Lex Portus (Jul 2020)
The history of the principle of transparency in international trade law
Abstract
The present article focuses on the evolution of the principle of transparency and its role in international trade law. The basis of the study is the international legal framework for the transparency requirements, most notably GATT 1947 and GATT 1994. The article traces the roots of transparency in international law and analyses its consecutive development throughout the 20th century and early 21st century. Author applied a number of general scientific and specific legal methods during the study. They allowed to carry out a comprehensive research and analysis the major international treaties in the area of international trade and their evolving provisions on transparency. Author concludes that transparency has become one of the fundamental provisions in the current WTO system. This is indeed confirmed by the WTO Dispute Settlement Mechanism, which now treats the transparency-related claims as substantive claims. Author shows that it was not the case under the GATT 1947 system, which was inefficient to tackle non-transparent measures that started to occur in early 1970s. As a result, such measures severely impacted bilateral trade between many contracting parties to GATT 1947, mostly between Japan and the United States. Author also shows that the United States were the original architect of the transparency provision in GATT 1947, which was largely based on the American administrative law and was called to create a level playing field for American companies in foreign markets, as the United States provided a high level of transparency domestically. Later on, it was also the United States who advocated for the expansion of the transparency requirements in GATT 1994, and eventually ended up being targeted by numerous transparency-related claims in the framework of the Dispute Settlement Mechanism.
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