In the context ofglobalization and the subsequent proliferation offree trade agreements (FTAs), legal scholars generally refer to the political strategy used by asovereign state to leverage atrade agreement's substantive rules to counter behavior it deems unreasonable by its trading partners, asaggressive legalism.[1][2][3][4][5][6]
FollowingWorld War II and theBretton Woods Conference, theUnited States and theAllied Powers designed a new world economic order, partially emphasizing greater cooperative trade relationships. With the adoption of theGeneral Agreement on Tariffs and Trade (GATT) in 1946 and via its replacement by theWorld Trade Organization (WTO) in 1995, these countries developed a comprehensive legal framework, that reflected their common legal traditions, to facilitate these relationships, including a system to settle disputes that favored litigation.[7][8]
Somewhat underGATT in the 1950s but specifically with the adoption of theWTO, these countries engaged increased trade withAsian countries, as they became signatories.[8] Initially, while theU.S. and theAllied Powers leveraged the agreement's respective legal frameworks and dispute-mechanisms including litigation to deal with disputes with their trading partners, manyAsian countries choose not to.[8] Instead, they avoided legal confrontation, in favor of bilateral negotiations to arrive at a settlement. Social-cultural disparities between each, concerning an inclination to litigate, are likely indicative of why.[7][8]
However, in the 1980s and 1990s, under bothGATT andWTO, manyAsian countries began to utilize their legal frameworks to settle disputes.[8]
In 2001, inAggressive Legalism: The Rules of the WTO and Japan’s Emerging Trade Strategy, Saadia M. Pekkanen described the increasing tendency of theJapanese government's use of theWorld Trade Organization's (WTO) dispute settlement protocols to counter adverse acts by its trading partners as aggressive legalism. Aggressive legalism, she argued is “a conscious strategy where a substantive set of international legal rules can be made to serve as both ‘shield’ and ‘sword’ in trade disputes among sovereign states.”[7][8]
In a policy primer for theUnited States Government, The Policymaker's Library wrote that theUnited States' influence with itsAsian trading partners has waned and that an "emphasis on aggressive legalism" affords opportunities to reshape economic relationships going forward.[9]
TheKorea–US Free Trade Agreement (KORUS), reflects a political strategy by both theUnited States andSouth Korea of aggressive legalism. That is, both countries agreed to envelope in the agreement binding legal rules to deal with lingeringbilateral trade disputes.[1][10]
Following the succession ofGATT with theWTO in the 1980s and 1990s, manyAsian countries, includingChina,[11][12][13]Japan,[14] andSouth Korea,[1][2][3][4] shifted to a policy of aggressive legalism, evidenced by each's willingness to use the legal frameworks provided under both to directly engagebilateral trading disputes with their partners.[1][2][3][4][15][16]
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