Conflict of laws as constitutional form: reflections on international trade law and the Biotech Panel Report

Hardly anywhere is the trend towards a perfection of transnational governance arrangements and their “legalization” more visible than in international trade. Governance arrangements established through and alongside WTO law are both practically important and theoretically challenging. They do not just organise international trade relations. They also affect national and regional (European) regulatory policies partly directly, partly more indirectly. How can we explain and how should we evaluate their emergence? The WTO system of 1994, which replaced the GATT of 1947, responded to the ever increasing importance of non-tariff barriers to trade. These barriers reflect regulatory concerns especially in the fields of health and safety, consumer and environmental protection. The importance for WTO members is such that they cannot simply be abandoned for the sake of free trade. This is why the responses the new international trade system institutionalised by special agreements concerning non-tariff barriers to free trade such as the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT) reflect a politicisation of international trade. Can we conclude that international markets have been re-regulated and that international trade law ensures their “social embeddedness”? The paper seeks yardsticks for an answer to these questions in the debates on transnational constitutionalism. It submits that constitutionalisation can and should be based on a conflict-of approach. For its elaboration of this suggestion, the paper first contrasts the juridification of transnational governance at the European and the international level. It then discusses the WTO panel report on the Biotech dispute. It concludes that the legalisation and judicialisation in that case have remained “thin”. What can be observed is a political rather than a social and legal embeddedness of markets.