Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective

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Harvard International Law Journal, Vol: 59, Issue: 2, Page: 389

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Caruso, Daniela
Harvard Law School
Regional Trade Agreements; Negative Externalities; WTO Law; Remedies; Private Law Theory; Legal History; Antitrust and Trade Regulation; International Trade Law; Law
article description
In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral deals may be structurally antithetical to a progressive distribution of resources. Towards the goal of contributing to this literature, I draw inspiration and materials from comparative private-law theory. I then review a range of private law doctrines designed to protect non-parties from the negative externalities of discrete agreements, and show how the use of private law analogies in the context of trade theory yields both analytical pay-offs and normative caveats. I conclude that the ongoing attempts to identify, within the framework of international trade law, actionable remedies in favor of non-parties to trade agreements are analytically helpful, but remain distributionally ambivalent and need stronger normative vectors.