Global Trade-Enabling Law

Trade regulation may never have been in more flux than it is nowadays. Apart from the emergence of ‘megaregionals’ (more recently, the Regional Comprehensive Economic Partnership – RCEP, or the Comprehensive and Progressive Trans-pacific Partnership–CPTPP) and the difficulties in pursuing the objectives of the Doha Development Agenda, the increased heterogeneity of interests within the World Trade Organization (WTO) puts into question its ability to achieve its central objective of free(r) trade. While internally rethinking the future of the WTO, it seems opportune to discuss, and factor in the realities of everyday global trade. To this end, this Article argues that the stateless reality of commercial transactions requires that state-driven, trade-related rule-making and stateless rule-making should be analysed in tandem if we are to make any sense of how global trade works and evolves. It further advocates a new theory of global trade-enabling law that focuses on a critical review of all rules that aim to mitigate legal risks of economic actors when they partake in transboundary commercial activities. This theory would emerge from a norm-user perspective that focuses on the functionality of the law. The Article suggests that global trade law-related research should focus on and evolve around three, broadly-defined axes: first, the identification and critical review of a set of principles akin to the global law advocacy; second, the analysis of the phenomenon of the empowerment of non-State constituencies, including firms, and a more intensive bridge-building with not only the semiautonomous regimes of transnational private regulators but also with other international organizations (IOs) (be it governmental, non-governmental or hybrid), whose activities have an impact on commercial transactions; and, third, the intensification of the still scattered, unsuccessful efforts to create a more inclusive global trading system brimming with development opportunities for all. Action in these three areas shall determine the sustainability and resilience of global trade law