WTO 협정상 ‘자기판단조항’의 법경제학적 분석과 개선방안 모색

Economic Analysis on Self-judging Clauses of WTO Agreements and its Legal Implications

The VCLT Article 26 stipulates that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’. It is, however, an ideal approach to rely only upon good faith and trust of Contracting parties in securing bona fide implementation of treaties, especially when they are lawfully allowed to invoke self-judging clauses to evade treaty obligations. Therefore, in tackling the structural issue on striking a balance between sovereign power inherent within self-judging clauses and possible abuses of such provisions, economic analysis would be useful for the betterment of treaties as it can analyze the economic and political incentives of Contracting parties. In order to come up with legal implications for WTO Agreements from the economic analysis on self-judging clauses, this paper reviews as followed. First, this paper employs the game theory in order to analyze intrinsic economic and political incentives of WTO members in complying with WTO Agreements. By introducing the Prisoner’s dilemma game, the paper reviews the strategy of each player and, in turn, yield the equilibrium of the game. In doing so, this paper comes up with economic solutions including designing repeated game, leadership of leading player, and introduction of penalties and rewards mechanism. Second, this paper examines possible solutions for the betterment of self-judging clauses under WTO Agreements based on the economic analysis. In order to secure the rule of law principle, this paper particularly concentrates on reviewing legal and institutional solutions from both treaty-revision perspective and judicial review perspective. In considering possible solutions, this paper looks into non-judicial solutions such as notification requirements and self-help remedies as well.