A Communication Theory of WTO Law: Abridged Version

The question persists whether the WTO Agreement and its dispute settlement system can be traced to a theory. This chapter is an abridgement of the first chapter of a forthcoming monograph, Chios Carmody, A Communitarian Theory of WTO Law, which puts forward such a theory. It explains the principal features of WTO law as elements of a generally distributive and equality-oriented legal system expressed chiefly in the form of obligations. Only exceptionally do WTO rules focus on corrective justice and fairness in the form of rights. Ultimately, the two modes of law depend upon each other to generate a third, overarching mode in the form of a sui generis legal system. Whereas at the time of the WTO's founding in 1995 the unconditional interdependence called for in the WTO Agreement might have placed emphasis on law in the first mode, that is, on obligations, and have been regarded as beneficial, today it is seen as less so. Consequently, the collective good of the organization appears to be splintering into an emphasis on rights embodied in individual bilateral trading relationships. In this fragmented environment support for the organization and its dispute settlement system has ebbed. Nevertheless, there appears to be recognition of the residual worth of the treaty and its dispute settlement system as a locus for transformative solutions.