1 Mar 2019
Der Strukturwandel des Aussenwirtschaftsrechts
Article by Thomas Cottier in Swiss Review of International and European Law, published by Schulthess (2019), pp. 203-229
Globalization, regionalisation and extensive levels of division of labour and value chains shape the context of international economic law. International trade today is mainly trade in components. The paper describes the evolution from border measures in trade, to non-tariff barriers and matters today which traditionally pertained to domestic law and legislation. Such structural changes do not remain without major impact. Firstly, the paper argues that bilateralism is not suitable to address complex regulatory affairs and plurilateral or multilateral avenues are needed except for major powers. Efforts to resume TTIP negotiations engaging transatlantic regulatory cooperation between the US, NAFTA, EU and EFTA should be resumed in order to address contemporary challenges, such as climate change or Big Data. They prepare the ground to take such matters up in the WTO. Secondly, the paper argues that domestic modes of decision-making need to be revised in order secure democratic legitimacy. Front-loading trade policy implies that fundamental decisions are taken at the outset, rather than at the end of negotiating processes. The paper submits the idea to create a new Swiss trade act which comprises both principles and procedures, informing subsequent negotiations.