Arguably, the rules-based international trading system is best represented by the work of the WTO Dispute Settlement Body (DSB). However, this view is inaccurate, because it reduces ‘legality’ to mean only formal adjudication under DSB authority, thereby overlooking the WTO’s important role in administering ‘interactional law’. Furthermore, due to the DSB’s increasingly limited success to ensure effective compliance, the WTO is facing a compliance deficit. The result has been that settlements have been either delayed, or not reached, in a large number of consultations and high profile disputes. Developed member states have exhausted the resources of the DSB in prolonged litigations under the Dispute Settlement Understandings (DSU) Articles (21-23). Thus, scholars have raised concerns about the quality and timeliness of compliance actions, and the imbalance between the political and judicial branches of the WTO, which rely overly on the DSB.
This thesis argues that the WTO compliance regime needs to be reformed in accordance with interactional international law theory (interactionalism). It utilizes Brunnée and Toope’s theory of interactionalism, and the interactional legal theory of Lon Fuller by applying them to the WTO rules and practice of compliance. Interactionalism combines the international relations theory of constructivism with Fuller’s theory. It demands, under the element of shared understandings, an examination of the origins of the law, applying Fuller’s principles of legality to norms to determine what is legal, and maintenance of a practice of legality.
This thesis first probes the legal obligations and adjudication of the WTO, and second, provides an evaluation of the legal character of DSU rules and procedures, based on interactional legal theory. Third, it investigates compliance as a part of the WTO’s practice of legality. This is the first time interactionalism is applied to the world trade law, which shows this thesis’ claim of originality. The conclusion asserts that WTO experts need to adopt a newer concept of legality, one akin to that developed in interactionalism, because, the efficacy of WTO law depends not only on its role in adjudication, but also on facilitating interactional legal practices.
