'Moving Trade Regulation to the Private Sphere: A New Challenge to WTO Law?'

Guest Seminar by Gregory Messenger, University of Oxford.

7 November 2012
Moot Court, Bartolome House, Winter Street, S3 7ND


The WTO prides itself on having a comprehensive set of rights and duties coupled with a highly effective dispute settlement system. WTO law regulates not only inter-State behaviour but also highly contentious issues traditionally reserved to the State. In spite of anti-globalization protests and a deadlocked negotiating round, the WTO remains in the eyes of many an exemplar of effective international legal regulation. Consequently, much analysis focuses on the increasing reach of WTO law and its impact on the internal law of its Members or other areas of public international law.

Recent developments in WTO law suggest that this analysis may be misguided. In two key areas of WTO law (the regulation of safeguard measures and SPS measures) trade-related regulation is moving away from the public sphere and the oversight of the WTO. It is suggested that this may presage a new phase in the development of WTO law where increasingly effective regulation at the international level is challenged by regulation shifting from the public to private spheres. If such a claim is true, it presents a problem for the international trading system and, more importantly, an existential challenge to the WTO.