Dani Rodrik has a new paper up at NBER, entitled "Putting Global Governance In Its Place." Two things jumped out at me.
First, it surprised me that in discussing when regulatory standards are protectionist, he seems unaware of the national treatment principle:
Unlike in the case of tariffs and quotas, there is no natural benchmark that readily allows us to judge whether a regulatory standard is excessive or protectionist. Different national assessments of risk – safety, environmental, health -- and varying conceptions of how business should relate to its stakeholders – employees, suppliers, consumers, local communities – produce different standards, none obviously superior to others. In other words, regulatory standards are public goods over which different nations have different preferences. An optimal global governance scheme would trade off the benefits of expanding market integration (by reducing regulatory diversity) against the costs of excessive harmonization. But it is difficult to know where that optimal point may lie. Asking trade negotiators do perform this task adequately across a wide variety of policy domains seems unrealistic.
In reality, we have decades of experience with examining whether regulatory standards are protectionist ("excessive" is more difficult to judge, but we do that as well, as shown in the second point below). Among others, we have GATT Article III:4, TBT Agreement Article 2.1, and various SPS Agreement provisions. There is extensive jurisprudence on these provisions and plenty of "benchmarks," which feel pretty "natural" to me. There is no consensus, of course, but it's law so there will never be a consensus. Personally, I still like "design, structure, and architecture" as the standard, but there are a number of options, most of which get you to roughly the same point.
Second, based on the title and some of his criticisms, I thought his main argument would be that global governance has gone too far and needs to be reined in. But then he says this:
We can usefully distinguish DEGG [Democracy-enhancing global economic governance] from “globalization-enhancing global governance” (GEGG), which comes closer to the spirit of prevailing practice in the world economy today. Under GEGG we can justify any and all external rules that restrict domestic policy autonomy if the result is to minimize transactions costs associated with national borders. Under DEGG we would imposes only those, mostly procedural, obligations that enhance domestic deliberation or are consistent with democratic delegation.
I have in mind procedural requirements designed to enhance the quality of domestic policy making. Examples of such requirements would be global disciplines pertaining to transparency, broad representation of stakeholders, accountability, and use of scientific/economic evidence in domestic proceedings. These procedural requirements would not prejudge what the end result might be – whether a country might impose a tariff, subsidy or any other “beggar thyself” policy.
On its face, "global disciplines pertaining to transparency, broad representation of stakeholders, accountability, and use of scientific/economic evidence in domestic proceedings" seems very intrusive into domestic policy-making, which is something I thought he was concerned with. I'd want to hear some clarification from him about what exactly he has in mind here, but I can see how it could lead to a wide range of new legal claims against domestic policies. (And it also seems like this proposal contradicts his earlier critique: One way to determine if standards are "excessive" is to review whether they are based on scientific evidence.)