This Note seeks to describe the legal system of the World Trade Organization
(WTO) by analyzing the extent to which countries that are members of the WTO
can contract out of WTO obligations. The current literature on the WTO provides
two primary models through which we can understand the WTO’s legal regime: a
constitutional model and a contractual model. The constitutional model sees the
WTO as a legal system that cannot be easily varied by individual WTO members
because WTO commitments are made to all members. Alternatively, the contractual
model describes WTO obligations as easily variable by subsets of members, since
WTO commitments are made only on a bilateral (country-to-country) basis. This
Note addresses that debate by looking at the ability of WTO members to contract
out of WTO obligations through bilateral and regional trade agreements, whereby
two or more members define the trade rules governing their relationship outside of
the WTO legal regime. WTO law governing regional trade agreements reveals that,
on the one hand, member states cannot contract out of all WTO obligations; certain
core obligations cannot be varied. However, there remains significant scope for
contracting out through regional trade agreements on most subjects. Therefore,
both the constitutional and contractual models are insufficient and do not accurately
describe the nature of WTO obligations.
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