Joel Trachtman and Greg Shaffer have a new paper, "Interpretation and Institutional Choice at the WTO
Our article develops a new framework for understanding the drafting and interpretation of the agreements of the WTO, based on comparative institutional analysis. Our aim is to provide a better means for describing and assessing the consequences of choices in treaty drafting and interpretation. Both treaty drafting and judicial interpretation implicate a range of interacting social decision-making processes, including domestic, regional, and international political, administrative, judicial, and market processes — which we collectively refer to as institutions. Our framework focuses attention on the way that choices among alternative institutions implicate different social decision-making processes, thereby affecting participation and welfare. We draw on specific examples from WTO case law to illustrate our framework. While our article focuses on the WTO, the framework that we develop has general relevance for understanding the interpretation of international and domestic legal texts from "law and economics" and "law and society" perspectives. It builds on work by Grief, Komesar, North and Williamson. We develop further the comparative institutional analysis suggested by these and other authors.
Since we are thinking a lot about dispute resolution in international tax law, the way things are done at the WTO matters. The work of interpreting treaties is done in the tax world by competent authorities and is completely confidential--there is no publicity and therefore no possible intellectual analysis of the interpretive and institutional choices being made. Trachtman and Shaffer's work illustrates what a loss this confidentiality presents for us in the tax world--we can see that in trade circles analysis can be undertaken and problems in the system can be identified and subject to public discourse--there is plausibly room for law to develop in such a system.
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