Competing Transnational Regimes under WTO Law

AuthorCarola Glinski
PositionCollaborative Research Centre ?Transformations of the State', University of Bremen, Germany
Pages44-67
Carola Glinski, ‘Competing Transnational Regimes under WTO Law’ (2014)
30(78) Utrecht Journal of International and European Law 44, DOI: http://
dx.doi.org/10.5334/ujiel.cc
I. Introduction
Economic globalisation and its accompanying international legal framework has led to a decrease of the
regulatory power of the national parliamentary system related to the balancing of (transnational) economic
interests with social and environmental protection aims. This regulatory power cannot be replaced by com-
parable (public) international law making – neither in content nor with respect to legitimacy considerations.
At the same time, various forms of Corporate Social Responsibility (CSR) instruments have been developed,
in particular labels and codes of conduct, in order to address regulatory gaps. These initiatives include rules or
regulatory programmes negotiated between different stakeholder groups, voluntary rules initiated by national,
supranational or international institutions or by NGOs, but also the unilaterally adopted ‘self’-regulation of
transnational corporations related to social and environmental aspects of their activities (‘corporate social
responsibility’).1 These private rules have gained enormous practical importance for the regulation of public
goods such as health and safety concerns, working conditions or the environment. The question remains,
however, whether and under which conditions that practical importance may also lead to legal effects, in par-
ticular by producing legal standards for socially and environmentally responsible corporate activities.
Traditionally oriented scholars insist on the exclusive validity of classical State law and the respective legiti-
macy chains;2 which seems to exclude any legal relevance of private regulation. Another school of thought based
on systems theory represents the other end of the spectrum, recognising private (self-) regulation in the different
1 On the various forms of private regulation see also Martin Herberg, Globalisierung und private Selbstregulierung (Campus Verlag
2007); Olaf Dilling and Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and the Law in Transnational
Economic Transactions (Hart Publishing 2007).
2 See Hans-Joachim Koch, Das Subsidiaritätsprinzip im Europäischen Umweltrecht (Boorberg 2005) 44 ff. Gerd Winter, ‘Subsidiarität
und Legitimation in der europäischen Mehrebenenverwaltung’ (2004) TranState Working Paper No 6; Markus Krajewski, ‘Legiti-
mizing global economic governance through transnational parliamentarization: The parliamentary dimensions of the WTO and
the World Bank’ (2010) TranState Working Papers No 136; Armin von Bogdandy, ‘Law and Politics in the WTO – Strategies to Cope
with a Deficient Relationship’ [2001] Max Planck Yearbook of United Nations Law 609, 609 ff.
Against a common perception of CSR being a business concept without binding legal eect, this
article discusses legitimate legal eects of private standards in public international law, using
the issue of private labels as “international standards” under WTO law. WTO law shows certain
openness for external transnational standards. This article argues that the references to “inter-
national standards” in the TBT Agreement can be applied for the selection between competing
public or private norms that claim relevance. Thereby, the most legitimate standard for govern-
ing the problem at issue should be chosen. This is exemplied with the case of
Tuna Dolphin II
where the Appellate Body has emphasised the requirement of procedural legitimacy. The article
argues that the requirements for legitimate standards depend on the interests at stake and
that a private standard can well be more legitimate than a (competing) public standard. As the
justifying eect of Article 2.5 TBT mainly interferes with economic interests, a relevant “inter-
national standard” may well consist of a representative business standard, e.g. a private label.
In contrast, an international standard in the terms of Article 2.4 TBT which interferes with a
democratic decision in favour of public interests such as environmental protection must reect
these public interests in a legitimate way. The article concludes that CSR can play an important
role in dening legally valid justifying or minimum standards in public international law.
RESEARCH ARTICLE
Competing Transnational Regimes under WTO Law
Carola Glinski*
* Collaborative Research Centre ‘Transformations of the State’, University of Bremen, Germany
cglinski@uni-bremen.de
Keywords: private label; international standard; TBT Agreement; procedural legitimacy
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
Glinski 45
sectors of society as ‘societal constitutionalism’ and even replacing State law with the respective plurality of pri-
vate legal regimes.3 This latter approach, however, bears the risk of loss of legitimacy, of a pure codification of
economic or social power and of insufficient consideration of third party interests and of the public interest.4
More recent legal theory tries to (re-) conceptualise and constitutionalise the various forms of regulation
‘beyond the state’ and the need for legitimacy. So-called ‘big-C-Constitutionalism’ ideas that try to concep-
tualise the ‘big picture’ with focus on top-down approaches5 still wait for their realisation. So-called ‘small-
c-constitutionalism’ ideas focus on bottom-up approaches. One of the ‘small-c’-approaches is the idea of a
conflicts-law-constitutionalism. The idea is to raise awareness of democratic deficiencies at the different lev-
els of regulation and to compensate for them, for example through recognition of other levels of regulation,
thereby drawing on the democratic ideal of consensus and common welfare of those affected by regulation.
The element of consensus is meant to bridge the gap between participation and concern (in quality and
degree) as much as possible. This approach does not aim at the enactment of a new body of law but at the
re-interpretation and re-construction of existing frameworks.6
By drawing on this idea of a collisions-law-constitutionalism, this article uses general clauses and other
normative references of State law or public international law as ‘collision norms’ which can be applied and
designed as a framework for a differentiated selection between competing public or private norms that
claim relevance in a certain situation. In applying such general clauses, the most legitimate public or private
regime or standard for governing the problem at issue should be chosen. Democratic deficiencies at one
level of regulation should preferably be compensated through the recognition of other levels of regulation
where the relevant interests are reflected. More concretely, this article explores the legitimate potential of
‘private norms’ for the governance of ‘public goods’7 and tries to adjust the relation between world trade and
the protection of public interests.
After some preliminary considerations related to the legitimacy of law (II.1.) and its classical construction
over ‘legitimacy chains’ based in democratic Nation States (II.2.), this article briefly highlights the regulatory
problems and legitimacy deficiencies related to economic globalisation and the World Trade Organisation
(WTO) (II.3.). Then, the approach of mutual compensation of legitimacy deficiencies in a multilevel regula-
tory framework is introduced in short (II.4.). Alternative or complementary strands of legitimacy could be
based on: participation and deliberation (II.5.a.), stakeholder representation, (II.5.b.), standardisation and
deliberation (II.5.c.) and self-regulation and normative generalisation (II.5.d.). Legitimacy requirements for
the normative generalisation of private self-regulation – especially with view to the interests concerned -
depend on the legal effect of the normative reference in question. One important aspect hereby is, whether
the reference establishes a ‘minimum’ or an ‘absolute’ or a ‘maximum standard’. The chapter is completed
by considerations on requirements for ex ante consensus and ex post acceptance or recognition (II.6.). After
an analysis of the role and the notion of ‘international standards’ in the Agreement on Technical Barriers
to Trade (TBT Agreement or TBT) (III.), these theoretical considerations will be exemplified with a view to
Tuna Dolphin II’,8 thereby differentiating between the requirements of a ‘minimum’ or ‘justifying’ standard
according to Article 2.5 TBT and a ‘maximum’ or ‘limiting’ standard according to Article 2.4 TBT (IV.). The
article concludes that there is room for the recognition of private standards in WTO law, namely as ‘justify-
ing’ international standards according to Article 2.5 TBT and that a private standard can in fact be more
3 See Gunther Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law without a State
(Ashgate 1997), 3-28; Gunther Teubner, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie’ (2003)
63 Zeitschrift für auslädisches öffentliches Recht und Völkerrecht 1, 1 ff.; Gunther Teubner, ‘Societal Constitutionalism: Alterna-
tives to State-Centred Constitutional Theory?’ in Christian Joerges and Inger-Johanne Sand and Gunther Teubner (eds), Transna-
tional Governance and Constitutionalism (Hart Publishing 2004), 3-28; Gunther Teubner, Verfassungsfragmente: Gesellschaftlicher
Konstitutionalismus in der Globalisierung (Suhrkamp 2012); Gralf-Peter Calliess and Moritz Renner, ‘Between Law and Social Norms:
The Evolution of Global Governance’ (2009) 22 Ratio Juris 260, 260 ff.
4 See eg Klaus Günther, ‘Rechtspluralismus und universaler Code der Legalität: Globalisierung als rechtstheoretisches Problem’ in
Lutz Wingert and Klaus Günther (eds), Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit (Suhrkamp 2001), 539, at
541, 556 ff.
5 See Mattias Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and
beyond the State’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism (Oxford University Press 2010),
258, at 260 f.
6 Christian Joerges, ‘Perspektiven einer kollisionsrechtlichen Verfassung transnationaler Märkte’ (2011) TranState Working Papers
No 146.
7 The qualification as ‘private norms’ refers to the private authors of the norm as opposite to State law. ‘Public goods’ are usually
defined as goods that are non-rival and non-excludable like a clean environment or social security. Within the traditional Nation
State, public goods are usually provided for by the State. In a transnational system, however, exclusive State responsibility for pub-
lic goods is less obvious.
8 United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381.

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