The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization (2021)
- Authors:
- Autor USP: MAIA, CLARITA COSTA - FD
- Unidade: FD
- Sigla do Departamento: DIN
- DOI: 10.11606/T.2.2021.tde-15082022-112714
- Subjects: COMÉRCIO INTERNACIONAL; PRINCÍPIO DA PUBLICIDADE; ACCOUNTABILITY; DIREITO À INFORMAÇÃO; DEVIDO PROCESSO LEGAL; BOA-FÉ; FONTES DO DIREITO; RELAÇÕES INTERNACIONAIS; DIREITO COMERCIAL INTERNACIONAL
- Language: Inglês
- Abstract: The thesis examines transparency as a general principle of law and as a general principle of law of the World Trade Organization (WTO). Despite the spread of transparency rules in different national legal systems and the existence of several similar legal provisions in the texts of the WTO agreements, the literature questions the status of transparency as an international custom. However, using the theoretical framework of Umberto Ávila, this author maintains that transparency is a principle of WTO law, as well as a postulate. As a principle, transparency aims at promoting an ideal state of affairs (immediate duty), through the adoption of ecessary conducts (mediate duty) and defined by the specific case. This ideal state of affairs, within the scope of the WTO, is the “communicative transparency”, hold by the second and third generations of WTO transparency rules. Communicative transparency engenders not only legitimacy, but also coherence, consistency and convergence of national rules in relation to the WTO legal regime. This ensures its integrity. Due to this effect, transparency is also a hermeneutical postulate, as it instrumentalizes another postulate, of the same nature, which is the coherence of the legal system, or, in the specific case, of the international trade regime. It is also a non-specific postulate, as it establishes a structural duty, a general idea devoid of application guides. This unspecific postulate assists the specific postulate of reasonableness. To get to this point, the thesis historically deals with the concept of transparency in Political Science, International Relations and Law, since the emergence of the seminal idea of ritualistic, reaching the concept of rule of law, moving on to the historical evolution of the concept of sources of law, and, in it, to the emergence of the idea of a general principle of law, based on the general concepts of equity and justice. The thesis adoptsthe perspective of legal history and, as categories, the radial categories or concepts, by which a concept, in the human sciences, presents maximum and minimum expressions. In the chapter that refers to transparency in international law, the argument begins with the analysis of legitimacy, which is one of the fundamental elements of its legal normativity. It analyzes the democratic deficit in international organizations as an element of lack of legitimacy and, therefore, of the integrity of international regimes. Transits to the analysis of global administrative law and the aspects of constitutionalist thinking in the multilateral trade regime, always in search of a legal-political engineering that overcomes the democratic deficit. It proceeds with the analysis of adjudicatory transparency and begins to analyze the internal, external and administrative transparency of the WTO as a non-revolutionary or reformist institutional response, with high constructivist potential. In the WTO jurisprudential analysis, the thesis reinforces the idea of the evolution to the radial maximum of the principle of transparency and, although recognizing practical difficulties in the execution of several specific notification duties, as well as noting a certain regularity (without significant increases or decreases) of the number of cases with the Dispute Settlement Body (DSB) challenging legal transparency provisions, this author understands that transparency is an ideal state of affairs pursued by extensive interpretations of the scope of the provisions, also guaranteed by the intense work of notifications, which, in spite of its shortcomings, has proved useful for the advancement of the rule of law in the WTO and for the cohesion and integrity of the system
- Imprenta:
- Data da defesa: 18.05.2021
- Este periódico é de acesso aberto
- Este artigo é de acesso aberto
- URL de acesso aberto
- Cor do Acesso Aberto: gold
- Licença: cc-by-nc-sa
-
ABNT
MAIA, Clarita Costa. The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization. 2021. Tese (Doutorado) – Universidade de São Paulo, São Paulo, 2021. Disponível em: https://doi.org/10.11606/T.2.2021.tde-15082022-112714. Acesso em: 05 out. 2024. -
APA
Maia, C. C. (2021). The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization (Tese (Doutorado). Universidade de São Paulo, São Paulo. Recuperado de https://doi.org/10.11606/T.2.2021.tde-15082022-112714 -
NLM
Maia CC. The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization [Internet]. 2021 ;[citado 2024 out. 05 ] Available from: https://doi.org/10.11606/T.2.2021.tde-15082022-112714 -
Vancouver
Maia CC. The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization [Internet]. 2021 ;[citado 2024 out. 05 ] Available from: https://doi.org/10.11606/T.2.2021.tde-15082022-112714
Informações sobre o DOI: 10.11606/T.2.2021.tde-15082022-112714 (Fonte: oaDOI API)
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