Transcending Trade and . . . An Institutional Perspective

This article adopts an institutionalist perspective on the trade and . . . problem, viewing the trade and . . . problem not primarily as a substantive problem, or set of substantive problems, but as an institutional problem. It is a problem of matching appropriate institutions to substantive problems. This institutional perspective recognizes that states have a variety of reasons for seeking to influence regulation in other states. Trade is by no means the sole, or even necessarily the leading, reason. However, this desire for influence encounters the institutional structure of the international system, in which states have limited means to influence the regulation of other states. Thus, this article first sees the trade and . . . problem as a problem of horizontal allocation of authority between states. It describes a law and economics-based approach to horizontal allocation of authority in order to suggest a variety of institutional structures that are available to address this phase of the institutional trade and . . . problem. Often trade and . . . problems are thought of as issues of subsidiarity, seeking to divide authority along a vertical axis. This article suggests how the horizontal allocation of authority relates to vertical allocation of authority, showing what considerations may lead to vertical or organizational solutions to the problem of horizontal allocation of authority, and showing how organizational solutions may respond to concerns regarding regulatory competition. Often, the trade and . . . problem presents itself along this axis, as a problem of conflict between domestic law and international law. However, it is also possible for the trade and . . . problem to arise as a conflict between international trade law and international law arising in other functional areas, such as the environment. Where there are two or more international institutions competing for authority, or seeking to share authority, a different horizontal problem of allocation of authority arises: horizontal at an elevated vertical level. And indeed, a leading issue in the trade and . . . field relates to the problem of choice of law and choice of forum on this rarefied horizontal plane