Sustaining Multilateralism from the Bench

The surge in regional trade agreements (RTAs) in recent decades has generated growing friction between regionalism and multilateralism in international economic governance, resulting in serious institutional and legal challenges to the World Trade Organization (WTO). In this state of play and with the WTO's negotiating arm trapped in a persistent stalemate, several questions arise: (1) What role, if any, has the WTO dispute settlement system (DSS) played in responding to the challenges posed to the WTO multilateral trade regime by RTA proliferation? (2) How have these systemic challenges affected WTO jurisprudence? And (3) in which ways have these challenges shaped the judicial choices made by the WTO DSS in cases implicating substantive and jurisdictional questions located at the WTO-RTA interface? Based on a close analysis of WTO cases involving RTA-related issues and empirical evidence generated through interviews with WTO practitioners having firsthand knowledge of the DSS's work, this Article shows that the DSS has not remained indifferent to the challenges presented to WTO rules and institutions by increasing economic regionalization. Rather, in the series of RTA-related cases reaching its docket, the DSS has engaged in a determined and enduring quest for sustaining the multilateral trading system from the bench. This quest has evolved along two parallel and mutually reinforcing trajectories: the substantive and the jurisdictional. When woven together, these trajectories demonstrate how a steady body of DSS jurisprudence has emerged. This jurisprudence is animated by a judicial philosophy of seclusion from and ascendency over regionalism and aimed at preserving the multilateral legal order in the face of the unabated surge in RTAs. This judicial philosophy, the Article concludes, nevertheless carries certain challenges of its own for the WTO and international economic law.