Fair enough. I think what you call the “traditionalist” topics remain very important, and often my contributions to this blog have focused on them. But as you acknowledge times are changing and I have had a unit on trade and national security for example even to my basic introductory trade law course at NYU. Sent from my iPhone

If you think that sanctions are not relevant to international economic law and policy today, all I can say is I totally disagree.

See around paragraph 94 of US-Shrimp, Appellate Body, 21.5 for example.

there is no requirement of exhaustion of domestic remedies (or finality, for example as would be the case for denial of justice in an ISDS claim) in WTO law. The fact that a matter is still before the US courts or could be the subject of further appeal is not a basis for a WTO panel declining jurisdiction (see the Shrimp/Turtle dispute).

But here Steve I am addressing potential state measures that would restrict a company from freely making decisions about the exportation of its products, and those kinds of restrictions, de jure and de facto, have been often litigated in WTO dispute settlement.

Under the general rules of state responsibility in international law, a "state" is responsible for the conduct of subnational governments. This principle is reflected in Article XXIV:12 of the GATT, and the subsequent Understanding on Article XXIV makes it even clearer that subnational measures are justiciable in WTO dispute settlement.

Dear Rob and Steve (if I may?), Thanks so much for your interest in this piece! Yes Rob, it is certainly the case that on the same day that the UK and US accepted majority voting in the GATT, they each put forward proposals for weighted voting in the ITO, suggesting that they may have been less worried about the former due to its provisional nature. And although majority voting was eventually accepted for the ITO as well, Senate records indicate that this was a source of domestic discontent in the US and may have contributed to the ITO's failure to pass Congress (for a great article on this see, Ayse Kaya, ‘Designing the Multilateral Trading System: Voting Equality at the International Trade Organization’ (2016) 15 World Trade Review 25). In transforming the GATT in 'the' multilateral trade regime, then, it makes sense that the US looked for other ways to render the decision-making structure more 'weighted'. Though we may never know for sure why the GATT turned to consensus in the early 1950s. I agree with you Steve that consensus decision-making can sometimes work well and even be preferable to majority voting (eg in a small organisation with a largely equal membership base). For me, the trouble with consensus decision-making is that it can replicate underlying power relations. As such, in an organisation like the GATT/WTO where there are Members with all different levels of income and geopolitical power, it can have a highly weighted effect. Though one may consider the AB impasse to be an instance of consensus decision-making's 'bad' side and the TRIPS waiver to be an instance of its 'good' side (though I wouldn't personally agree with this characterisation), to me, the issue is that neither of these blockages could have been achieved by most other WTO Members. In this regard, whether consensus is used for mischief or to prevent it, is a matter only for the powerful. Thanks again for your kind interest and engagement. Kind regards, Claerwen Claerwen O'Hara | PhD Candidate, Teaching Fellow and Member of the Institute for International Law and the Humanities (IILAH) Co-Chair, Gender, Sexuality and International Law Interest Group at the Australian and New Zealand Society of International Law (ANZSIL) Melbourne Law School Level 8, 185 Pelham Street, Carlton Victoria 3053 The University of Melbourne, Victoria 3010 Australia [email protected] Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the traditional owners and custodians of the land on which the law school stands, for which sovereignty was never ceded. We pay our respects to their Elders past, present and to come. From: Robert Howse <[email protected]> Sent: Wednesday, June 30, 2021 10:44 PM To: [email protected] <[email protected]>; Claerwen O'Hara <[email protected]>; Steve Charnovitz <[email protected]> Subject: [EXT] Re: Typepad: [International Economic Law and Policy Blog] @SteveCharnovitz submitted a comment on "Decision & Democracy at the WTO: An Insightful New Study Offers a Genealogy of the Consensus Norm" External email: Please exercise caution Steve, I didn't remember from our past connections you were on the side of the IP interests. But putting the TRIPs Waiver aside, of course voting/majoritarianism was an innovation. To the extent that a new legal obligation could be created that might bind a state w/o its specific consent, this was a form of idealism about global governance specific to the ending-of-WWII institution-creating moment. See on aspects of this Anne Marie Slaughter, "Regulating the World." https://scholar.princeton.edu/sites/default/files/slaughter/files/multilateralism.pdf. Also my colleague Ryan Goodman on treaty reservations. What is interesting is that in the UNSC design the great powers protected their sovereignty through vetoes for the P-5, and in the IMF and World Bank by weighted voting. But they didn't protect themselves in the GATT and as I recall O'Hara suggests that might be connected to the demise of the ITO project and then the salvation of a multilateral trade institution through proceeding with a self standing GATT, which wasn't supposed to be regulatory but a negotiating framework for tariff reductions based on reciprocity? In any case, it just seems right to me O'Hara's insight that consensus emerged as a substitute for the weighted voting or great power vetoes that the other postwar institutions had explicitly built into their charters, reflecting power arrangements & the unwillingness of the powerful to give prior consent to the compromise of sovereignty. Anyhow, I'm copying O'Hara on this response to you. Rob

Steve, I didn't remember from our past connections you were on the side of the IP interests. But putting the TRIPs Waiver aside, of course voting/majoritarianism was an innovation. To the extent that a new legal obligation could be created that might bind a state w/o its specific consent, this was a form of idealism about global governance specific to the ending-of-WWII institution-creating moment. See on aspects of this Anne Marie Slaughter, "Regulating the World." https://scholar.princeton.edu/sites/default/files/slaughter/files/multilateralism.pdf. Also my colleague Ryan Goodman on treaty reservations. What is interesting is that in the UNSC design the great powers protected their sovereignty through vetoes for the P-5, and in the IMF and World Bank by weighted voting. But they didn't protect themselves in the GATT and as I recall O'Hara suggests that might be connected to the demise of the ITO project and then the salvation of a multilateral trade institution through proceeding with a self standing GATT, which wasn't supposed to be regulatory but a negotiating framework for tariff reductions based on reciprocity? In any case, it just seems right to me O'Hara's insight that consensus emerged as a substitute for the weighted voting or great power vetoes that the other postwar institutions had explicitly built into their charters, reflecting power arrangements & the unwillingness of the powerful to give prior consent to the compromise of sovereignty. Anyhow, I'm copying O'Hara on this response to you. Rob

Thanks Steve-you actually got me to go looking for Simon's last post on this topic! Yes we are very much on the same wavelength. As someone who isn't a US public lawyer, I found Medellin hard to follow; but I gather it all depends on the tribunal and the US implementing legislation. The latter in the case of the WTO seems to preclude as you say the kind of accountability in question, through US courts, at least with respect to WTO obligations as such rather than statutory provisions implementing them. But again I'm a bit out of my depth.

Thanks Greg. You have grasped and elaborated exactly the spirit in which I make thiese suggestions. I look forward to further exchanges on this, and to continuing to learn from your own work on these and related themes.

There are two answers. The first is that throwing away an opportunity to move the US toward re-engagement with global order is idiotic; we should all be celebrating that there appears to be a dent in Mr. Trump's dogmatic atavistic anti-globalism (and I say this as someone who is critical of many aspects of existing global order). The second is economic interests (access to US markets). One hopes that these prevail over the wounded pride of the spurned suitor, or whatever.

Thanks for this. As you can see from the instruments that I cited in the blog post, WTO law and practice distinguishes between 2 types of international organizations, intergovernmental organizations and nongovernmental organizations. As the WEF is obviously not an intergovernmental organization, it thus falls into the latter category. Still, I am curious, what consequences under Swiss law flow from the circumstances you report?