Mapping Inclusive Law and Regulations: A Comparative Agenda for Trade and Development

From the Journal:
Katrin Kuhlmann

There is a growing consensus that we are at a turning point in international trade law and international economic law (IEL) more generally, signaling the possibility for a more inclusive and sustainable approach to law and development. The multilateral system of trade rules has reached an impasse, and the COVID-19 pandemic, resulting economic crisis, and mounting issue of climate change highlight vulnerabilities that the current rules-based system is ill-equipped to address. These include systemic vulnerability at the State level and vulnerabilities at a more disaggregated, stakeholderspecific level that impact individuals and communities. Given that more vulnerable and less diverse economies, racial and ethnic minorities, indigenous and rural populations, and smaller enterprises tend to be disproportionately underrepresented in the global economic system, it is time to issue a strengthened call for new normative frameworks and a concrete plan of action for inclusive trade and development. The vulnerabilities of “State” and “subject” also argue for fresh approaches that incorporate more diverse legal innovations and go beyond narrow “best practices” in IEL.

This paper contributes to the literature in two ways. First, it compares legal approaches for addressing vulnerability at both the State and stakeholder levels, framing legal and regulatory design and implementation in light of inclusive and sustainable development. In the context of State vulnerabilities, the paper incorporates traditional approaches to trade and development, namely use of special and differential treatment and the assertion of “policy space”, as well as growing trends to incorporate flexibility and sustainable development into legal mechanisms. The article goes beyond this foundation, however, to present a lens through which to assess rules and their impact at the more individual or stakeholder level, linking a “bottom-up” approach to law and development with the more traditional State-to-State model. This aspect of the paper draws upon a decade of empirical work conducted in sub-Saharan Africa and Asia and illustrative case studies to highlight an approach that could inform future IEL.

The paper’s second contribution is the presentation of an analytical framework, or topology, and preliminary set of options that allow for comparison of the design and implementation of economic law across seven dimensions: (1) special and differential treatment; (2) flexibility; (3) sustainable development; (4) equity; (5) engagement, inclusiveness, and transparency; (6) legal and regulatory gateways; and (7) implementation and impact. Across all seven dimensions, the paper highlights innovative legal and regulatory approaches present in both trade agreements and domestic law. The seven dimensions, and the methodology presented in the paper, establish the basis for a broader research agenda that maps and eventually measures inclusive design and implementation of international and national economic law, collectively referred to as “inclusive regulation”. Ultimately, the paper proposes a new model for using economic law to better address both systemic and individual vulnerabilities as we usher in a new chapter in international trade law and IEL.

Cite as: Katrin Kuhlmann, Mapping Inclusive Law and Regulations: A Comparative Agenda for Trade and developmentVolume 2, AfJIEL, (2021), 48-87.