Regulatory Jurisdiction And The Wto

The WTO is not explicitly concerned with the problem of regulatory jurisdiction in connection with prudential regulation (as opposed to industrial policy regulation). However, as the WTO has addressed increasingly complex regulatory barriers to trade, it has developed several devices that have the implicit effect of allocating regulatory jurisdiction among states. This article reviews a few illustrative cases in WTO law, including Helms–Burton, Shrimp, and Gambling. This review suggests how these cases may be understood as dealing with allocation of regulatory jurisdiction. Negative integration rules such as national treatment or proportionality may serve as devices applied by tribunals for allocation of regulatory authority. The WTO has very limited rules of positive integration—whereby states either harmonize regulation or agree on more specific allocations of regulatory authority, such as mutual recognition. However, it has developed a modest degree of capacity to engage in positive regulation, or to refer to positive integration rules developed in other contexts, such as Codex Alimentarius. Finally, this article examines theoretical bases for allocating and reallocating regulatory jurisdiction in order to establish a framework by which to analyse the role of the WTO in this context.