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THE NEW GLOBAL TRADING ORDER
The international institutions that have governed global trade since the end of World
War II have lost their effectiveness, and global trade governance is fractured. The
need for new institutions is obvious, and yet, few proposals seem to be on offer. The
key to understanding the global trading order lies in uncovering the relationship
between trade and the State, and how the inner constitution of Statecraft drives the
architecture of the global order and requires structural changes as the State traverses
successive cycles. The current trade order, focused on the liberalization of trade in
goods and services and the management of related issues, is predicated on policies
and practices that were the product of a global trading order of the twentieth-century
modern nation-states. Today, a new form of the State – the post-modern State – is
evolving. In this book, the authors propose a new trade norm – the enablement of
global economic opportunity – and a new institution – the Trade Council – to overhaul
the global trading order.

Dennis Patterson is Board of Governors Professor of Law and Philosophy at Rutgers

University School of Law (Camden) and Professor of Jurisprudence and Interna-
tional Trade at Swansea University, UK. His previous work includes Law and Truth
(1996), the Blackwell Companion to Philosophy of Law and Legal Theory (1996), and
numerous articles in a wide variety of academic journals, including the Oxford Jour-
nal of Legal Studies, Columbia Law Review, Texas Law Review, and The Modern Law
Review.

Ari Afilalo is Associate Professor of Law at Rutgers University School of Law

(Camden). His work has appeared in the New York University Journal of Interna-
tional Law and Politics, The Chicago Journal of International Law, Northwestern Inter-
national Law and Business Journal, Georgetown International Environmental Law
Review, and the European Journal of International Law.
The New Global Trading Order
The Evolving State and
the Future of Trade

Dennis Patterson
Rutgers University
Swansea University, Wales, UK

Ari Afilalo
Rutgers University
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521875189
© Dennis M. Patterson and Ari Afilalo 2008

This publication is in copyright. Subject to statutory exception and to the

provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2008

ISBN-13 978-0-511-47877-2 eBook (EBL)

ISBN-13 978-0-521-87518-9 hardback

Cambridge University Press has no responsibility for the persistence or accuracy

of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Dennis dedicates this book to Barbara, Sarah, and
Graham.

Ari dedicates it to his mother, Suzanne Afilalo,

and to the memory of his father, Moshe Afilalo.
Contents

Preface page ix

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2 The Evolving State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3 The Changing Nature of Welfare . . . . . . . . . . . . . . . . . . . . . . . . 41

4 Disaster and Redemption: 1930s and Bretton Woods . . . . . . . . 67

5 The Transformation of the Bretton Woods World and

the Rise of a New Economic Order . . . . . . . . . . . . . . . . . . . . . . 81

6 The End of Bretton Woods and the Beginning of a

New Global Trading Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

7 The Enablement of Global Economic Opportunity . . . . . . . . . 147

8 Trade and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Notes 209
Bibliography 239
Index 265

vii
Preface

In the winter of 2006, we published an article in the Chicago Journal of

International Law with the title “Statecraft, Trade and the Order of States.”
In that short piece, we developed an outline of the argument of this book.
During the nearly two years that elapsed since completion of that article,
we worked on a book-length version of the argument. As we were com-
pleting the manuscript during the spring of 2007, The Atlantic Council of
the United States published a Policy Paper with the title “Transatlantic
Leadership for a New Global Economy.”1 We were pleasantly surprised to
find that the authors of this paper – important personages from the aca-
demic, business, and political worlds – validated virtually every aspect of
the analysis we had advanced in our article published more than a year
earlier. While agreeing with our claims regarding the current state of the
institutions of global trade, the solutions advanced by this august body
were rather different from our own.
This book is the story of the rise and fall of the institutions of the
modern global trading order (the “Bretton Woods Order”). We share the
view that the current crisis in the institutions of world trade poses great
dangers for global order and must be addressed with deliberate speed.
We come to the table with ideas and concrete proposals. We believe that
no understanding of the questions posed by global trade can be resolved
without at least an in-depth understanding of the reasons these institu-
tions did as well as they did for so long and what has rendered them
ineffective. In this book, we answer both of these questions.
In addition to explaining the rise and fall of the Bretton Woods Order,
we advance concrete, detailed proposals for a new institution, one that
will complement the unfinished work of the WTO. This new institution –
the Trade Council – will be smaller, nimbler, regional, and ad hoc. The need
for new institutions of trade is obvious to many. What remains elusive is
identifying the appropriate type and character of institution needed. We

ix
x Preface

believe that the answer to this important question lies in the nature of
what we identify as “Statecraft” and its relationship to the global trading
order.
This book is written for all with an interest in the politics of trade and
global order. As you will see, we consider the strategic relations of states
to be an integral feature of the understanding of the global trading order.
This wider perspective on trade and the problem of global order makes
for a richer and more complicated narrative than one usually encounters
in discussions of global trade. In our view, this richer narrative yields
insights not otherwise available, thereby enriching the discussion and
engendering a deeper understanding of the challenges posed by trade
and global order in the twenty-first century.
We wish to thank the Dean of Rutgers Camden Law School, Rayman
Solomon, for his unstinting support for this project. Through measures
large and small, Ray has always been a source of encouragement for this
project. We could not have completed our work without his support.
The library staff at Rutgers Camden – especially Lori Rowland and
Gloria Chao – have helped us with countless resource requests. Their
timely and efficient work has been invaluable.
Our research assistants – Hanna Belopolsky, Justine Kasznica, Lau-
ren Keating, Lori Moore, Juli Schwartz, Carrie Wintersford, and Rachel
Weidler – were industrious and dedicated in their efforts on this book. We
are grateful to them all.
Fran Brigandi has been the finest secretary we have ever had. Her
work on this book has been of immeasurable value. Fran prevented
the commission of countless errors and was the keeper of the bibliog-
raphy from the beginning. Words cannot express our gratitude for her
dedication.
The idea for this book was first presented at a conference on global
trade at Bar Ilan University in Ramat Gan, Israel. We learned much
from that initial presentation, as we did from subsequent presentations at
Brooklyn Law School (thanks to Claire Kelly), Boston University School
of Law (thanks to Pnina Lahav), and Columbia University Law School.
On the manuscript we have received helpful comments from Stuart
Macdonald, Daniela Caruso, Jeff Dunoff, Claire Kelly, Patrick Kelly, and
the participants at the Delaware Valley International Law Day and the
Rutgers-Camden law faculty seminars.
We especially thank Philip Bobbitt for continuing conversation on the
issues of trade and the State. We have learned much from Philip’s work
and we are indebted to him for helping us see the big picture on so many
issues.
John Berger, our editor an Cambridge University Press, has been a
patient and very helpful friend to us. We are indebted to him.
Preface xi

Dennis especially thanks Barbara, Graham, and Sarah for their sup-
port as he worked on this book for what seemed an eternity. Thanks also
to Iwan Davies, Head of School of Law at Swansea University, Wales,
for providing a supportive environment during the final editing of the
manuscript of this book.
Ari is especially indebted to Hanna Belopolsky for going beyond the
call of duty in her research assistance. He is deeply grateful to Rafael
Lopez-Cambil for sharing his unique insights, derived from an extraordi-
nary life, into today’s world and global markets. His love and thanks go
to Inna and Maya for inspiration and empowerment.
The order of the names of the authors bears no relationship to their
respective contributions to the project. In every sense of the word, this
book is a collaborative effort.

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