At the Vanishing Point of Law: Rebalancing, Non-Violation Claims, and the Role of the Multilateral Trade Regime in the Trade Wars

What role can the multilateral trade regime play in the trade wars triggered by the USA under the Trump administration? This article argues that the traditional goal of dispute settlement in the WTO—the positive resolution of disputes—has become largely unattainable in the circumstances of the trade wars, but that the regime can still play a valuable role by providing a framework for the rebalancing of obligations among the participants. Using the regime in this way would defuse tensions among the participants, would ensure that any new equilibrium that they achieve is integrated into the legal structure of the trade regime, and would provide the participants the opportunity to use the trade regime’s tools for solving disagreements at the margins, thereby lowering the risk that trade retaliation will spiral out of control. The article uses the example of non-violation claims in the context of national security measures to illustrate the potential for and benefits of re-integrating the trade wars into the multilateral trade regime. The article provides a detailed discussion of the legal justification for non-violation complaints in response to national security measures and argues that such claims provide an alternative course of action that is less confrontational than unilateral retaliation or violation claims, and faster to adjudicate than violation claims.