Gregory Shaffer

The Empirical Turn in International Legal Scholarship

There is a new empirical turn in international legal scholarship. Building on decades of theoretical work in law and social science, a new generation of empirical studies is elaborating on how international law works in different contexts. The theoretical debate over whether international law matters is a stale one. What matters now is the study of the conditions under which international law is formed and has effects. International law is the product of specific forces and factors; it accomplishes its ends under particular conditions. The trend toward empirical study has expanded through the efforts of scholars in multiple disciplines, with legal scholars playing central roles independently and as collaborators in generating new empirical work. Legal scholars are also now pressed to be increasingly sophisticated consumers of this work. It is time to take stock and evaluate this new generation of multidisciplinary, multimethod empirical scholarship.

The Challenges of WTO Law: Strategies for Developing Country Adaptation

Although developing countries vary significantly in terms of trading profiles, they generally face three primary challenges if they are to participate effectively in the WTO dispute settlement system. These challenges are: (i) a relative lack of legal expertise in WTO law; (ii) constrained financial resources, including for the hiring of outside counsel; and (iii) fear of political and economic pressure. We can roughly categorize these challenges as constraints of law, money, and politics. This article explores various strategies for responding to these challenges, none of which involves a modification of the rules of the WTOs Dispute Settlement Understanding.

What's New in EU Trade Dispute Settlement? Judicialisation, Public-Private Networks and the WTO Legal Order

Abstract There is a recursive relationship between the judicialization of international trade relations and the development of public–private partnerships in the EU to address international trade claims. The more legalized international trading system creates stronger incentives for well-placed private actors to engage public legal processes. At the same time, to litigate effectively in the WTO system, government officials need the specific information that businesses and their legal representatives can provide. Officials therefore strive to establish better working relations with industry on trade matters. As a result, the EUs decision-making process for the investigation, litigation and settlement of trade claims has become a dynamic, ad hoc, hybrid, multi-tiered process in which private interests are deeply implicated. The process is neither purely intergovernmental nor purely private, but rather involves public–private networks operating in the shadow of international trade law. The process changes and adapts through trial and error.

The New Legal Realist Approach to International Law

The new legal realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practiced, and changes over time. The article addresses the jurisprudential roots of the new legal realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the new legal realism is both empirical and problem-centered, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the new legal realist approach in terms of scientism and relativism, and it responds to them.

Risk Regulation, GMOs, and the Limits of Deliberation

Over the past two decades, the Council of Ministers has been drawn into a political maelstrom - the regulation of genetically modified (GM) foods and crops. Beginning with the 1990 Directive on the Deliberate Release into the Environment of Genetically Modified Organisms (GMOs), and proceeding through the growing controversy over GMOs in the 1990s, the unofficial moratorium on the approval of new GM varieties between 1999 and 2004, the ongoing transatlantic dispute over GMOs with the United States, and finally the tentative resumption of approvals initiated in 2004, the Council of Ministers has played a central role in the adoption and implementation of one of the most controversial areas of EU regulation. Throughout this period, the Council has been riven by persistent divisions both among its member governments and between the Council as a body and other institutional actors such as the Commission and the European Parliament (EP), and at the same time by pressures from societal actors in Europe, foreign governments such as that of the United States, and international organizations such as the World Trade Organization (WTO).

Dispute Settlement at the Wto: The Developing Country Experience

This examination of the law in action of WTO dispute settlement takes a developing-country perspective. Providing a bottom-up assessment of the challenges, experiences and strategies of individual developing countries, it assesses what these countries have done and can do to build the capacity to deploy and shape the WTO legal system, as well as the daunting challenges that they face. Chapters address developing countries of varying size and wealth, including China, India, Brazil, Argentina, Thailand, South Africa, Egypt, Kenya and Bangladesh. Building from empirical work by leading academics and practitioners, this book provides a much needed understanding of how the WTO dispute settlement system actually operates behind the scenes for developing countries.

Biotechnology: The Next Transatlantic Trade War?

The dispute between the United States and the European Union over genetically modified organisms is genuine and rooted in opposing philosophies of food safety regulation. Yet it is unlikely to develop into a transatlantic trade war. Here are four reasons why.

Access to justice in the World Trade Organization: a case for a small claims procedure?

The current dispute settlement system of the World Trade Organization (WTO) creates a particular challenge for WTO Members with limited exports since litigation costs are more or less independent of the commercial stakes involved in a dispute. Small Members with small trade stakes may therefore find it too costly to pursue legitimate claims. Reviewing the aims and practices of small claims procedures at the national and supranational level, we analyse whether a similar institution could be introduced at the WTO. While a strong empirical case can be made for such an innovation, the legal and political challenges should not be underestimated. As an initial step, we make a prima facie case that the current dispute settlement system effectively discriminates against small claims and hence owners of small claims, and thus, in particular, against least developed countries, small island economies and low income developing countries. This empirical task is carried out in Part 2. In Part 3 we explain what small claims procedures are at the national level, what purpose they serve, how they are organized in different jurisdictions involving alternative design features, and what challenges they have faced. Part 4 explores the issues raised by adding a small claims procedure in the WTO context, and indicates specific design features that could address them.

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra‐jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU’s large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of ‘adequate’ data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive’s extra‐jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross‐border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States’ collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under‐regulation legitimising EU intervention, and the constraints of supranational trade rules.

FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law

There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.