Does International Economic Law Impose a Duty to Negotiate?

Abstract

In two early WTO cases, the Appellate Body found a failure to engage in negotiations to be arbitrary or unjustifiable discrimination under the GATT Article XX chapeau. Subsequent jurisprudence has not applied a negotiation requirement. Instead, it analyzes whether discrimination is arbitrary or unjustifiable by focusing on the cause of the discrimination, or the rationale put forward to explain its existence, which would exclude a duty to negotiate in many circumstances. The issue of whether there is a duty to negotiate is a systemic issue for international economic law. The Article XX chapeau language appears in other WTO agreements and in other international economic law treaties, including those that address environmental protection, regional trade and international investment. This article argues that there is no such duty in WTO law.