Introduction

The concept of legal certainty is a central element of most legal systems in the world (Maxeiner 2008: 28). It can be associated with the rule of law, but variations exist concerning its exact contours and its relative importance vis-à-vis other fundamental legal principles. In particular, legal certainty is often contrasted with principles of justice or rightfulness (von Arnauld 2006: 638). Indeed, a formal understanding of legal certainty which focuses on issues of stability and consistency does not guarantee a fair and just outcome. More fundamentally, even though legal certainty is one of the most effective safeguards against governmental and administrative arbitrariness, it offers no protection against unjust or unfair laws. How can the potential for conflict between legal certainty and justice be solved?

Writing shortly after the breakdown of the Nazi dictatorship, the German legal philosopher Gustav Radbruch (1946: 107) gave this answer: ‘The conflict between justice and legal certainty should be solved in such a manner that positive law should be considered supreme even if it is unjust or unreasonable unless the conflict between positive laws and justice reaches such an intolerable level that the statute – as ‘incorrect law’ – has to yield to justice’ (author’s translation from German). Even though this famous quote aimed predominantly at reconciling extreme forms of injustice with legal positivism, it highlights the fundamental importance of legal certainty in modern constitutionalism and legal philosophy and the difficulty of balancing legal certainty with justice.

Introduction

The debate about the legitimacy deficit of the World Trade Organization (WTO) and of other international economic institutions forms a core element of the legal and political discourse about global economic governance (Esty 2002: 7; Nye 2003). Parliamentary and civil society interest in and engagement with issues of global economic governance continue to flourish. Questions about legitimacy and democratisation will also remain a prominent element of the debate about the institutional structure and the reform of the decision-making processes of global economic institutions.

This chapter aims to contribute to this debate by analysing the potential role of transnational parliamentary institutions and framing this analysis in the wider debate about democratic legitimacy at the international level. The chapter is organised in five main sections. The first section identifies different usages of the key notions of legitimacy and democracy and relates them to each other. Based on this, a framework for the analysis of the potential of transnational parliamentarisation as a means of reducing the democratic deficit of global economic governance is developed. Transnational parliamentarisation is explained in the next section, as the growing trend of parliamentary activities beyond the nation state. This involves the proliferation of parliamentary assemblies in various regional settings and the emergence of less formal parliamentary dimensions of global economic governance. The third and fourth sections of the chapter discuss the Parliamentary Conference on the WTO (PCWTO) and the Parliamentary Network on the World Bank (PNoWB), as two recent examples of transnational parliamentarisation.

Necessity as a (contentious) element of world trade law

The requirement that a measure should not be more trade-restrictive or burdensome than necessary to achieve a specific goal is a central, but contentious element of the multilateral trading system. Two functionally different contexts of a necessity test need to be distinguished: necessity can be part of the requirements of an exception clause, such as Article XX GATT. In this case, necessity only becomes relevant for the justification of a measure, which would otherwise be GATT-inconsistent. This context is the traditional sedes materiae of necessity and has been part of the world trading system since 1948. More recently, and especially with the entry into force of the WTO Agreement, necessity tests have also been integrated in positive obligations, in particular in the TBT and SPS Agreements. Necessity tests are not restricted to the multilateral trading system. In various degrees, they can also be found in exception clauses and positive obligations of regional integration and bilateral trade agreements.

The GATS contains references to both types of necessity tests: the general exception clause of Article XIV GATS includes necessity tests which are similar to the ones in Article XX GATT. The necessity test in the negotiating mandate of Article VI:4 GATS envisages a positive requirement. As Panos Delimatsis rightly recalls, this necessity test is a controversial subject of the negotiations on disciplines on domestic regulation in the WTO.

Introduction

With the suspension of the multilateral trade negotiations in July 2006, discussions about the scope of future rules in the WTO framework may seem futile. Although formally the suspension concerns only the Doha Development Agenda (DDA) and WTO Members can always revive the negotiations, it is unlikely that new rules will be agreed upon in the near future. Instead of reducing scholarly interest in the scope and content of future rules, the current situation should stimulate reflection and discussion. In fact, without the straitjacket of ongoing negotiations and the necessity of commenting on existing negotiation proposals, academics should seize the opportunity to reconsider some aspects of the conventional wisdom of the WTO system and engage in a critical and radically different discourse about the future of the trading system.

This chapter aims to contribute to such an exercise with regard to a limited area of WTO law. It concerns the content and scope of future General Agreement on Trade in Services (GATS) rules, in particular whether and to what extent GATS should incorporate provisions on recognition, standardisation or harmonisation. Recognition, standardisation and harmonisation are advanced instruments of trade liberalisation which can already be found in some WTO agreements, notably the Agreement on Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). The aim of these instruments is to reduce the trade-distorting effect of diverging domestic regulations in the territories of different WTO Members.