In the context of

globalization Globalization, or globalisation (English in the Commonwealth of Nations, Commonwealth English; American and British English spelling differences#-ise, -ize (-isation, -ization), see spelling differences), is the process of foreign relation ...

and the subsequent proliferation of free trade agreements (FTAs), legal scholars generally refer to the political strategy used by a

sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined te ...

to leverage a trade agreement's substantive rules to counter behavior it deems unreasonable by its trading partners, as aggressive legalism.

Development of aggressive legalism

Following

World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposing ...

and the

Bretton Woods Conference The Bretton Woods Conference, formally known as the United Nations Monetary and Financial Conference, was the gathering of 730 delegates from all 44 Allied nations at the Mount Washington Hotel, situated in Bretton Woods, New Hampshire, Unite ...

, the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...

and the Allied Powers designed a new world economic order, partially emphasizing greater cooperative trade relationships. With the adoption of the General Agreement on Tariffs and Trade (GATT) in 1946 and via its replacement by the

World Trade Organization The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation in the United Nations System, governments use the organization to establish, revise, and ...

(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. Somewhat under

GATT The General Agreement on Tariffs and Trade (GATT) is a legal agreement between many countries, whose overall purpose was to promote international trade by reducing or eliminating trade barriers such as tariffs or quotas. According to its prea ...

in the 1950s but specifically with the adoption of the WTO, these countries engaged increased trade with

Asia Asia (, ) is one of the world's most notable geographical regions, which is either considered a continent in its own right or a subcontinent of Eurasia, which shares the continental landmass of Afro-Eurasia with Africa. Asia covers an are ...

n countries, as they became signatories. Initially, while the

U.S. The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...

and the Allied Powers leveraged the agreement's respective legal frameworks and dispute-mechanisms including litigation to deal with disputes with their trading partners, many

n countries choose not to. 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. However, in the 1980s and 1990s, under both

and WTO, many

n countries began to utilize their legal frameworks to settle disputes. In 2001, in ''Aggressive Legalism: The Rules of the WTO and Japan’s Emerging Trade Strategy'', Saadia M. Pekkanen described the increasing tendency of the Japanese government's use of the

'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.”

Modern aggressive legalism

In a policy primer for the

United States Government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a feder ...

, The Policymaker's Library wrote that the

' influence with its

n trading partners has waned and that an "emphasis on aggressive legalism" affords opportunities to reshape economic relationships going forward.

United States

The Korea–US Free Trade Agreement (KORUS), reflects a political strategy by both the

and

South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korean Peninsula and sharing a land border with North Korea. Its western border is formed by the Yellow Sea, while its eas ...

of aggressive legalism. That is, both countries agreed to envelope in the agreement binding legal rules to deal with lingering bilateral trade disputes.

Asia

Following the succession of

with the WTO in the 1980s and 1990s, many

n countries, including China, Japan, and

, shifted to a policy of aggressive legalism, evidenced by each's willingness to use the legal frameworks provided under both to directly engage bilateral trading disputes with their partners.

References

{{DEFAULTSORT:Aggressive Legalism Theories of law Sociology of law Philosophy of law Trade blocs Political philosophy