The public-private distinction at the world trade organization: Fundamental challenges to determining the meaning of "public body"

Abstract

The distinction between the public and the private is a conceptual fault line in World Trade Organization (WTO) law. The WTO regulates a range of public activities that impact the ability of private actors to engage freely in the market. Difficulties arise where the nature of the bodies that WTO law seeks to regulate is unclear. The Agreement on Subsidies and Countervailing Measures (SCM Agreement) is a notable case in point. The regulation of subsidies at the WTO is of particular importance, structuring the relationship between governments and markets of WTO members, yet despite the wide scope and importance of the SCM Agreement, there exist theoretical deficiencies underpinning key terms. This paper examines the definition of "public body" under the SCM Agreement as one such example. Moving beyond the competing interpretations offered by panel and Appellate Body reports, this paper suggests that the underlying conceptual foundations of the term are inadequate and offers tentative suggestions to remedy this failing. Specifically, an approach based on the distinction between private and public aims is posited as an alternative. Identifying the importance that conceptions of the "public" have in international law more generally, this paper argues for greater engagement with the conceptual underpinnings of terms such as "public body" so as to provide a meaningful basis for some of the foundational terms in current international law.