Executive-Branch Rulemaking and Dispute Settlement in the World Trade Organization: A Proposal To Increase Public Participation

This Note argues that, because the Executive Branch increasingly will be promulgating domestic regulatory rules intended to comply with the rules of the world-trading system, it is necessary to increase formal oversight of the Executive Branch’s role in that context. Part I argues that the United States’ participation in the WTO implies a substantial increase in the impact of foreign policy on domestic policy. Part II points out a loophole in Congress’s attempt to compensate for this increase by installing various devices to ensure political oversight of the Executive: the Executive Branch is subject, under the Uruguay Round Agreements Act (URAA), to formal oversight during the WTO dispute-settlement process only in connection with adjudicated settlements, not in connection with negotiated settlements. Part III proposes that Congress expand the application of provisions of the Trade Act of 1974 that currently require the U.S. Trade Representative to consult private-sector representatives representing both trade and nontrade interests while negotiating settlements. This Part also argues that Congress should extend the URAA procedures currently applicable to rulemaking pursuant to adjudicated settlements to rulemaking pursuant to negotiated settlements.