Paul Mertenskötter & Richard B. Stewart

Published in 104 Cornell Law Review 165-232 (2018)

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 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 treaty requirements for regulatory procedures as instruments of remote control. They are negotiated for by government officials in strong states that seek to advance the interests of the commercial interests they take to represent. These commitments empower private actors—predominantly well-organized business interests—to directly use these procedures to pursue and defend their interests in other states. To make this case, the 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, the Article shows how procedural obligations can be designed to stack the deck to favor certain private interests and why treaty negotiators may find it easier to agree on procedures than substantive commitments. The 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 regulatory procedures for intellectual property rights and weak procedural protections for the environment in the newly-revived Trans-Pacific Partnership.