Rethinking Trade Law in an Era of Trump and Brexit

Abstract

International trade and economic globalization are in crisis. In the U.S. and elsewhere, current regimes like NAFTA and the EU, and trade deals like the TTIP and the TPP, have become targets for the political backlash against trade and its larger context, economic globalization. Brexit and the 2016 U.S. election remind us that many feel betrayed by current trade policies, that free trade is being imposed on them at their cost but for others’ benefit.

At the heart of this crisis, however, there are as always opportunities. First, we have an opportunity to return to trade’s roots in consent. Trade is nothing more or less than the economic bargains we agree to, and the rules we agree on to protect, support and facilitate these bargains. However, by this standard much of what passes today for trade is not really trade at all but something else: coercion, exploitation, or worse. Second, we have an opportunity to look below the surface of contemporary events, where deeper underlying trends point towards the early days of a larger, more inclusive set of socioeconomic relationships we can call global market society.

These two lines of investigation themselves converge into the present inquiry: what kind of trade regulation does a global market society need in order to flourish? How is that different from conventional, contemporary “trade” agreements? And how do we support the most vulnerable workers and others marginalized by economic globalization in the process of collectively pursuing these economic and social opportunities? If the heart of trade is consensual economic exchange, then this has ramifications throughout the entire social framework we use to recognize, support, protect and facilitate consensual economic exchanges.