| dc.description.abstract | This dissertation offers a new perspective from which to view and understand the WTO regime and its participants. The central feature of that new perspective is the concept of legal indigenization. This term generally refers to the process or ideology in which domestic authorities make and implement international or domestic rules in a way appealing to their native features (especially legal traditions), as responses to globalization led by a defective global legal system. The dissertation's core thesis is that the key elements of the legal tradition and culture of a society or political system inevitably and fundamentally influence the ways in which WTO members propose multilateral trading rules and implement their WTO obligations - in ways that have not, until now, been adequately explored and explained in the extensive literature relating to international trade law. In developing and elaborating on that core thesis, this dissertation has six chapters, following an Introduction that summarizes the significance, structure and approach, and terminology of the dissertation. Chapter 1, Review of Literature, comprises two parts. The first part surveys the key academic, professional, and official literature regarding a range of issues that are pertinent to this dissertation. These include such topics as the general character and structure of the WTO regime, specific trade mechanisms, the relationship between WTO law and domestic law, the relationship between WTO law and general international law, principles and interpretation of WTO agreements, the position of developing countries in the multilateral trading system, strategies pursued in international trade negotiations, domestic trade legislation, Free Trade Agreements (FTAs), dispute settlement mechanism, and domestic adjudication of trade issues. The second part of this chapter offers the main findings of the relevant literature. It is those findings, of course, that serve as the foundation as well as starting point for further research as reflected in this dissertation. The findings of the literature have helped formulate two hypotheses of the dissertation. One is that the insufficiencies of the WTO legal regime provide the possibility and necessity for the WTO Members to indigenize WTO law by resorting to their own legal traditions and cultures. The other hypothesis is that the WTO Members' practices in dealing with the WTO have demonstrated their willingness and efforts to indigenize WTO law. Chapter 2, Concept of Legal Indigenization, develops the fundamental concept of this dissertation - legal indigenization. This chapter starts in Section I by reviewing legal fragmentation in international trade before World War II. The disaster of world war brought about by legal fragmentation called for international responses thereto, which resulted in (legal) globalization. Then, the section proceeds into the exploration of the problems of (legal) globalization - both inherent and acquired - which explain the need to rely on legal indigenization. Section II of this chapter defines the concept of legal indigenization, based on the various concepts of indigenization that exist in various other disciplines such as anthropology and culture, and dissects the concept of legal indigenization further for clarification. In that same vein, the latter part of this section compares this term with other two relevant terms - that is, globalization and localization. Based on the concept of legal indigenization defined in Chapter 2, the succeeding three chapters proceed to apply this concept to the specific actions adopted by China, the United States, and the EU regarding their interaction with the WTO. Chapter 3, Legal Indigenization of WTO Law in China, examines four aspects of legal indigenization. Section I focuses on China's participation in international trade rule-making. It explains how China emphasizes Special and Differential (S&D) treatment as well as substantive and procedural issues in the Chinese proposals submitted to the WTO. The sources of pertinent features of the Chinese proposals submitted to the WTO are located, partially, in the Chinese legal tradition and culture. Section II of this chapter finds that China's participation in the settlement of international trade disputes reflects certain Chinese ideologies that have been challenged by its trading partners. Those ideologies bear on such issues as whether legal protection is to be provided for subjects involving some illegality, the relationship between publications and public morality, state control of trading rights, and the necessity of criminal thresholds regarding protection of intellectual property rights. This section examines how these features have taken shape, based on Chinese legal tradition and culture. Section III examines key characteristics of the overall Chinese domestic trade legislation, such as the degree of specification of laws at different levels, the use of "temporary" legislation, and a focus on "management." This section explains these features from the perspective of the Chinese legal tradition, focusing specifically on various forms of law in dynastic China and China's contemporary legal system. Section IV examines domestic adjudication of trade disputes arising within China. It reviews administrative and judicial regimes relating to trade issues. Although China has complied with its WTO obligation to provide judicial review of administrative determinations, it still treats adjudication of trade issues as having unique characteristics that other WTO members might find odd or objectionable but that reflect deeply rooted elements of Chinese legal tradition and culture. Chapter 4, Legal Indigenization of WTO Law in the United States, examines the process of legal indigenization (again, relating to trade law) taking place within the United States. Section I explores several aspects of U.S. proposals submitted to the WTO on both substantive and procedural issues, as well as S&D treatment. It also gives some attention to U.S. Free Trade Agreement (FTA) negotiations. This section characterizes U.S. proposals to the WTO from several perspectives - the tendency to submit a series of proposals, to exhibit cautiousness toward S&D treatment, to address institutional reform, to emphasize international rule of law, to pursue procedural justice, etc. This section traces these practices to roots in U.S. legal tradition and culture and specifically in the emphasis on procedural fairness in the common law tradition, the U.S. leadership in the WTO, U.S. reliance on reciprocity, its belief in rule of law, and segmentation of power in its political regime. Section II examines international trade disputes involving the United States as respondent and reveals certain U.S. ideologies challenged by its trading partners, such as the relationship between sovereignty and unilateralism and extra-territorial application of U.S. domestic law. This section also attributes these features to U.S. legal tradition and culture, especially to vestiges of unilateralism. Section III explores domestic legislation on trade within the United States and highlights some of its key characteristics, such as the urge for comprehensive content and codification as well as a subordination of international trade agreements. The origins of these characteristics in U.S. legal tradition and culture mainly involve a mixture of the civil law and common law traditions, the fluctuation of trade policies in the U.S. legal history, and dualism with respect to the relationship between international law and domestic law. Section IV examines domestic adjudication of trade issues arising within the United States. After reviewing pertinent administrative agencies and judicial bodies relating to trade adjudication, the discussion emphasizes certain characteristics of domestic adjudication of trade issues within the United States, such as the use of administrative segmentation and specialized courts. The U.S. legal tradition and culture can help explain these characteristics - for example, in the U.S. deference to "expertise." Chapter 5, Legal Indigenization of WTO Law in the European Union, analyses the process of legal indigenization of WTO law within the EU. Section I examines how the EU has participated in international trade rule-making and explains the EU's emphasis on certain topics, such as the constituents of the Dispute Settlement Body, the style of proposals, the importance of sustainable development and S&D treatment, the establishment of principles guiding negotiations of specific rules, and the role of independent experts in the multilateral dispute settlement mechanism. The origins of the special attention accorded to these topics can be found in the legal tradition and culture of the EU, and particularly in the role of judges in the civil law tradition, the center stage given to general principles, a high status given to jurists, and the heavy importance of sustainable development in the EU. Section II examines international trade disputes involving the EU as respondent. On the grounds of a review of pertinent cases, this section identifies some EU ideologies that seem conflicting with those of its trading partners, such as its broad methods of interpreting WTO agreements, its attitude towards the relationship between trade preferences in the FTAs and multilateral principles, and its application of general principles of law in its arguments. Some of the factors that contribute to the formulation of these features appear also in continental European legal tradition and culture, especially in the civil law's approach to interpretation of international agreements. Section III of this chapter explores the "domestic" trade legislation within the EU. Based on an overview of EU "domestic" trade legislation, this section points out some EU-specific approaches to trade legislation. These features find their roots in continental European legal tradition and culture, especially in the concept of the legal rule as adopted by the civil law tradition and in theories about the relationship between EU law and domestic laws of its member states. Section IV, after reviewing pertinent administrative agencies and courts involved in adjudication of trade issues within the EU, characterizes such "domestic" adjudication of trade issues as giving special emphasis to the judicial protection of individual rights, to the application of general principles of law, to procedural justice, and to the direct application of WTO agreements. Once again, the shared corpus of legal tradition and culture that predominates in the EU can partially account for these features, as explained at the end of Chapter 5. Chapter 6, Legal Indigenization and the WTO, explores these issues from a more integrated perspective. Its aim is to explain how, at a more multilateral level, the WTO provisions have been indigenized by each of these three individual members' legal tradition and culture. Section I reviews how existing WTO provisions or practices were influenced by the legal tradition and culture of certain members. It does this by studying three examples: the United States and the multilateral antidumping mechanism, rules developed by the Dispute Settlement Body (DSB) for applying the principle of "legitimate expectations," and the admissibility of amicus curiae submissions in the DSB. Section II focuses on legal indigenization in the context of further negotiations. This section examines competing (indigenized) views from three members - China, the United States, and the EU - on S&D treatment, environmental issues, fisheries subsidies, and reform of the DSB. Section III addresses on the general implications of legal indigenization for the WTO both in the short term and in the long run. The text of the dissertation closes with a Conclusion that summarizes the main findings of all the above chapters. | |
