The theory of law put forward in this book is founded on the idea of interdependence. Interdependence generates goods taking the form of a community. In law a community involves common legal obligations pertaining to goods. The WTO Agreement establishes a “club good.” Its essence is the equality of opportunity for economic operators in members’ markets. These legal arrangements have given rise to enormous networks of global supply and value chains. At the same time, however, they have generated unease at de-industrialization and exposed critical vulnerabilities. Whereas at the time of the WTO’s founding in 1995 the unconditional interdependence called for in the WTO Agreement might have been regarded as beneficial, today it is seen as less so. Consequently, the club good of the organization appears to be splintering into individual goods composed of specific trading relationships. Consequently, support for the organization and its dispute settlement system has ebbed. Nevertheless, there appears to be recognition of residual worth in the WTO Agreement and its dispute settlement system, which may continue to serve as a locus for transformative solutions.

Interdependence-generating goods will not arise unless actors view arrangements as right or correct. This perception gives rise to a preoccupation in communities with what is just. It necessitates the development of a theory of justice that coordinates with the theory of community developed above. Justice in relation to goods can be thought about in two forms: either as a matter of the good’s distribution ex ante or its correction ex post. Nevertheless, this two-fold structure is simplistic in that it fails to account for the fact that justice must promote an ideal of just relationships. The theory of justice developed in this chapter therefore posits that the interaction of distributive and corrective justice over time gives rise to transformative justice. The transformation in question relates both to the nature of the good and the attendant conception of a wrong. The chapter details how transformative justice is an outcome visible in both international and WTO law. At the same time, the chapter suggests that WTO law’s transformative justice is not perfectly just, a deficiency that gives rise to a continuing impetus at reform.

Criticism is often made that the WTO Agreement has the potential to undermine human rights and accentuates the disruptive effects of globalization. Nevertheless, justice in sovereign terms is different from justice in human terms. This difference is perhaps best illustrated by means of a theory. This book puts forward such a theory. The theory posits that law does justice in order to sustain the good of the community. Justice in relation to the good can be thought about either according to the good’s distribution ex ante or its correction ex post after injury. The metric of distributive justice is equality, whereas the metric of corrective justice is fairness, or what is appropriate. This dualism is exhibited in thinking about WTO arrangements and is replicated in WTO law. In one mode WTO law is about the attainment of equality by means of obligations. In a second mode WTO law is about the attainment of fairness by means of rights. The two modes of law interact over time. Ultimately, they depend upon each other to generate a third, overarching structure in the form of interdependent obligations and rights manifested in a sui generis legal system.

This chapter examines the first idea-complex of equality and obligation evident in WTO law by identifying each of its constituent elements and their inter-relationship as a coherent whole, that is, the way they align and thread together. The WTO Agreement’s focus on equality and distributive justice begets a primary emphasis in law on obligation, which in turn gives rise to a constitutive structure that is prospectively oriented and reasoned deductively.

Equality and equal treatment are the principal purpose of WTO law. However, that purpose is accomplished in varying conditions, which make it difficult to regularly attain the consistency and coherence that an egalitarian and obligatory conception of the law assumes. Consequently, this chapter proceeds to demonstrate how WTO law is focused secondarily on fairness and corrective justice and how this focus begets a subordinate emphasis in law on rights, which in turn gives rise to a contractual structure that is retrospectively oriented and reasoned inductively. It also demonstrates how various features of WTO law like the non-violation cause of action and implementation are consistent with such a rights-based ethos.

The communitarian theory of WTO law outlined in previous chapters works reasonably well as a description of key features of WTO law. Its “fit” with the existing law raises the possibility of the theory serving wider applications. That possibility is likely to be canvassed most insistently in relation to international investment law, the body of law pertaining to the protection and treatment of foreign investment by host states. A communitarian theory would forecast international investment law to be preoccupied with corrective justice and to be heavily contractual, retrospective and inductive. The chapter demonstrates how all of these features are confirmed in the shape of contemporary international investment law, and how in light of considerable dissatisfaction with the current investment regime, an impulse is detected toward something more egalitarian, and therefore more obligatory, constitutive, prospective and presumptive.

The chapter summarizes the ideas put forward in this book. It details how justice under the WTO Agreement is transformative as opposed to either purely distributive or corrective. At the same time, that justice must be understood on its own terms and is not for that reason entirely unjust. The chapter also examines the possibility of a communitarian theory serving as a general theory of law. It explains a considerable amount in a way that is naturally coherent and fruitful and offers several predictions and prescriptions about the future of WTO law. At the same time, the chapter acknowledges how a communitarian theory is itself incomplete. This is due to abduction, which stresses the tentative, open-ended nature of current knowledge. Presentism suggests there is a danger in thinking about obligations and rights of countries only in the current moment and not in the broader sense of obligations owed to future generations, and beyond that, the environment we live in.

Time is an active element in a communitarian theory of WTO law. Across the passage of time, the idea-complexes of obligations and rights identified in previous chapters interact, bringing about law in a third overarching idea-complex. This chapter examines how this third idea-complex takes the form of a sui generis legal system generating transformative justice. Here the law focuses on the present and is reasoned abductively according to the best inference consistent with current knowledge. Notwithstanding this reconciliation, the transformations required and induced by it are profound. They demand that actors pay attention to interests other than their own. They also demand that actors conceive of and conform their behavior in light of that transformed interest. In WTO law this interest co-exists uneasily with the sovereignty of states so that there is a persistent tension between individual member interests and the collective interest of the membership. Outcomes of WTO disputes often manifest this basic tension.