¹ Thomas M. Franck, Fairness in International Law and Institutions 4 (1997); defines trade liberalization as “the rubric under which [the] tension [between substantive distributive justice and procedural right process] is discursively managed.”

² Article IX(2) of the Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement] provides that the “Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of [WTO] Agreements.” WTO Agreement, Apr. 15, 1994, LT/UR/A/Z, art. Ix(2), available at <http://www.wto.org>.

³ John Rawls, A Theory or Justice 4, 14-15 (1971).

⁴ See Garcia, Frank J., Trade and Inequality: Economic Justice and the Developing World, 21 Mich. J. Int’l L. 975 (2000)Google Scholar

⁵ See Robert Howse & Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (2000), available at <http://www.ichrdd.ca>.

⁶ Esty, Daniel C., The World Trade Organization’s Legitimacy Crisis, 1() World Trade Rev. 7-22 (2002)CrossRefGoogle Scholar; Henderson, David, WTO 2002: Imaginary Crisis, Real Problems, 1 (3) World Trade Rev. 277 (2002)CrossRefGoogle Scholar; Esty, Daniel C., Rejoinder, 1 (3) Trade L. Rev. 297 (2002)Google Scholar.

⁷ See Esserman, Susan & Howse, Robert, The WTO on Trial, 82 Foreign Aff. 130, 138 (2003)CrossRefGoogle Scholar. Esserman and Howse describe the secrecy of the WTO’s dispute settlement submissions and hearings as “an unacceptable vestige of the old days of cloak-and-dagger diplomacy.” Id.

⁸ See, e.g., Palmeter, David & Mavriodis, Petros C., The WTO Legal System: Sources of Law, 92 AJIL 398 (1998)CrossRefGoogle Scholar.

⁹ See, e.g., Robert Howse, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence, in the EU, the WTO and the Nafta: Towards a Common Law of International Trade 59 (J.H.H. Weiler ed., 2000).

¹⁰ Be nestling, Alvarez is referring to the political process by which members of the WTO resolve treaty differences through the political process of consensus building. Once consensus is achieved through the political process, Alvarez posits that the consensus may then be enshrined in a treaty.

¹¹ See Alvarez, José E., How Not to Link: Institutional Conundrums of an Expanded Trade Regime, 7 Widener L. Symp. J. 1 (2001)Google ScholarPubMed.

¹² Indeed, the impulse to counteract uneven bargains was critical to the enhancement of section 301 of the Trade Act of 1974 in the 1988 debate on fairness in the United States. For an excellent summary, see Bhagwati, Jagdish, Aggressive Unilateralism: An Overview, in Aggressive Unilateralism: America’s 301 Trade Policy and the World Trading System (Bhagwati, Jagdish & Patrick, Hugh T. eds., 1990)Google Scholar.

¹³ See Dunoff, Jeffrey, “Trade And”: Recent Developments in Trade Policy and Scholarship—and Their Surprising Political Implications, 17 Nw. J. Int’l L. & Bus. 759 (1996-97)Google Scholar Dunoff, Jeffrey L., The Death of the Trade Regime, 10 Eurj. Int’l L. 733 (1999)Google Scholar.

¹⁴ See Ohlhoff, Stefan & Schloemann, Hannes L., Rational Allocation of Disputes and ‘Constitutionalisation’: Forum Choice as an Issue of Competence, in Dispute Resolution in the World Trade Organisation 302 (Cameron, James & Campbell, Karen eds., 1998)Google Scholar.

¹⁵ For an argument along those lines in the context of human rights, see Reisman, W. Michael, Through or Despite Government: Differentiated Responsibilities in Human Rights Programs, 72 Iowa L. Rev. 391, 395 (1986-87)Google Scholar. For an alternative view, see Gathii, James Thuo, Good Governance as a Counter Insurgency Agenda to Oppositional and Transformative Social Projects in International Law, 5 Buff. Hum. Rts. L. Rev. 107, 147-63 (1999)Google Scholar.

¹⁶ See Charnovitz, Steve, Triangulating the World Trade Organization, 96 AJIL 28, 39-40 (2002)CrossRefGoogle Scholar “Marrakesh Declaration, para. 2 (Apr. 15, 1994), in World Trade Organization, the Legal Texts: the Results of the Uruguay Round of Multilateral Trade Negotiations iv (1999). Several agreements also expressly mention fairness: The Agreement on Agriculture has as an objective a “fair and market-oriented agricultural trading system,” Agreement on Agriculture, Art. 20 (c) in World Trade Organization, supra, at 46. Article 2.4 of the Agreement on Implementation of Article VI of Gatt (the Antidumping Agreement) provides that “ [a] fair comparison shall be made between the export price and normal value.” World Trade Organization, supra, at 149. Article 2.4.2 of the Antidumping Agreement provides that “[s]ubject to the provisions governing fair comparison in paragraph 4 [of this article], the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of weighted average normal value with a weighted average of prices of all comparable export transactions or by comparison of normal value and export prices on a transaction-to-transaction basis.” Id. at 150.

¹⁸ WTO Ministerial Conference, Implementation-Related Issues and Concerns, Nov. 9-14, 2001, WTO Doc. WT/MIN(01)/17, pmbl., available at <http://www.wto.org>.

¹⁹ Fairness as defined here could also refer to bias. Kennedy, David, The Disciplines of International Law and Policy, 12 Leidenj. Int’l L. 12-13 (1999)Google Scholar, defines bias in law by identifying strategies that purport to be neutral. Hence, Kennedy examines the deep structures of law in terms of their disciplinary sensibility to their own internal contradictions and background assumptions, which “preclude it from seeing some things that are not consistent with those assumptions.” Id. at 12. Kennedy further argues that “a discipline’s blindspots, strategies of evasion, elision, or forgetfulness might be linked to bias of various sorts... [such as] elisions or contradictions internal to a disciplinary sensibility with external bias.” Id. at 12-13.

²⁰ Oliver Wendell Holmes, the Common Law 1 (1881)

²¹ See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 31, §3(a), 8 ILM 679 (1969).

²² See General Agreement on Tariffs & Trade—Multilateral Trade Negotiations (The Uruguay Round): Understanding on Rules & Procedures Governing the Settlement of Disputes (Dec. 15,1993), 33 ILM 112, 115 (1994).

²³ See William N. Eskridge, Dynamic Statutory Interpretation 47 (1994).

²⁴ Article 17.6 deals with review of factual determinations made by national authorities and the interpretation of the relevant international agreement: Article 17.6 (i) requires a panel to defer to the conclusions of national authorities as long as the facts were properly established and their evaluation was unbiased and objective. Article 17.6(ii) sets out a two-step process. First, the panel must determine whether the relevant agreement admits of different possible interpretations. Second, the measure will be upheld if the member state acted in accordance with “one of those permissible interpretations.” Article 17.6 was confined to the antidumping context as a compromise during the final moments of the Uruguay Round. A Ministerial Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI states that “The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application. “(Reprinted in the Results of the Uruguay Round of Multilateral Trade Negotiations—LEGAL Texts, 453 [1994].) The United States wanted a much more deferential standard of review of decisions of national governments in the WTO’s Dispute Settlement Body. John H. Jackson has suggested that, without Article 17.6 (among other five or so issues), the Uruguay Round’s outcome was in danger. See Jackson, John H., Remarks, 88 ASIL Proc. 136, 139 (1994)Google Scholar. The Appellate Body decision in European Communities—Measures Concerning Meat and Meat Products (Hormones)— Appellate Body Report & Panel Report, WTO Doc. WT/DS26,48/AB/R, para. 114 (Feb. 19,1998), available at <http://www.wto.org>) recognizes that Article 17.6 of the Antidumping Agreement applies to that agreement only.

²⁵ For example, in the United States-Import Prohibition of Certain Shrimp and Shrimp Products case—AB-1998-4—Report of the Appellate Body [hereinafter Shrimp Turtle], the AB chided the panel for construing the word “seek” in Article 11 of the DSU in “too literal a manner.” The AB further noted “[that the] panel’s reading of the word ‘seek’ is unnecessarily formal and technical in nature becomes clear should ‘an individual or body’ first ask a panel for permission to file a statement or brief. . . . The exercise of the panel’s discretion could, of course, and perhaps, should, include consultation with the parties to the dispute.” Shrimp Turtle, WTO Doc. WT/DS58/AB/R, para. 107 (Oct. 12, 1998), available at <http://www.wto.org>. The AB here was clearly going beyond the text of the DSU to find that the panel had discretion to entertain non-requested amicus briefs.

²⁶ 1 Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992) as cited in Shrimp Turtle, para. 165.

²⁷ Shrimp Turtle, para. 165.

²⁸ See Bhala, Raj, The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part II of a Trilogy), 9 J. Transnat’l L. & Pol’t 1 (1999)Google Scholar.

²⁹ United States—Sections 301-310 of the Trade Act of 1974—Report of the Panel, WTO Doc. WT/DS152/R, para. 7.81 (Dec. 22, 1999), available at <http://www.wto.org>. In that case, the AB observed that the mere existence of legislation embodying the possibility of unilaterally curtailing the benefits of individual economic actors was observed to have “an appreciable chilling effect” on the economic activities of individuals. Id.

³⁰ Id., para. 7.89.

³¹ The WTO now has a Legal Advisory Center for developing countries involved in actions within the DSB. See Jackson, John H., Perceptions About the WTO Trade Institutions, 1 World Trade Rev. 101-14 (2002)CrossRefGoogle Scholar

³² See Leebron, David W., Implementation of the Uruguay Round Results in the United States, in Implementing the Uruguay Round 236 (Jackson, John H. & Sykes, Alan O. eds., 1997)Google Scholar.

³³ See generally James Gathii, Insulating Domestic Policy Through International Legal Minimalism: A Re-Characterization of the Foreign Affairs Trade Doctrine (Aug., 2003) (unpublished article, on file with author).

³⁴ Agreement on Implementation of Article VI of Gatt, 1994 (The Antidumping Agreement), April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, 33 ILM 13 (1994).

³⁵ See also Mosoti, Victor, In Our Own Image, Not Theirs: Damages as an Antidote to the Remedial Déficiences in the WTO Dispute Settlement Process: A View From Sub-Saharan Africa, 19 B.U. Int’l L.J. 231 (2001)Google Scholar.

³⁶ United States-Antidumping and Countervailing Measures on Steel Plate From India—Report of the Panel, WTO Doc. WT/DS206/R, para. 7.104 (June 28, 2002) [hereinafter Steel Plate], available at <http://www.wto.org>.

³⁷ Id., para. 7110.

³⁸ Id.

³⁹ See Gathii, James Thuo, The Legal Status of the Doha Declaration on Trips and Public Health Under the Vienna Convention on the Law of Treaties, 15 Harv. J. L. & Tech. 291, 315 (2002)Google Scholar.

⁴⁰ Alexander Roitinger, Antidumping Reform, Trade Policy, Flexibility and Compensation, (Aug. 18, 2002) (unpublished paper No. 2002-18, on file with author).

⁴¹ European Communities—Antidumping Duties on Imports of Cotton-Type Bed Linen From India, Report of the Panel, AB-2000-13, WTO Doc. WT/DS141/R (Oct. 30, 2000), available at <http://www.wto.org>.

⁴² Id., para. 6.221.

⁴³ Id., para. 6.233 (emphasis added).

⁴⁴ Steel Plate, para. 7.111.

⁴⁵ See id., para. 7.105.

⁴⁶ Id., para. 7.106.

⁴⁷ Agreement on Implementation of Article VI of Gatt, id.

⁴⁸ See Improving WTO Antidumping Rules on Price Undertakings Aim of U.S. Proposal, 19 Int’l Trade Rep. 1629 (Sept. 26, 2002).

⁴⁹ Position papers presented before Doha by South Africa (WTO Doc. WT/L/317), Columbia (WTO Doc. WT/GC/W/315), Korea (WTO Doc. WT/GC/W/235/Rev.l), Guatemala (WTO Doc. WT/GC/W/330), Kenya (WTO Doc. WT/C/W/200) and Romania (WTO Doc. WT/GC/W/319). Since Doha, communications from Canada (WTO Doc. TN/RL/W/1) and India (WTO Doc. TN/RL/W/4) have raised similar concerns. See also Communication from Brazil, Chile, Colombia, Costa Rica, Hong Kong, China, Israel Japan, Korea, Mexico, Norway, Singapore, Switzerland, Thailand, and Turkey (WTO Doc. TN/RL/W/6).

⁵⁰ WTO Doc. WT/GC/W/354 (communication of Cuba, Dominican Republic, Egypt, El Salvador, Honduras, India, Indonesia, Malaysia, Sri Lanka, and Uganda).

⁵¹ Japan (WTO Doc. WT/GC/W/354); Chile (WTO Doc. WT/GC/W/269).

⁵² See New Antidumping Investigations Decline but More Measures Imposed, WTO Reports, 19 Int’l Trade Rep. (BNA) 1860 (Oct.31,2002) (reporting that although there were 82 fewer antidumping investigations started in the second half of 2002 compared with the first half, developing countries are using the antidumping regime even more. For example, India retained its premier position in initiating new antidumping investigations, while countries like Argentina, Egypt, Mexico, and Thailand had become popular users.),

⁵³ Sharyn O’Halloran argues that “interest group influence [is] already incorporated into the regulatory process through the procedures that govern administrative decision making. That is, the standards by which industries qualify for government assistance, whether it be antidumping actions or trade adjustment assistance, are themselves the result of the political process. Thus interest group influence may be apparent not at regulatory proceedings, but rather in the standards of proof applied in those proceedings.” Sharyn O’Halloran, Politics, Process and American Trade Policy 181 (1994).

⁵⁴ See Trade Act of 2002, Pub. L. 107-210, §2102(b) (14), 116 Stat. 933 (2002).

⁵⁵ I have argued that although decisions made by the International Court of Justice (ICJ) and by dissenting judges more often than not proceed from a fidelity to a common interpretive schema that traditionally guides the ICJ’s decision-making in treaty interpretation, a dissent is not a departure from this traditional interpretive schema to the extent that it is constrained or governed by it See Gathii, James, Geographical Hegeuanism in Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island, 15 Leiden J. Int’l L. 581, 609-15 (2002)CrossRefGoogle Scholar. According to Duncan Kennedy, legal interpretation proceeds both from text and “the argumentative tools that legal culture makes available to judges trying to generate the effect of legal necessity,” Kennedy, Duncan, Strategizing Strategic Behavior in Legal Interpretation, 1996 Utah L. Rev. 785 at 797 (1996)Google Scholar. But see Winter, Steve L., The Next Century of Legal Thought, 22 Cardozol. Rev. 747 (2001)Google Scholar.