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Non-State Global Standard Setting and the WTO: Legitimacy and the Need for Regulatory Space

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  • Steven Bernstein
  • Erin Hannah
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    Abstract

    The proliferation of transnational social and environmental standards developed by non-state governance systems potentially poses a challenge to international trade law and the legitimacy of the World Trade Organization (WTO). These systems in areas including forestry, apparel, tourism, labour practices, agriculture, fisheries, and food operate largely independently of states as well as of traditional standard setting bodies such as the International Organization for Standardization. In lieu of definitive legal rules on recognition of legitimate international standards under relevant trade agreements [e.g, Technical Barriers to Trade (TBT), Government Procurement Agreement (GPA), and Sanitary and Phytosanitary Measures (SPS)], we identify the legal and political dynamics of standards recognition and find good prospects for these new non-state governance systems to successfully navigate them. Since these systems' standards ultimately aim to socially embed global markets, the WTO's legitimacy is at risk if its rules open the door to legal challenges of states that implicitly or explicitly adopt them. To avoid such legitimacy problems, we propose that a norm of leaving 'transnational regulatory space' for social and environmental standard setting should guide the WTO and its members. , Oxford University Press.

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    File URL: http://hdl.handle.net/10.1093/jiel/jgn022
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    Bibliographic Info

    Article provided by Oxford University Press in its journal Journal of International Economic Law.

    Volume (Year): 11 (2008)
    Issue (Month): 3 (September)
    Pages: 575-608

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    Handle: RePEc:oup:jieclw:v:11:y:2008:i:3:p:575-608

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    Postal: Oxford University Press, Great Clarendon Street, Oxford OX2 6DP, UK
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    Cited by:
    1. Schouten, Greetje & Glasbergen, Pieter, 2011. "Creating legitimacy in global private governance: The case of the Roundtable on Sustainable Palm Oil," Ecological Economics, Elsevier, vol. 70(11), pages 1891-1899, September.
    2. Baddeley, Shane & Cheng, Peter & Wolfe, Robert, 2011. "Trade Policy Implications of Carbon Labels on Food," Commissioned Papers 122740, Canadian Agricultural Trade Policy Research Network.
    3. Engler, Alejandra & Nahuelhual, Laura & Cofré, Gabriela & Barrena, Jose, 2012. "How far from harmonization are sanitary, phytosanitary and quality-related standards? An exporter’s perception approach," Food Policy, Elsevier, vol. 37(2), pages 162-170.

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