The Trials of Winning at the WTO: What Lies Behind Brazil's Success

Abstract

This Article aims to advance our understanding of three sets of interrelated questions: who shapes international trade law through litigation and bargaining; how do they do so; and what broader effects do international trade law and judicialization have within a country. The Article builds from four years of empirical investigation of international trade dispute settlement and its impact in Brazil. Its point of entry is an examination of what lies behind Brazil's use of the legal regime of the World Trade Organization (WTO), including in litigation, negotiations and ad hoc bargaining. We assess how the WTO legal regime has affected Brazil's national administration and Brazilian government-business-civil society relations regarding international trade policy and dispute settlement. In turn, we depict the strategies that Brazilian public and private actors have adopted to deploy and shape this very international legal process. We thus aim to show how these national and international processes are reciprocally and dynamically interrelated. We conclude by drawing out seven findings from our study. We address, in particular, how international trade law and judicialization can unleash a competition for expertise which transforms a government's relation with business and civil society over international trade policy. We contend that the process of catalyzing change within a country is not automatic, but depends on key domestic factors as variables. We find that the resulting dynamic can strengthen the state's ability to engage effectively at the international level. We find that the best interpretation of what lies behind Brazil's success is the rise of pluralist interaction between the private sector, civil society and the government on trade matters. This public-private exchange is spurred by the institutionalization of a more legalized and judicialized system for international trade relations in the broader context of Brazilian democratization and global economic integration. As WTO institutions have developed, individuals and groups in Brazil have responded by investing in expertise to take advantage of the opportunities offered and to defend against the challenges posed. The resulting public-private partnerships have significantly enhanced Brazil's ability to advance its interests in international trade negotiations and dispute settlement, and, in the process, have an impact on the WTO regime.

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