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The 2030 UN Sustainable Development Agenda defines its 17 Sustainable Development Goals (SDGs) in terms of human rights, rule of law and multilevel governance of related public goods. Global governance failures challenge the ‘embedded liberalism’ and rule-of-law principles underlying UN and WTO law. WTO rules promoting non-discriminatory ‘regulatory competition’ among neo-liberal Anglo-Saxon countries, China’s totalitarian state capitalism, Europe’s multilevel constitutionalism and ‘third world conceptions’ of international law are disrupted by geopolitical rivalries. This contribution explains why the SDGs cannot be realized without multilevel legal and judicial restraints on ‘market failures’ (like environmental pollution) and ‘governance failures’ (like hegemonic trade wars, US disruption of the WTO dispute settlement system). As long as international law is conceived as power politics privileging domestic interest groups, the cosmopolitan SDGs risk being undermined. Protecting human rights and de-carbonizing economies require democratic struggles for holding governments more accountable, as illustrated by citizen-driven environmental litigation in Europe and by disregard for SDGs by authoritarian and populist governments.

The 2030 UN Sustainable Development Agenda defines its 17 Sustainable Development Goals (SDGs) in terms of human rights, rule of law and multilevel governance of related public goods. Global governance failures challenge the ‘embedded liberalism’ and rule-of-law principles underlying UN and WTO law. WTO rules promoting non-discriminatory ‘regulatory competition’ among neo-liberal Anglo-Saxon countries, China’s totalitarian state capitalism, Europe’s multilevel constitutionalism and ‘third world conceptions’ of international law are disrupted by geopolitical rivalries. This contribution explains why the SDGs cannot be realized without multilevel legal and judicial restraints on ‘market failures’ (like environmental pollution) and ‘governance failures’ (like hegemonic trade wars, US disruption of the WTO dispute settlement system). As long as international law is conceived as power politics privileging domestic interest groups, the cosmopolitan SDGs risk being undermined. Protecting human rights and de-carbonizing economies require democratic struggles for holding governments more accountable, as illustrated by citizen-driven environmental litigation in Europe and by disregard for SDGs by authoritarian and populist governments.

The 2030 UN Sustainable Development Agenda defines its 17 Sustainable Development Goals (SDGs) in terms of human rights, rule of law and multilevel governance of related public goods. Global governance failures challenge the ‘embedded liberalism’ and rule-of-law principles underlying UN and WTO law. WTO rules promoting non-discriminatory ‘regulatory competition’ among neo-liberal Anglo-Saxon countries, China’s totalitarian state capitalism, Europe’s multilevel constitutionalism and ‘third world conceptions’ of international law are disrupted by geopolitical rivalries. This contribution explains why the SDGs cannot be realized without multilevel legal and judicial restraints on ‘market failures’ (like environmental pollution) and ‘governance failures’ (like hegemonic trade wars, US disruption of the WTO dispute settlement system). As long as international law is conceived as power politics privileging domestic interest groups, the cosmopolitan SDGs risk being undermined. Protecting human rights and de-carbonizing economies require democratic struggles for holding governments more accountable, as illustrated by citizen-driven environmental litigation in Europe and by disregard for SDGs by authoritarian and populist governments.

Whether bilateral or regional trade agreements are rather friends or rivals of the multilateral trading system is an evergreen question of international economic law. Recent times clearly show an ever faster increase of such agreements in numbers and their regional as well as substantial reach grows dramatically. Economic theory seems to be unclear as to the conditions under which RTAs might be useful or harmful. The rules on RTAs embedded in the WTO legal framework are far from being precisely phrased and the institutional oversight of RTAs – with an unresolved delineation of competences between political and judicial bodies – has proven completely ineffective. The new 2006 Transparency Mechanism adopted in the course of the Doha Round will not change this to the better. Some of the more intricate questions that are raised by full membership of RTAs such as the EC in the WTO have not even be seriously be addressed. However, the rather nebulous and unclear rules combined with an inconclusive institutional setup may be exactly what is necessary to deal with RTAs in order to ensure the survival of the multilateral trading system. A more restricted approach to the obvious desire of WTO Members to pursue bilateral and regional trading strategies could as well turn out against the multilateral system itself if Members were seriously confronted with the need to choose between one or the other.

Whether bilateral or regional trade agreements are rather friends or rivals of the multilateral trading system is an evergreen question of international economic law. Recent times clearly show an ever faster increase of such agreements in numbers and their regional as well as substantial reach grows dramatically. Economic theory seems to be unclear as to the conditions under which RTAs might be useful or harmful. The rules on RTAs embedded in the WTO legal framework are far from being precisely phrased and the institutional oversight of RTAs – with an unresolved delineation of competences between political and judicial bodies – has proven completely ineffective. The new 2006 Transparency Mechanism adopted in the course of the Doha Round will not change this to the better. Some of the more intricate questions that are raised by full membership of RTAs such as the EC in the WTO have not even be seriously be addressed. However, the rather nebulous and unclear rules combined with an inconclusive institutional setup may be exactly what is necessary to deal with RTAs in order to ensure the survival of the multilateral trading system. A more restricted approach to the obvious desire of WTO Members to pursue bilateral and regional trading strategies could as well turn out against the multilateral system itself if Members were seriously confronted with the need to choose between one or the other.

Whether bilateral or regional trade agreements are rather friends or rivals of the multilateral trading system is an evergreen question of international economic law. Recent times clearly show an ever faster increase of such agreements in numbers and their regional as well as substantial reach grows dramatically. Economic theory seems to be unclear as to the conditions under which RTAs might be useful or harmful. The rules on RTAs embedded in the WTO legal framework are far from being precisely phrased and the institutional oversight of RTAs – with an unresolved delineation of competences between political and judicial bodies – has proven completely ineffective. The new 2006 Transparency Mechanism adopted in the course of the Doha Round will not change this to the better. Some of the more intricate questions that are raised by full membership of RTAs such as the EC in the WTO have not even be seriously be addressed. However, the rather nebulous and unclear rules combined with an inconclusive institutional setup may be exactly what is necessary to deal with RTAs in order to ensure the survival of the multilateral trading system. A more restricted approach to the obvious desire of WTO Members to pursue bilateral and regional trading strategies could as well turn out against the multilateral system itself if Members were seriously confronted with the need to choose between one or the other.

Whether bilateral or regional trade agreements are rather friends or rivals of the multilateral trading system is an evergreen question of international economic law. Recent times clearly show an ever faster increase of such agreements in numbers and their regional as well as substantial reach grows dramatically. Economic theory seems to be unclear as to the conditions under which RTAs might be useful or harmful. The rules on RTAs embedded in the WTO legal framework are far from being precisely phrased and the institutional oversight of RTAs – with an unresolved delineation of competences between political and judicial bodies – has proven completely ineffective. The new 2006 Transparency Mechanism adopted in the course of the Doha Round will not change this to the better. Some of the more intricate questions that are raised by full membership of RTAs such as the EC in the WTO have not even be seriously be addressed. However, the rather nebulous and unclear rules combined with an inconclusive institutional setup may be exactly what is necessary to deal with RTAs in order to ensure the survival of the multilateral trading system. A more restricted approach to the obvious desire of WTO Members to pursue bilateral and regional trading strategies could as well turn out against the multilateral system itself if Members were seriously confronted with the need to choose between one or the other.

The latin adage ‘ubi commercium, ibi jus’ reflects the insight that the efficiency of markets and trade depend on legal guarantees of market freedoms (such as freedom of contract, property rights), legal security (e.g. as incentive for investments and division of labour) and on legal limitations of ‘market failures’ as well as of ‘government failures’. Since Adam Smith, economists increasingly acknowledge these interdependencies between economic, legal and social order, for example between the economic objective of promoting consumer welfare through legal guarantees of consumer-driven competition and open markets, and the democratic objective of protecting individual self-government and peaceful cooperation among citizens through constitutional guarantees of equal freedoms and social justice. The lawyers, economists and politicians belonging to the post-war German schools of ‘ordo-liberalism’ (including German chancellor L.Erhard and his secretaries of state W.Hallstein and A.Müller-Armack who represented Germany in the EEC Treaty negotiations) succeeded in basing the German and EC ‘economic constitution’ on constitutional guarantees of market freedoms, competition rules and a ‘social market economy’ committed to respect for human rights. Yet, the EC initiatives for ‘constitutionalizing’ the world trading system – for example, by correcting ‘international market failures’ by means of new WTO competition, environmental, investment and development rules, and for limiting the WTO’s ‘governance failures’ by democratic and judicial reforms – appear to have foundered after more than 5 years of negotiations in the ‘Doha Development Round.’ This contribution discusses ‘constitutional problems’ of national and intergovernmental economic governance from the perspective of constitutional theory and constitutional economics by using the example of the disagreement among the 151 WTO Members on defining the ‘development objectives’ of the WTO’s ‘Development Round.’ Constitutional

The latin adage ‘ubi commercium, ibi jus’ reflects the insight that the efficiency of markets and trade depend on legal guarantees of market freedoms (such as freedom of contract, property rights), legal security (e.g. as incentive for investments and division of labour) and on legal limitations of ‘market failures’ as well as of ‘government failures’. Since Adam Smith, economists increasingly acknowledge these interdependencies between economic, legal and social order, for example between the economic objective of promoting consumer welfare through legal guarantees of consumer-driven competition and open markets, and the democratic objective of protecting individual self-government and peaceful cooperation among citizens through constitutional guarantees of equal freedoms and social justice. The lawyers, economists and politicians belonging to the post-war German schools of ‘ordo-liberalism’ (including German chancellor L.Erhard and his secretaries of state W.Hallstein and A.Müller-Armack who represented Germany in the EEC Treaty negotiations) succeeded in basing the German and EC ‘economic constitution’ on constitutional guarantees of market freedoms, competition rules and a ‘social market economy’ committed to respect for human rights. Yet, the EC initiatives for ‘constitutionalizing’ the world trading system – for example, by correcting ‘international market failures’ by means of new WTO competition, environmental, investment and development rules, and for limiting the WTO’s ‘governance failures’ by democratic and judicial reforms – appear to have foundered after more than 5 years of negotiations in the ‘Doha Development Round.’ This contribution discusses ‘constitutional problems’ of national and intergovernmental economic governance from the perspective of constitutional theory and constitutional economics by using the example of the disagreement among the 151 WTO Members on defining the ‘development objectives’ of the WTO’s ‘Development Round.’ Constitutional

The following Report will be presented to the 22nd FIDE Congress to be held in Limassol, Cyprus, 1-4 November 2006. It has been prepared in response to a questionnaire devised by the General Rapporteur, Professor Piet Eeckhout, which is reproduced as an Annex. It seeks to do two things: first, to respond to the questions and issues raised by the General Rapporteur, and second to comment on some issues and recent developments which are particularly relevant to the relationship between the European Union and its Member States in the external relations field. These include the obligation on Member States when exercising their own external competence to comply with their Community law obligations, including procedural obligations; issues relating to choice of legal base for external action, and in particular the impact of the pillar structure when characterising EU external action; international responsibility under mixed agreements; and the relationship between international law and EU law.

The following Report will be presented to the 22nd FIDE Congress to be held in Limassol, Cyprus, 1-4 November 2006. It has been prepared in response to a questionnaire devised by the General Rapporteur, Professor Piet Eeckhout, which is reproduced as an Annex. It seeks to do two things: first, to respond to the questions and issues raised by the General Rapporteur, and second to comment on some issues and recent developments which are particularly relevant to the relationship between the European Union and its Member States in the external relations field. These include the obligation on Member States when exercising their own external competence to comply with their Community law obligations, including procedural obligations; issues relating to choice of legal base for external action, and in particular the impact of the pillar structure when characterising EU external action; international responsibility under mixed agreements; and the relationship between international law and EU law.

The following Report will be presented to the 22nd FIDE Congress to be held in Limassol, Cyprus, 1-4 November 2006. It has been prepared in response to a questionnaire devised by the General Rapporteur, Professor Piet Eeckhout, which is reproduced as an Annex. It seeks to do two things: first, to respond to the questions and issues raised by the General Rapporteur, and second to comment on some issues and recent developments which are particularly relevant to the relationship between the European Union and its Member States in the external relations field. These include the obligation on Member States when exercising their own external competence to comply with their Community law obligations, including procedural obligations; issues relating to choice of legal base for external action, and in particular the impact of the pillar structure when characterising EU external action; international responsibility under mixed agreements; and the relationship between international law and EU law.