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8 Gonz. J. Int'l L. 1 (2004-2005)

handle is hein.journals/gjil8 and id is 1 raw text is: Rethinking the Dispute Resolution Process: The Application of

Federalist Principles to the WTO
Jessyn Schor*
Abstract: The global experiment with free trade parallels the American and European
experience with economic integration. This paper explores American and European
doctrines of federalism, focusing on the techniques developed by the Supreme Court and
the Court of Justice of the European Communities (ECJ) to evaluate local regulations
that impact national or Community-wide trade, as they are analogous to WTO judicial
review of domestic regulations. It suggests that dispute panels' interpretation of trade
disciplines has not adequately accommodated regulations that pursue non-economic
goals, like environmental protection, and concludes that aspects of American and
European federalism could applied to the WTO dispute resolution system to better
accommodate domestic regulations that pursue non-economic goals.
1.     Introduction: Why Federalism?
In the globalized trade system, free market ideology dominates the modits operandi of the
major institutions like the International Monetary Fund, the World Bank, and the World Trade
Organization (WTO).1 International trade law seeks to maximize welfare by reducing trade
barriers and thereby allowing the principle of comparative advantage to operate on a global
scale.2 The multilateral trading system recognizes that nations may not liberalize trade for
*Attorney at Law. Jessyn Schor wishes to express her sincere gratitude to Prof Frank Garcia of Boston
College Law School for his insightful comments and suggestions.
1 The WTO became operative in 1995 as an institutional replacement for the General Agreement on Tariffs
and Trade (GATT). GATT refer to the rules of the General Agreement on Tariffs and Trade, which have
been in force (with some amendments) since 1948. General Agreement on Tariffs and Trade, Oct. 30, 1947,
61 Stat. A-1l, 55 U.N.T.S. 194 [hereinafter GATT]. This agreement was incorporated into the General
Agreement on Tariffs and Trade 1994 by way of paragraph 1 (a) of Annex IA of the Marrakesh Agreement
Establishing the World Trade Organization, April 15. 1994 [hereinafter WTO Agreement]. The Legal
Texts: The Results of the Uruguay Round Agreements Including the Agreement Establishing the World
Trade Organization as Signed on April 15, 1994 17 (World Trade Organization, 1999).
2 See Matthew Schaefer, Proceedings of the Canada- United States Law Institute Conference: NAFTA
Revisted. Searching for Pareto Gains in the Relationship Between Free Trade and Federalism: Revisiting
the AFTA, Eyeing the FTAA, 23 CAN.-U.S. L.J. 441, 447 (1997).

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