THE POSITION OF the European Commun

THE POSITION OF the European Community in the unfolding narrative of international trade and economic law in the period since the end of World War II is unique, and uniquely problematic. In many ways, the integrationist ambitions of the EC have tracked those of the world trading system, previously embodied in the General Agreement on Tariffs and Trade (GATT), and now the World Trade Organisation (WTO). As the scope and ambition of the global trading regime expanded, so the EU moved closer towards the establishment of a “European economy”. The EU is, along with the United States, one of the two “titans” of the GATT/WTO system. While the WTO is the single most important external entity with which the European economy must come to terms, so too is the EU seen as one of the most formidable players at the WTO. The number of scholars literate in both systems, and able to analyse their relationship, remains strikingly small. As the world trading system extends its reach into new subject areas, as it continues its drive towards genuine judicial procedures, and as WTO disputes proliferate and gain in complexity, there is an increasingly urgent need for the system to be made more intellectually accessible. Unfortunately, the voluminous quality of the panel and Appellate Body decisions, and the forbidding technicality of the underlying agreements, has meant that the “audience” for this subject remains the academically intrepid, despite the ever more profound effects of the WTO on our lives. It is with this in mind that this book has been undertaken. As the trading system becomes more truly “legal”, there is a clear necessity to subject its terms to academic scrutiny. Unfortunately, it often proves exceedingly difficult to find the right guide to such a study. I have approached the book on the theory that there are those who, even if well versed in economics and/or in international law, nevertheless find the “law” of the WTO too impenetrable, and thus tend to turn away from the task of mastering it. The contrast between scenes of protest on the streets of cities where economic summits take place, and the process of reading a WTO panel report, is stark; academic explorations of WTO law tend to be ponderously self-referential, and much of the protest against it mainly visceral. In fact, despite its numbingly technical appearance, contemporary trade and economic law is an engaging reflection of the major themes of our time. The
degree to which we decide to cede national sovereignty to international trade institutions, particularly the WTO, will determine the overriding values of our world for decades to come. It is impossible to form an accurate sense of whether this is a direction we should take, if we do not have ready access to this developing area of the law, and the opportunity to place it in historical context. In addition to accessibility and intelligibility, there has been a profound failure to generate a conceptual framework for even considering the desirability or otherwise of recent developments in international trade law. It is absolutely natural for there to be a comparison drawn between the EU and the WTO, since these two systems provide contrasting models of economic integration. But as I will attempt to show, there is far more to compare in this regard than the techniques of economic de-nationalisation employed by the two systems. The EU provides the only contemporary evidence that in fact complex, multidimensional, supranational regime-building is possible. The principal point is not the relative stringency of the two systems vis-à-vis national regulatory freedom; rather, it is the degree to which supranational governance might dare to embrace both the public and the private interest. In this regard, the academic community, and that still small group of scholars with access to the legal techniques employed by both the EU and the WTO must begin to analyse in terms capable of resonating in a larger intellectual world. The WTO is the largest and most important set of trade obligations with which the EU must deal; at the same time, the EU is the most important counter-model with which the WTO must deal. Both models must be re-evaluated in light of their underlying rationales; yet it would appear that most discussion still focuses on the legal symbols tossed up on the shore by each system. Understanding of the WTO system in particular must be re-connected to the world in which it operates. Only in that way can we understand what the EU has to offer an evolving global governance, and only then can we see what the EU stands to lose from too close an encounter with the WTO as it is presently configured. In key ways, the relationship of the EU to the WTO system is more subtle and complex that that of the US to the WTO. On the one hand, there are two distinct schools of thought in Europe as to whether the developing European entity should be increasingly based on free trade/neo-liberal principles, or instead remain firmly in the tradition of “social Europe”. (It is surely the case that the neo-liberal wing, though, stops far short of advocating the sort of “law and economics” vision so popular in American law schools. While many might advocate a leaner and more competitive Europe, socially conscious policy is so entrenched in even the European right wing that its complete demise is unthinkable. This is a factor that is insufficiently understood in the US.) Having struggled for decades with stubborn Member State allegiances to national economies, and the wish of the Member States to protect national social and cultural features against the demands of Community law, the EU as a whole is now faced, and faced dramatically, with the problem of how to configure itself within the WTO order. What effect will the EU’s participation in the WTO have on its
2 Introduction
internal regulatory values? And, even more interestingly, can Europe be—or does it wish to be—a genuine counterweight to the US in the construction of real and effective global legal values? In terms of the recent past, the question might be posed: Did the creation of the European Single Market take as its main purpose the more effective protection of a Europe already enormously changed by the demands of that market; or, alternatively, was the Single Market programme merely a step along the path towards a truly efficient, “reformed” Europe, whose ideals will come to resemble more closely those of the WTO? In the EU, internal stringency in economic integration has not necessarily translated into greater adherence to free trade principles at global level. To paraphrase the European Court of Justice, the EU is not simply about economics; indeed, it is possible that its central internal economic requirements, necessary for integration, have had as their main purpose the preservation of non-economic values. But there is no easy formula for determining what the EU “wants to be”, and what relationship with the larger trading world will assist in the achievement of such a collective goal, assuming it can be identified. While the United States reacts more vocally to fears of losing “national sovereignty” to the WTO, it is clear that the EU is not in a position to emphasise loss of sovereignty, having invested decades in downgrading the concept of national sovereignty. Unlike the case of the European debate over the WTO, the question of whether the United States is somehow standing in the way of America’s transnational businesses by WTO-illegal forms of protectionism is not really a major issue. One reason for this is that the US has for much longer taken market-based values as its mainstream creed; it is not especially traumatised by the thought of the WTO imposing a greater degree of market discipline. Its objections are political, perhaps best understood by analogy to national security concerns. What’s more, the American states have hardly considered themselves in the guise of sovereign rivals to the United States—at least not in the modern period. In that sense, the US has little to fear from the discourse of “sovereignty”. This also means that while Europe can protest that its own vision of a socially protective and humane life for its citizens is threatened by the excesses of WTO, there is perhaps less conceptual resistance than in the United States to the notion of the supremacy of external rules, rules based on abstract ideas of the market, rather than more complex inputs, including social policy. In a continuing historical parallel, both the EU and the WTO are still “in evolution”, while by contrast the United States is more conceptually static, and will likely be far less affected in its central character by its relationship with the WTO. The United States is not a rival model of integration to the WTO; the EU is. (The North American Free Trade Association (NAFTA) could hardly be said to qualify, as important as it is in raw economic terms.) So one underlying question posed here will be whether the EU is, through the agency of WTO law, seeking to maintain the notorious “fortress Europe” of

Kết quả (Việt) 1:

Vị trí của các cộng đồng châu Âu trong câu chuyện unfolding của thương mại quốc tế và luật kinh tế trong giai đoạn từ cuối chiến tranh thế giới thứ hai là duy nhất, và duy nhất có vấn đề. Trong nhiều cách, tham vọng integrationist của EC đã theo dõi những người trong thế giới kinh doanh hệ thống, trước đây được thể hiện trong Hiệp ước chung về thuế quan và mậu dịch (GATT), và bây giờ tổ chức thương mại thế giới (WTO). Như phạm vi và tham vọng của chế độ kinh doanh toàn cầu mở rộng, vì vậy EU chuyển địa điểm gần nhất đối với việc thành lập một "nền kinh tế châu Âu". EU là, cùng với Hoa Kỳ, một trong hai "khổng lồ" của hệ thống GATT/WTO. Trong khi WTO là thực thể bên ngoài duy nhất quan trọng nhất mà nền kinh tế châu Âu phải đến với các điều khoản, như vậy cũng là EU coi là một trong những cầu thủ ghê gớm nhất tại WTO. Một số học giả biết chữ trong cả hai hệ thống, và có khả năng phân tích mối quan hệ của họ, vẫn còn nổi bật nhỏ. Như là thế giới kinh doanh hệ thống mở rộng tiếp cận của nó vào khu vực chủ đề mới, như nó vẫn tiếp tục lái xe của nó đối với các thủ tục pháp lý chính hãng, và khi tranh chấp WTO sinh sôi nảy nở và đạt được phức tạp, có là một nhu cầu ngày càng cấp bách cho hệ thống được thực hiện nhiều trí tuệ có thể truy cập. Thật không may, chất lượng đồ sộ của bảng điều khiển và các quyết định phúc thẩm cơ thể, và yêu cầu kỹ thuật cấm các thỏa thuận cơ bản, có nghĩa là "đối tượng" cho chủ đề này vẫn còn dũng cảm học tập, mặc dù những ảnh hưởng sâu sắc hơn bao giờ hết của WTO vào cuộc sống của chúng tôi. Đó là với điều này trong tâm trí rằng cuốn sách này đã được thực hiện. Như hệ thống thương mại trở thành hơn nữa thực sự "pháp lý", đó là một điều cần thiết rõ ràng để chịu các điều khoản để giám sát học tập. Thật không may, nó thường đã chứng minh vượt difficult nhiều các hướng dẫn bên phải để một nghiên cứu. Tôi đã tiếp cận cuốn sách về lý thuyết rằng có là những người, ngay cả khi cũng versed trong kinh tế và/hoặc trong luật pháp quốc tế, Tuy nhiên nhiều "pháp luật" của WTO quá không thể hiểu được, và do đó có xu hướng để bật ra khỏi nhiệm vụ làm chủ nó. Sự tương phản giữa những cảnh của cuộc biểu tình trên các đường phố của thành phố nơi hội nghị thượng đỉnh kinh tế diễn ra, và quá trình đọc một báo cáo bảng WTO, là ngay đơ; học khám phá của WTO luật có xu hướng chạp self-referential, và hầu hết cuộc biểu tình chống lại nó chủ yếu là nội tạng. Trong thực tế, mặc dù dáng numbingly kỹ thuật, thương mại hiện đại và luật kinh tế là một reflection hấp dẫn của các chủ đề chính của thời đại chúng ta. Cácdegree to which we decide to cede national sovereignty to international trade institutions, particularly the WTO, will determine the overriding values of our world for decades to come. It is impossible to form an accurate sense of whether this is a direction we should take, if we do not have ready access to this developing area of the law, and the opportunity to place it in historical context. In addition to accessibility and intelligibility, there has been a profound failure to generate a conceptual framework for even considering the desirability or otherwise of recent developments in international trade law. It is absolutely natural for there to be a comparison drawn between the EU and the WTO, since these two systems provide contrasting models of economic integration. But as I will attempt to show, there is far more to compare in this regard than the techniques of economic de-nationalisation employed by the two systems. The EU provides the only contemporary evidence that in fact complex, multidimensional, supranational regime-building is possible. The principal point is not the relative stringency of the two systems vis-à-vis national regulatory freedom; rather, it is the degree to which supranational governance might dare to embrace both the public and the private interest. In this regard, the academic community, and that still small group of scholars with access to the legal techniques employed by both the EU and the WTO must begin to analyse in terms capable of resonating in a larger intellectual world. The WTO is the largest and most important set of trade obligations with which the EU must deal; at the same time, the EU is the most important counter-model with which the WTO must deal. Both models must be re-evaluated in light of their underlying rationales; yet it would appear that most discussion still focuses on the legal symbols tossed up on the shore by each system. Understanding of the WTO system in particular must be re-connected to the world in which it operates. Only in that way can we understand what the EU has to offer an evolving global governance, and only then can we see what the EU stands to lose from too close an encounter with the WTO as it is presently configured. In key ways, the relationship of the EU to the WTO system is more subtle and complex that that of the US to the WTO. On the one hand, there are two distinct schools of thought in Europe as to whether the developing European entity should be increasingly based on free trade/neo-liberal principles, or instead remain firmly in the tradition of “social Europe”. (It is surely the case that the neo-liberal wing, though, stops far short of advocating the sort of “law and economics” vision so popular in American law schools. While many might advocate a leaner and more competitive Europe, socially conscious policy is so entrenched in even the European right wing that its complete demise is unthinkable. This is a factor that is insufficiently understood in the US.) Having struggled for decades with stubborn Member State allegiances to national economies, and the wish of the Member States to protect national social and cultural features against the demands of Community law, the EU as a whole is now faced, and faced dramatically, with the problem of how to configure itself within the WTO order. What effect will the EU’s participation in the WTO have on its2 Introductioninternal regulatory values? And, even more interestingly, can Europe be—or does it wish to be—a genuine counterweight to the US in the construction of real and effective global legal values? In terms of the recent past, the question might be posed: Did the creation of the European Single Market take as its main purpose the more effective protection of a Europe already enormously changed by the demands of that market; or, alternatively, was the Single Market programme merely a step along the path towards a truly efficient, “reformed” Europe, whose ideals will come to resemble more closely those of the WTO? In the EU, internal stringency in economic integration has not necessarily translated into greater adherence to free trade principles at global level. To paraphrase the European Court of Justice, the EU is not simply about economics; indeed, it is possible that its central internal economic requirements, necessary for integration, have had as their main purpose the preservation of non-economic values. But there is no easy formula for determining what the EU “wants to be”, and what relationship with the larger trading world will assist in the achievement of such a collective goal, assuming it can be identified. While the United States reacts more vocally to fears of losing “national sovereignty” to the WTO, it is clear that the EU is not in a position to emphasise loss of sovereignty, having invested decades in downgrading the concept of national sovereignty. Unlike the case of the European debate over the WTO, the question of whether the United States is somehow standing in the way of America’s transnational businesses by WTO-illegal forms of protectionism is not really a major issue. One reason for this is that the US has for much longer taken market-based values as its mainstream creed; it is not especially traumatised by the thought of the WTO imposing a greater degree of market discipline. Its objections are political, perhaps best understood by analogy to national security concerns. What’s more, the American states have hardly considered themselves in the guise of sovereign rivals to the United States—at least not in the modern period. In that sense, the US has little to fear from the discourse of “sovereignty”. This also means that while Europe can protest that its own vision of a socially protective and humane life for its citizens is threatened by the excesses of WTO, there is perhaps less conceptual resistance than in the United States to the notion of the supremacy of external rules, rules based on abstract ideas of the market, rather than more complex inputs, including social policy. In a continuing historical parallel, both the EU and the WTO are still “in evolution”, while by contrast the United States is more conceptually static, and will likely be far less affected in its central character by its relationship with the WTO. The United States is not a rival model of integration to the WTO; the EU is. (The North American Free Trade Association (NAFTA) could hardly be said to qualify, as important as it is in raw economic terms.) So one underlying question posed here will be whether the EU is, through the agency of WTO law, seeking to maintain the notorious “fortress Europe” of