International Trade as Constitutional law

["Ian Murray" <seamus2001@xxxxxxxx>]

< http://www.ejil.org/journal/Vol12/No1/art1.pdf >

Abstract
International trade is undergoing a transformation commonly referred
to as 'constitutionalization'. Despite the ubiquity of the phrase, its
meaning remains ambiguous and its significance underexplored. The
purpose of this article is to suggest that one plausible
interpretation of 'constitutionalization' in the international trade
law context is that it refers to the generation of a set of
constitutional-type norms and structures by judicial decision-making
in the Appellate Body of the World Trade Organization. Unlike the work
of John Jackson, Ernst-Ulrich Petersmann and Joseph Weiler
(emphasizing institutions, rights and metaphysics respectively), this
article will focus on judicial constitutionalization. Four trends will
illustrate this: constitutional doctrine amalgamation, system
constitution, subject matter incorporation, and constitutional value
association. The identification of these trends reveals the underlying
structure of the constitutionalization debate. Visible through the
tribunal's carefully crafted formulations of rules and justifications
are the mainstay principles of constitutional reasoning (democracy and
governance, constitutional design, fairness, and allocation of policy
responsibility). Ultimately the arguments presented here convert the
discussion from a debate about whether the WTO is a constitution into
a set of speculations on the nature of international trade, and on the
valency of the idea of constitutionalization.