Trade Law

by

Aoife O’Donoghue

• LAST REVIEWED: 09 February 2021
• LAST MODIFIED: 23 May 2012
• DOI: 10.1093/obo/9780199743292-0057

Introduction

Trade law may be defined as the law that regulates the flow of goods and services between and across states, regional trade areas, or trade regions. More often, what is being referred to is international trade law, which is characterized by a large number of multilateral and bilateral treaties, customary international law, and an increasing corpus of case law as well as academic literature. Historically, the main body of trade law emerged from bilateral trade agreements, which incorporated other areas of international economic law, such as investment law, but in the post–World War II era multilateral treaties have become more common. An aspect of their development is the establishment of regional trade areas among a number of states within a particular region. The most common features of trade treaties include most-favored nation and national treatment clauses. The most significant multilateral agreement is the General Agreement on Tariffs and Trade (GATT), signed in 1947, which is the precursor of the creation of the World Trade Organization (WTO). The WTO was established in 1995 and is the only global trade organization. Along with GATT, the WTO now incorporates several treaties, including the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The WTO established an institutional structure for its members and a compulsory dispute-settlement mechanism. It integrates a continuous system of reform and negotiations known as trade rounds; the Doha Development Round is underway. Regional trade agreements are another significant aspect of trade law. The most highly developed examples of such agreements are the treaties establishing the European Union, the only regional trade area that is itself a member of the WTO. Regional trade agreements vary greatly. Some are free trade areas, which eliminate tariffs and import quotas between participating members. Other regional trade areas are more integrated and are referred to as customs unions, because they combine a free trade area with a common external tariff and trade policy. Several significant regional trade areas include the free trade area established by the North American Free Trade Agreement (NAFTA); the free trade area established by an agreement between the Caribbean Community (CARICOM; see Caribbean Community Secretariat, cited under Websites) and the Dominican Republic; the free trade area comprising nineteen states established by the Common Market for Eastern and Southern Africa (COMESA; cited under Websites); the Association of Southeastern Nations Free Trade Area (ASEAN AFTA); the liberalization of trade of members provided by the Customs Union between Russia, Kazakhstan, and Belarus (cited under Websites); the Greater Arab Free Trade Area (GAFTA); and the free trade area between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay, and the Eastern Republic of Uruguay established by Mercosur (Southern Common Market; cited under Websites), among several others. United Nations Conference on Trade and Development(UNCTAD); cited under Data Sources: Online), established in 1964, is also heavily involved in trade law.

General Overviews

The majority of texts published after 1995 on international trade law deal almost exclusively with the trade law established under the World Trade Organization (WTO). Other than general introductions to trade law (Trebilcock 2011), these texts usually focus on two specific areas, the first covering examinations of the WTO’s institutional structure, including the dispute-settlement system, and the second providing an overview of the specific trade agreements that are included within the organization, such as the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); see van den Bossche 2008, Trebilcock and Howse 2012, and Bhala 2008. These texts all give a general historical overview of the development of trade law as well as the economic assumptions, such as comparative advantage, that underpin the form and substance of the WTO. Other general texts take a more case-based approach (Guzmán and Pauwelyn 2009), while still others are more policy oriented (Matsushita, et al. 2006). Some texts take a perspective that enables analysis of the organization (Hoekman and Kostecki 2009) beyond a strict direct approach. There is also a large number of general texts on the various regional trade areas; these include writings on the laws within the regions as well as broader works that compare the workings of varied trade regimes and their respective interactions with the WTO (Bethlehem, et al. 2009).The interactions with new trading blocs is also reflected in the literature (Snyder 2002). Many texts are aimed at academics and postgraduate students, as trade law is often taught as a postgraduate course.

• Bethlehem, Daniel, Donald McRae, Rodney Neufeld, and Isabelle van Damme, eds. The Oxford Handbook of International Trade Law. Oxford: Oxford University Press, 2009.

  This is a useful guide for anyone conducting research in the area of trade law who wishes to understand the main areas of the trade debate. It is divided between sections on the substantive law of the WTO, its dispute-settlement procedures, and its wider framework.

• Bhala, Raj. International Trade Law: Interdisciplinary Theory and Practice. 3d ed. Newark, NJ: LexisNexis, 2008.

  This book provides a very wide-ranging analysis of trade, including of elements beyond the scope of the WTO. It incorporates analysis of the more recent trade negotiations under the Doha Development Round as well as analysis of the workings of the WTO. The book also provides an overview of the broader questions involving regional trade relations and “developing countries” as designated by the United Nations.

• Guzmán, Andrew T., and Joost H. B. Pauwelyn. International Trade Law. Austin, TX: Wolters Kluwer Law, 2009.

  This general textbook takes a case-based approach to understanding the historical development of international trade law. While primarily a textbook for students of trade law, it does offer an instructive introduction, particularly to the case law, and is useful to those wishing to come to grips with the impact that dispute settlement has had on trade law.

• Hoekman, Bernard M., and Michael M. Kostecki. The Political Economy of the World Trading System. 3d ed. Oxford: Oxford University Press, 2009.

  This book offers an authoritative overview of the workings of the WTO, taking a political and economic perspective on the internal operation of the organization. In particular, the book takes account of the increasing importance of countries in Asia, Latin America, and Africa and the role of business groups and nongovernmental organizations in trade policy negotiations.

• Matsushita, Mitsuo, Thomas J. Schoenbaum, and Petros C. Mavroidis. The World Trade Organization: Law, Practice, and Policy. 2d ed. Oxford: Oxford University Press, 2006.

  This textbook offers both a policy- and a practice-based approach to understanding the workings of the WTO. Based around the General Agreement on Tariffs and Trade (GATT), the book also gives extensive coverage of the organization’s Dispute Settlement Understanding (DSU) and is a useful introduction to the area.

• Snyder, Francis G., ed. Regional and Global Regulation of International Trade. Oxford: Hart, 2002.

  This book brings together a number of experts on regional and international trade law to examine various thematic issues regarding the interaction of the different trading regimes. It covers topics from the roles of China, India, and the European Union in world trade to the WTO’s response to regional integration as well as the issues that arise due to the differences in the regimes. This book is primarily aimed at an academic audience.

• Trebilcock, Michael J. Understanding Trade Law. Cheltenham, UK: Edward Elgar, 2011.

  This book is a good general introduction to world trade law. It is an easily accessible text and as such is a good introduction for anyone new to trade law who wishes to understand the basics of its operation. It discusses both the trade agreements themselves as well as the relevant cases in the area.

• Trebilcock, Michael J., and Robert Howse. The Regulation of International Trade. 4th ed. Oxford: Routledge, 2012.

  This book gives a comprehensive overview of the law established under the WTO. The majority of the book covers the law of the General Agreement on Tariffs and Trade (GATT), although specific chapters cover the General Agreement on Trade in Services (GATS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and other related topics, such as “developing countries,” a status designated by the United Nations; the environment; labor rights; and competition law. This is quite an extensive overview of trade law that is suitable for postgraduate students.

• van den Bossche, Peter. The Law and Policy of the World Trade Organization: Text, Cases, and Materials. 2d ed. Cambridge, UK: Cambridge University Press, 2008.

  This comprehensive book is thematic in its approach to the treatment of trade law in the WTO. An extensive overview, it uses a wide range of sources, with particular emphasis on quoting cases and policy documents from the WTO’s dispute-settlement system. It is useful for postgraduate students and as a reference guide for researchers.