Forming the Centre of a Transnational Economic Legal Order? Thoughts on the Current and Future Position of Non-State Actors in WTO Law

Abstract

The position of non-State actors – including individuals and non-governmental organisations, as well as private corporations and their respective business associations – in WTO law is one of the most contentious topics currently discussed in the field of international economic law. The purpose of this article is not only to show that this discussion raises fundamental questions as to the aims pursued by the WTO, but also to explore the possible consequences of the changing character of international economic law itself, which have so far been little noted in the legal literature. The article starts with an evaluation of the possibilities for individual rights granted to private actors by WTO law. In this connection, the authors come to the conclusion that, judged by its goals and its normative construction, the WTO legal order is not only suitable for according rights directly to individuals, but is actually designed precisely for this purpose. The authors continue with an analysis of the current legal and factual opportunities for non-State actors to participate in the decision-making processes and dispute settlement system of the WTO. In this regard, it is submitted that a number of non-State entities already play an important, albeit mostly informal role in the WTO at present. Furthermore, this participation is likely to increase in the future, due to the currently visible changes in the normative structure of the international economic system, which are leading to the evolution of what can most accurately be characterised as the development of a ‘transnational economic law’. Following an evaluation of these structural changes and their possible impact on the future role played by non-State actors in the international economic system, the article concludes that the WTO and other relevant international organisations obviously need to adapt to the changing normative structure of international economic law, in order to be able to continue performing the regulatory tasks assigned to them.