Michael Fakhri


There is an emerging consensus that the WTO is in grave need of institutional redesign. For the last fifteen years, questions of WTO institutional reform have been framed as a matter of improving the WTO’s legitimacy. This Article suggests that thinking about WTO redesign as a matter of improving its legitimacy limits our ability to fundamentally appreciate what the WTO’s function and purpose is and conceptualize what it should be. It would be more useful to know what is exactly at stake and what have been the social, political, and economic implications of the legitimacy debate thus far. The legitimacy debate appears in discussions regarding constitutionalization, the dispute settlement system, and non-state actor participation and institutional transparency. The divisions between arguments in the legitimacy debate are usually understood to be between rule-based constitutionalization versus economic rights constitutionalization, sympathy versus skepticism regarding non-state actor participation, and support for a more legalized dispute-settlement system versus a more politicized dispute-settlement system. By reconstruing the legitimacy debate, the Article uncovers how what at first seem to be incongruent positions appear to be more related. Constitutional discourse draws from a desire to reduce politics in international trade and is a way of subordinating the state to markets or international institutions. Dispute settlement debates are a way to negotiate the relationship between the WTO and the state. Participation and transparency arguments derive from a shared empirical assumption that the WTO’s power to govern globally is pervading everyday life and the state’s power is waning.



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