out to describe the purpose of deriving a theory associated with WTO law by first outlining what a theory is and why WTO law needs on. There are five reasons for Carmody that are necessary to describe a theory of WTO law: descriptive, where the law can be "fit [into] various parts of commonly accepted jurisprudential categories,"    analytic, which describes the key items within the law and their respective interaction; teleologic, which will provide a better sense of the law as a "social phenomenon;"   normative, which affords the legal system a better understanding of the law and how it is "linked to justice;" and explanatory, which will in effect explain why other theories that have been expressed before on WTO law have not worked.

Next, Carmody describes his theory of WTO Law. First, he describes why the theory must protect expectations. Carmody presents examples such as the "concession by the United States to grant a certain tariff on textiles [as] a promise by the US government to treat textile imports in a certain way."    It is here that Carmody discusses the most favored nation clause and the consequences of the language that makes the WTO obligated to all countries within the agreement. Following that, Carmody notes that there is a kind of generality associated with the obligations, which is in itself problematic because there is no conformity with the treaty as a result of this and this, in turn, presents "difficult[y] with certainty who is harmed"  when there is an issue.

Carmody then presents a discussion on the law of rights and its application to the WTO Agreement and how the conditionality of the agreement often results in issues. There is a suggestion here that because of the issues that have resulted from this strict conditionality, that the language could be altered a bit to relax the conditional arguments that happen in dispute settlements. To Carmody, the rights have been diminished as a consequence of the conditionality. Carmody references the Argentina - Footwear Safeguards, where the issue "was whether Argentina met the requirements to impose safeguards on imports of footwear from the EC."   

In the particular case, the Appellate Body "observed [that] it must always be remembered that safeguard measures result in the temporary suspension of concessions, litigations, or withdrawal of obligations."   This highlight, according to Carmody, is a kind of inductive reasoning, which is rationale based solely on presented evidence in a given situation. Carmody notes that requirements for evidence tend to vary depending upon the particulars of the case before the Appellate Body. Carmody further points out that another feature of that limits the rights within the agreement is mutuality. "WTO law as a law of rights cannot be exercised in such a way as to eviscerate the rights of other WTO members,"   notes Carmody. This statement essentially states that the rights of one member of the organization cannot be abused and subsequently remove the rights of other members within the same organization.  

Carmody moves into a discussion on lex specialis and how the obligations and rights associated with WTO law is an attractive framework because there is not an immovable meaning that pertains to that framework. As a result of the lex specialis that is within the WTO agreement, Carmody states that the WTO agreement has to be examined from both a bilateral and multilateral point of view because of the obligations associated with it. 

Carmody expresses that the hybrid theory of WTO law "is a good way to think about WTO obligations [and] that the immediate overarching purpose of WTO law is the promotion of interdependence, that comes about as a result of the interaction of rights and obligations."   This Carmody believes will promote a "shift in thinking [regarding the] law [of] what might be, which is abductive logic."   With abductive logic, the law "is based on what will occur in the future based on a transformative framework."   That statement is written to explain the theory that Carmody has presented as being a model for new situations that arise as a consequence of international law.    

Carmody concludes by discussing how his aforementioned reasoning will clear up the issues pertaining to WTO law and how the agreement is, in reality, a hybrid and should be looked at as such. Carmody expresses that his theory, while complex and somewhat reasonable, cannot fully be summed up even in the article of what WTO law actually is.

Bibliography

Chios Carmody, "A Theory of WTO Law" (2008) 11:3 J Int'l Econ L