THE OECD CONTRIBUTION TO THE EVOLUTION OF TWENTY-FIRST CENTURY TRADE LAW[dagger]

My task in this symposium was to reflect on the extent to which the Organisation for Economic Co-operation and Development (OECD) shapes the framework of public international law. My reflection starts with a puzzle from my own experience as a practitioner and a scholar. In the early 1980s, I was a member of the Permanent Delegation of Canada to the OECD. Among my areas of responsibility was the Joint Working Party of the Agriculture and Trade Committees. Years later, when I became an academic, the issues I worked on at the OECD became the subject of a book on agriculture, but the focus was the Uruguay Round of General Agreement on Tariffs and Trade (GATT) negotiations not the OECD. Three decades after I first followed the Fisheries Committee, the OECD is still an important source of data on government support to fishers, and of analysis on fisheries policy generally,1 yet when states decided that disciplines on fisheries subsidies were essential, the issue was included as part of the Doha Round of negotiations at the World Trade Organization (WTO).2 Here is the puzzle: Why do states prefer to negotiate new trade rules at the WTO even on issues where the OECD has considerable expertise? The broader membership of the WTO is only part of the answer, and the illusory distinction between law that is supposedly soft and that which is hard is no help at all. Where the preambles of the GATT and the WTO agreements speak of a desire to enter into and mutually advantageous arrangements,3 Article 1 of the OECD Convention says that the organization shall promote policies designed to achieve the highest sustainable economic growth and employment and a rising standard of living in member countries.4 No Acts of the OECD pertain to trade.5 The OECD has no regulatory responsibility, and no regulatory instruments within its control. Many OECD obligations are merely guidelines, and their legal force is problematic.6 In Canada, OECD obligations rarely even require Cabinet, let alone parliamentary, approval.7 OECD commitments are not enforceable in the usual sense because the OECD has nothing approaching a dispute settlement system.8 And yet it would be a mistake to think that the OECD has not helped to shape the framework of international trade law. Imagine the evolution of trade law on a continuum, from practices arising in the continuous interaction among economic actors, to efforts by governments to understand the policy implications of those interactions, to the codification of such practices in written agreements. The OECD contribution falls in the middle, where it provides a forum for the social learning that is essential to the development of consensual understanding. When well-understood issues are ripe for binding reciprocal obligations, backed up by formal surveillance and compulsory adjudication of disputes, then the WTO will have comparative advantage over the OECD. Unraveling the puzzle about the relation between OECD and WTO work on the same issues requires consideration first of social learning about law, and second of the history of OECD work on trade. The first part of this Article will discuss how shared understanding of cause and effect relations in a domain contributes to the development of consensual understanding. The second part of this Article will demonstrate the process at work in the contribution of the OECD to the success of the Uruguay Round in the GATT. The concluding section of this Article uses this analytic framework and history to speculate on the OECD's likely contribution to the evolution of twenty-first century trade law. THE NORMATIVE FORCE OF OECD IDEAS By declining to take refuge in the hard law/soft law distinction, I have set myself a tough challenge. Hard law is usually defined as enforceable rules with precise codification and a tough dispute system. 9 Soft law usually means indicative standards of conduct like the OECD Guidelines on Multinational Enterprises (MNE). …

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