The WTO and RTAs: A “Bottom-Up” Interpretation of RTAs’ Autonomy Over WTO Law

This chapter suggests a novel, bottom-up approach to the interpretation of Article XXIV of the General Agreement on Tariffs and Trade (GATT), contending that Regional Trade Agreements (RTAs) could be argued to have autonomy over WTO law in the form of tacit acceptance of an international custom, instead of simply as non-compliant behaviour in the context of the WTO legal regime. The question of the customary nature of a 'regional exception' derogating from the world trade legal order, and from the MFN principle, is absolutely central to the present analysis. Although this question has been widely discussed for more than a century in international legal literature, the answer is even more uncertain and controversial today than it was in the past. This is most probably due to the fact that, while until a few decades ago the formation of RTAs was a sporadic phenomenon which did not, apart from the case of the EEC, affect significantly the global economic relations, regionalism has now developed so exponentially both in number and in quality of RTAs that the MFN standard and the whole world trade system are under threat.