Modern trade agreements have come to include many and varied obligations for domestic regulation and administration. These treaty-based commitments aim primarily to improve the freedom of firms to operate in the global economy by aligning the ways in which governments regulate markets and private actors engage governments through administrative law. They therefore strike at the core of how economies are ordered and entail important distributional questions. An increasingly prevalent and diverse—but hitherto largely neglected—type of treaty obligation prescribes specific procedures for domestic administrative decision-making. This Article frames such requirements as tools of powerful states to control regulatory decision-making by government officials in other states. These obligations operate as instruments of transnational remote control by empowering private actors—predominantly well-organized business interests—directly to use these procedures to pursue and defend their interests in other states. To make this case, this Article for the first time synthesizes McNollgast’s conception of regulatory procedures in the purely domestic context as instruments of political control, and Putnam’s theorization of international treaty negotiations as a two-level game. By applying this new synthesis to trade agreements, this Article shows how procedural obligations can be designed to stack the deck in favor of certain private interests and why treaty negotiators may find it easier to agree on procedures than substantive commitments. This Article uses its synthetic conception to explain the accelerating rise of procedural requirements in post-war international economic law and demonstrates its explanatory potential by analyzing the variation between strong transnational regulatory procedures for intellectual property rights and weak procedural protections for the environment in the revived Trans-Pacific Partnership agreement.
Paul Mertenskotter and Richard B. Stewart, Remote Control: Treaty Requirements for Regulatory Procedures, 104 Cornell L. Rev. 165
Available at: https://scholarship.law.cornell.edu/clr/vol104/iss1/5