The principle of transparency as an instructive and normative beacon of the multilateral trade regime: in search of a systematic response to the crisis of internal and external legitimacy of the World Trade Organization

• Ano de defesa: 2021
• Autor(a) principal: Maia, Clarita Costa
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: eng
• Instituição de defesa: Biblioteca Digitais de Teses e Dissertações da USP
• Palavras-chave em Português: Accountability; Administrative transparency; Boa-fé; Comércio internacional; Constitutionalism; Democratic deficit; Devido processo legal; Direito à informação; Direito Comercial Internacional; Due process; Due process as a principle of WTO Law; External transparency; First generation shortcomings; Fontes do Direito; General principles of International Law; General principles of Law; Global Administrative Law; Good administration of Justice; Good faith; Information or right-to-know transparency; Institutional managerialism; Internal transparency; International Law; International relations; Judicial norm generation; Legitimacy; Legitimatory problem of international adjudication; Notification and surveillance; Organização Mundial do Comércio (OMC); Political Sciences; Princípio da publicidade; Relações internacionais; Rights-based constitutionalism; Sources of Law and sources of International Law; The three generations of transparency in the WTO; Transparency
• Link de acesso: https://www.teses.usp.br/teses/disponiveis/2/2135/tde-15082022-112714/

The thesis examines transparency as a general principle of law and as a general principle of law of the World Trade Organization (WTO). Despite the spread of transparency rules in different national legal systems and the existence of several similar legal provisions in the texts of the WTO agreements, the literature questions the status of transparency as an international custom. However, using the theoretical framework of Umberto Ávila, this author maintains that transparency is a principle of WTO law, as well as a postulate. As a principle, transparency aims at promoting an ideal state of affairs (immediate duty), through the adoption of ecessary conducts (mediate duty) and defined by the specific case. This ideal state of affairs, within the scope of the WTO, is the \"communicative transparency\", hold by the second and third generations of WTO transparency rules. Communicative transparency engenders not only legitimacy, but also coherence, consistency and convergence of national rules in relation to the WTO legal regime. This ensures its integrity. Due to this effect, transparency is also a hermeneutical postulate, as it instrumentalizes another postulate, of the same nature, which is the coherence of the legal system, or, in the specific case, of the international trade regime. It is also a non-specific postulate, as it establishes a structural duty, a general idea devoid of application guides. This unspecific postulate assists the specific postulate of reasonableness. To get to this point, the thesis historically deals with the concept of transparency in Political Science, International Relations and Law, since the emergence of the seminal idea of ritualistic, reaching the concept of rule of law, moving on to the historical evolution of the concept of sources of law, and, in it, to the emergence of the idea of a general principle of law, based on the general concepts of equity and justice. The thesis adopts the perspective of legal history and, as categories, the radial categories or concepts, by which a concept, in the human sciences, presents maximum and minimum expressions. In the chapter that refers to transparency in international law, the argument begins with the analysis of legitimacy, which is one of the fundamental elements of its legal normativity. It analyzes the democratic deficit in international organizations as an element of lack of legitimacy and, therefore, of the integrity of international regimes. Transits to the analysis of global administrative law and the aspects of constitutionalist thinking in the multilateral trade regime, always in search of a legal-political engineering that overcomes the democratic deficit. It proceeds with the analysis of adjudicatory transparency and begins to analyze the internal, external and administrative transparency of the WTO as a non-revolutionary or reformist institutional response, with high constructivist potential. In the WTO jurisprudential analysis, the thesis reinforces the idea of the evolution to the radial maximum of the principle of transparency and, although recognizing practical difficulties in the execution of several specific notification duties, as well as noting a certain regularity (without significant increases or decreases) of the number of cases with the Dispute Settlement Body (DSB) challenging legal transparency provisions, this author understands that transparency is an ideal state of affairs pursued by extensive interpretations of the scope of the provisions, also guaranteed by the intense work of notifications, which, in spite of its shortcomings, has proved useful for the advancement of the rule of law in the WTO and for the cohesion and integrity of the system.