Courage You Can’t Understand: How to Achieve the Right Balance between Shaping and Policing Commerce in Disputes before the World Trade Organization

By: ,

This Article assesses the degree to which the World Trade Organization (“WTO “) system today achieves a workable, consistent, and predictable balance between the policing function of international commercial rules and the shaping function. Policing is defined as keeping the channels of commerce free from barriers. Shaping is defined as regulating commerce in ways designed to achieve ends that may or may not, strictly speaking, be commercial. The Article examines this issue in the context of decisions by WTO panels and the WTO Appellate Body interpreting key provisions of the WTO Agreements: Articles III and XX of the General Agreement on Tariffs and Trade 1994, and four provisions of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. The Article offers seven proposals for improving the shaping-policing balance in the WTO agreements, concluding that the application of existing rules is unlikely, of itself, to establish a sustainable shaping-policing balance.