The Social Constitutionalization of Trade? the WTO-Trips and the Chances of a Reembedment of the Global Regime of Intellectual Property

Since the financial crisis, the consciousness has grown that increasing social inequalities can have impairing implications for the functioning of institutions and for economic efficiency. Nevertheless, the tools that were known until now to tackle inequalities still seem to be ineffective on the transnational level. Mechanisms of tax & transfer, as well as the promotion of social rights, cannot be used in the same way as they had been in national contexts. For many scholars, the only way to face these problems would be a shift towards the transnationalization of social rights. Although much talk has been seen on the necessity of “constitutionalizing” the WTO, the fact remains true that the global regime of trade remains highly fragmented. Moreover, the rules of the many regimes existing in the WTO do not seem to be interpreted under the light of the so called “global regimes of human rights”. Rather, it seems that they reproduce extremely specialized vocabularies, each of them taking for granted specific conceptions of how to balance property and social rights. As some authors argue, if it is true that the highly specialized global regimes of governance operate in close relation to economic knowledge, maybe they could develop some sort of “responsivity” to their non economic social environment on which they depend. In the present paper, by carefully analyzing 34 decisions of WTO dispute settlements regarding the Agreement on Trade-Related Aspects of Intellectual Property Rights, I try to assess the extent to which it is possible to identify in this regime internal elements of the constitutional semantics of social rights or possible functional equivalents of it. Hence, I will assert whether it makes sense to have any hope on transnational constitutionalization processes of trade carried out exclusively by the legal and functional mechanisms of economic global governance.