From a draft paper by Richard Stewart of NYU Law School, entitled "THE WORLD TRADE ORGANIZATION: MULTIPLE DIMENSIONS OF GLOBAL ADMINISTRATIVE LAW":
The WTO imposes extensive GAL requirements of transparency, participation, reason giving and review on decision making by members’ domestic administrative bodies in order to ensure even-handed treatment of domestic and foreign private economic actors and prevent disguised protectionism. These requirements constitute what is probably the most highly developed and profoundly transformative administrative law program of any global regime. Due to the clarity and strength of these requirements, the WTO’s near-universal membership, and its compulsory dispute resolution mechanisms, the WTO has played a key role in the emergence of global administrative law in multilevel governance.
The seminal source of this development is Article X of GATT 1947, which remained unchanged in GATT 1994.44 This provision basically requires the rule of law in trade regulation: transparency of trade measures, uniform and impartial administration, and review. Interestingly, it was originally proposed by the US Government and drew clear inspiration from the 1946 U.S. Administrative Procedure Act. There are few better examples of the “administrative law turn” in WTO disciplines than the marked shift in Article X practice and jurisprudence before and after the creation of the WTO in 1994. Before 1994, the few panel decisions involving Article X explicitly regarded it as “subsidiary” to the other “substantive” provisions of the GATT agreement.45 In the decade and a half since the inception of the WTO, violations of Article X have been claimed in no fewer than twenty disputes, and no longer are they proposed or treated as subsidiary considerations. Further, almost all of the new WTO agreements contain either a reference to Article X or, more usually, their own version of its requirements, often with detailed provisions for domestic administrative decision making. Extensive GAL requirements are, for example, found in the GATS, 46 SPS,47 TBT48 and TRIPS49 agreements. These developments comport with the development of a regulation-oriented global trade regime that looks to the expectations of market actors. Moreover, the many GAL requirements can in practice operate to the benefit of local citizens as well as foreign nations and economic actors.
What he describes certainly looks like administrative law. This raises the following questions for me: Is this administrative law for its own sake, or is it using the principles of administrative law to get at issues such as non-discrimination? And does this distinction matter?
