The fragmentation of international trade and investment law by a multitude of agreements and, in particular the advent of interregional bilateral and multilateral treaties, call for an effort to identify and synthesize the common traits, working towards a common law of international trade. Scholarship can make an important contribution to this effect, albeit not in isolation. Dialogue between all the stakeholders and communities involved is necessary. Research should seek to identify commonalities, shared traits, and the common core in interpreting principles of rules of trade and investment. At the same time, strong central institutions are necessary. Scholarship alone cannot suffice. The WTO and its dispute settlement mechanism play a pivotal role in this process in interpreting WTO law and disciplines. The reports of panels and the Appellate Body make an important contribution to expounding the common law. They increasingly influence the interpretation of other agreements and contribute to the evolution of the common law. The WTO is much stronger than perceived by the public at large. Nevertheless, new regulatory needs call for new structures in building the common law. Jurisdiction should be extended to PTAs compatible with WTO law in arbitration and eventually in regular WTO dispute settlement. Members should grant a more active and formal role to the Secretariat in the process of implementation and adjudication, defending common core principles of the multilateral system. Negotiations should be structured in such a manner that the Organization can assume an important role in negotiating rules relating to non-tariff barriers, while market access bargaining is likely to stay with preferential agreements in the coming years. Whether or not negotiations on non-tariff measures take place in preferential fora or within the WTO is mainly a matter of political will, and not of the logic of the law. Members will take pros and cons into account, depending on freeriding, spillover effects, and efficiency. Small- and medium-sized countries are better off in negotiating non-tariff barriers within the WTO as they will inevitably need to adjust to emerging global standards. Negotiating within the WTO also means being able to influence agendas and outcomes and actively contribute to the development of global common law. Moreover, they benefit from the advantages of multilateral negotiations discussed above. Results achieved in the WTO clearly render them subject to dispute settlement and multilaterally authorized enforcement, while today this remains excluded for agreements that are incompatible with WTO law. A number of issues are inherently multilateral and cannot be effectively dealt with in preferential agreement due to excessive freeriding effects and inefficiency if limited to a number of parties. They are, next to dispute settlement, key unique selling points of the WTO. Capping levels of subsidies, in particular in agriculture and fisheries, or for industrial policy, cannot be efficiently addressed in preferential agreements, as disciplines inherently need to extend to all competitors. Norms relating to global infrastructure, such as telecommunications, radio, television, and the Internet inherently need to be addressed in global fora. For example, issues relating to privacy of data flows in the context of Internet services cannot be effectively addressed in preferential terms without creating loopholes. Norms and standards relating to a future interregional or global grid for sustainably produced electricity inherently need to be addressed on the global level. These examples show a shift from trade liberalization to trade regulation being the core business of the WTO in producing global public goods of this kind. Negotiating in the WTO also means that conflicts between different regimes can be eliminated, as countries do not need to choose among different treaty regimes in the context of domestic implementation. The future WTO will resemble, much more than it does today, an institution dedicated to ongoing processes of lawmaking, independent of the expectations and frustrations of trade rounds. The perception of the Organization will be one of a global regulator, monitor, and of a world trade court balancing and harnessing the process of globalization. It will be firmly established as a branch and level of multilevel governance. It will be perceived as the centre in the formation of the body of global common law of international trade, able to coordinate its different branches, including jurisdiction over preferential trade and investment agreements. It will be assisted by a community of scholars, judges, practitioners, non-governmental organizations in international economic law dedicated to expounding the common and shared ground in comparative teaching and research, and contributing to the evolution and coherence of the common law of international trade. A shared goal and belief in building the common law, stabilizing, and harnessing global markets will make a difference in restoring the tricycle in Geneva as the WTO moves into the third decade. © 2015 The Author.
