Constitutionalism, Multilevel Trade Governance and Social Regulation

by Christian Joerges, Federico Ortino, Ernst-Ulrich Petersmann, Gabrielle Marceau, Gregory Shaffer

Overview

This is a book about the ever more complex legal networks of transnational economic governance structures and their legitimacy problems. It takes up the challenge of the editors' earlier pioneering works which have called for more cross-sectoral and interdisciplinary analyses by scholars of international law, European and international economic law, private international law, international relations theory and social philosophy to examine the interdependences of multilevel governance in transnational economic, social, environmental and legal relations. Two complementary strands of theorising are expounded. One argues that globalisation and the universal recognition of human rights are transforming the intergovernmental "society of states" into a cosmopolitan community of citizens which requires more effective constitutional safeguards for protecting human rights and consumer welfare in the national and international governance and legal regulation of international trade. The second emphasises the dependence of the functioning of international markets and liberal trade on governance arrangements which respond credibly to safety and environmental concerns of consumers, traders, political and non-governmental actors. Enquiries into the generation of international standards and empirical analyses of legalization and judizialisation practices form part of this agenda.

The perspectives and conclusions of the more than 20 contributors from Europe and North-America cannot be uniform. But they converge in their search for a constitutional architecture which limits, empowers and legitimises multilevel trade governance, as well as in their common premise that respect for human rights, private and democratic self-government and social justice require more transparent, participatory and deliberative forms of transnational "cosmopolitan democracy".

Product Details

ISBN-13:	9781841136653
Publisher:	Bloomsbury Academic
Publication date:	10/01/2006
Series:	Studies in International Trade and Investment Law , #9
Edition description:	New Edition
Pages:	566
Product dimensions:	6.14(w) x 9.21(h) x 1.31(d)

About the Author

Christian Joerges is Professor of Economic Law at the European University Institute, Florence. He is on leave from the University of Bremen where he was a Director of the Centre for European Law and Policy.



Ernst-Ulrich Petersmann is Professor of International and European Law at the European University Institute at Florence and Joint Chair at the Robert Schuman Centre for Advanced Studies in Florence, Italy. He was formerly Professor at the University of Geneva and its Graduate Institute of International Studies, and legal adviser in GATT and the WTO

Table of Contents

Preface and Acknowledgements v

List of Contributors xi

Abbreviations xvii

Introduction and Overview xxi

Section I International Trade Law: Constitutionalisation and Judicialisation in the WTO and Beyond 1

Section I.1 Constitutionalisation and the WTO: Two Competing Visions from Two Different Disciplines 3

1 Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism Ernst-Ulrich Petersmann 5

2 Democratize Legitimacy of Transnational Trade Governance A View from Political Theory Patrizia Nanz 59

Section I.2 Judicialisation: Empirical Inquiries and Constitutional Concerns 83

3 Dispute Settlement under GATT and WTO: An Empirical Enquiry into a Regime Change Achim Helmedach Bernhard Zangl 85

4 The Appellate Body's 'Response' to the Tensions and Interdependencies Between Transnational Trade Governance and Social Regulation Christiane Gerstetter 111

Section I.3 Participatory Governance: Emerging Patterns and their Juridification 133

5 Why Co-operate? Civil Society Participation at the WTO Jens Steffek Claudia Kissling 135

6 Participatory Transnational Governance Rainer Nickel 157

Section I.4 Legalisation Patterns outside the WTO 197

7 Non-Traditional Patterns of Global Regulation: Is the WTO 'Missing the Boat'? Joost Pauwelyn 199

8 Conflicts and Comity in Transnational Governance: Private International Law as Mechanism and Metaphor for Transnational Social Regulation through Plural Legal Regimes Robert Wai 229

Section II Transnational Governance Arrangements for Product Safety 263

Section II.1 Food Safety Regulation: the SPS Agreement and the Codex Alimentarius 265

9 Fixing the Codex? Global Food-SafetyGovernance Under Review Thorsten Huller Matthias Leonhard Maier 267

10 The Precautionary Principle in Support of Practical Reason: an Argument Against Formalistic Interpretations of the Precautionary Principle Alexia Herwig 301

11 Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism Elizabeth Fisher 327

12 Administrative Globalisation and Curbing the Excesses of the State Damian Chalmers 351

Section II.2 The TBT Agreement and International Standardisation 381

13 A New Device for creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and 'International Standards' Robert Howse 383

14 The Empire's Drains: Sources of Legal Recognition of Private Standardisation under the TBT Agreement Harm Schepel 397

Section III The WTO and Transnational Environmental Governance 411

15 Global Environmental Governance and the WTO: Emerging Rulesthrough Evolving Practice: The CBD-Bonn Guidelines Christine Godt 413

16 Environmental Policies and the WTO Committee on Trade and Environment: A Record of Failure? Ulrike Ehling 437

17 Facing the Global Hydra: Ecological Transformation at the Global Financial Frontier: The Ambitious Case of the Global Reporting Initiative Oren Perez 459

Section IV Epilogue 489

18 Constitutionalism in Postnational Constellations: Contrasting Social Regulation in the EU and in the WTO Christian Joerges 491

Index 529

Editorial Reviews

This book makes a substantial contribution...It is essential reading for all scholars and students interested in the mind-boggling challenges and complexities of multilayered governance for democracy in a world of globalised markets…All the papers, in their own way, offer rich insights from very different angles…For the lawyer, the contributions by political scientists are particularly helpful in understanding the doctrine of legitimacy and deliberative democracy. They assist in advancing legal thinking. The same is likely true for the legal papers, which could assist the political scientist and economist in coming to grips with the complexities of multilevel trade governance.” —Jourbanal of International Economic Law

“The arguments, findings and suggestions are of such richness in advancing the knowledge of interconnections between various layers and sources of law in balancing trade and market liberalization with non-economic considerations, that the reader will be in the position to increasingly appreciate this project only after repeated reading. And he/she will never be disappointed by the inspiration which the book sparks on the international/trans-national constitutionalism discourse.” —Common Market Law Review, Volume 44, Issue 5

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