This Article is written by Anjali Dombe. This article discusses how, in this piece, it is demonstrated that the weakening of the multilateral trading system is not a
violation of primary rules but a failure in secondary ones. With the rise of a multipolar world
order, substantive obligations of the WTO, and the MFN principle in particular, have
remained unchanged in their wording. Problems emerge in the context of adjudication,
consensual legislation, and institutional monitoring. Through the example of the paralysis of
the Appellate Body, the off-loading of rule-making to plurilateral bodies, and the soft law of
the BRI, it is shown that powerful states resort to legal instruments that can be subjected to
minimal scrutiny. The conclusion is drawn that international economic law becomes
increasingly relational rather than general, and that three reforms would restore
the ability to implement existing rules.
I. Introduction
The decline of the World Trade Organization (WTO) is usually told as a story about rules being broken. This article argues that the more significant story concerns what is being lost around the rules. In Hart’s account, a legal system joins primary rules of obligation to secondary rules of recognition, change, and adjudication. In today’s multipolar order, the WTO’s primary rules remain textually intact, but its secondary rules are failing. Scholarship generally treats unilateral tariffs, plurilateral clubs, and China’s Belt and Road Initiative (BRI) as separate problems.
The gap this article addresses is their joint effect on the structure of international law, and on the geopolitics that structure was meant to discipline.
The figures show the divergence. In 2025, the WTO Secretariat indicated that more than eighty percent of the global imports of world merchandise took place under the most-favored-nation (MFN) provisions. In March 2026, economists at the Peterson Institute estimated that only about 10% of U.S. imports were traded under MFN. The International Monetary Fund describes this process as geoeconomic fragmentation, or policy-induced disintegration. Even the WTO is warning that the lack of reform may lead to a loss of up to ten percent of global GDP by 2050.
II. The Failure of Adjudication
The Dispute Settlement Understanding promised binding, appealable rulings. Since December 2019, the Appellate Body has been unable to function because appointments are blocked, so a losing party can appeal ‘into the void’ and avoid adoption of the panel report. This matters most for security measures. In Russia -Traffic in Transit, the panel rejected the view that Article XXI of the GATT is wholly self-judging.In US -Steel and Aluminium, a panel found that United States Section 232 tariffs were not justified under Article XXI(b)(iii). The jurisprudence has therefore developed, but there is no compulsion behind it.
The response has been to convert adjudication into a club. The Multi-Party Interim Appeal Arbitration Arrangement (MPIA) gives participating Members an appellate substitute, but only among themselves. Disputes are therefore settled where the parties consent and are left unresolved where the powerful do not.
Domestic law has partly filled the vacuum. In Learning Resources, Inc v Trump, the United States Supreme Court held that the International Emergency Economic Powers Act does not authorise the President to impose tariffs. Within days, a ten per cent surcharge was imposed under a different statute. The effective check came from constitutional law, not from WTO law, which suggests that in a multipolar order the most reliable constraints on the powerful may be borrowed from inside their own legal systems.
III. Plurilateralism and the Problem of Recognition
Plurilateral agreements can enter the WTO only through Annex 4, and only by consensus. Consensus protects Members from being bound without consent, but it also blocks accommodation of willing majorities. The Investment Facilitation for Development Agreement shows the result. More than 120 Members have joined, yet incorporation remains blocked by a small number of objectors, India among them, who contest the mandate for the subject. By contrast, in March 2026 sixty-six Members adopted interim arrangements to bring the Agreement on Electronic Commerce into force, while the wider fourteenth Ministerial Conference closed without an overall declaration. Rule-making is moving to where consensus is not required.
The scholarly dispute is well known. Kelsey argues that Joint Statement Initiatives lack legal legitimacy and set a precedent for rule-making by self-selecting groups. Hoekman and Mavroidis respond that the realistic alternative is not multilateral agreement but discriminatory clubs outside the WTO, which would leave non-participating developing countries worse off. Both positions assume that the question is whether plurilateralism is legitimate. I suggest that the real question is one of recognition. The WTO has no rule for telling apart a club that is open to accession and extends its benefits on an MFN basis from one that is neither. Until such a rule exists, every plurilateral initiative must be judged on political trust rather than legal criteria, and trust is scarce in a multipolar system.
IV. Legal Form Follows Alignment
The BRI shows the same logic in a different register. It has more than 150 participants, yet there is no specific Belt and Road law. Memoranda of understanding and partnership
declarations carry the arrangement, and Wang characterises it by minimal legalisation and a hub-and-spoke structure. A concessional loan or a port concession is not a customs duty or a rule of importation, so it never engages Article I:1 of the GATT, even though the provision reaches discrimination in fact as well as in law. The advantage is real, but the forum that could test it is not engaged.
When viewed as a whole, the above-mentioned changes illustrate a certain tendency. States with great powers tend to select that type of law that is most difficult to subject to scrutiny – security exceptions which cannot be adjudicated, club law which does not depend on consensus, and soft law which is not a treaty obligation. The form selected depends on political affiliations. It is the kind of fragmentation that differs significantly from the one considered by the International Law Commission, which saw in diversification mostly a conflict of laws and institutions to be managed by the general law.
V. Consequences for International Law and Geopolitics
Three consequences follow. First, law-making is shifting from consensus to coalition. Treaties bind only participants, so the universal legal baseline is thinning, and the practice of MFN treatment is diverging among the largest importers.
Second, adjudication is becoming optional. A rule whose application cannot be compelled risks becoming a standard of conduct rather than an obligation. The UK Trade Policy Observatory’s observation that divergent readings of cornerstone rules such as MFN impeded progress at the fourteenth Ministerial Conference illustrates the point.
Third, the geopolitical cost is distributed unevenly. Small and developing economies have the most to lose from a system in which advantage is negotiated among blocs and not claimed as of right, since they lack the leverage to bargain in clubs and the standing to litigate in a paralysed forum. The legal consequence is an international economic law that is increasingly relational, dependent on who the parties are, and less general.
VI. Conclusion
Multipolarity does not abolish international trade law. It strips away the secondary rules that make trade law law. Three modest reforms follow from this diagnosis. Members should restore binding adjudication. They should replace consensus in Annex 4 with a qualified majority for agreements that are open to accession and extend their benefits on an MFN basis. And they should introduce automatic notification of preferential arrangements, including a transparency-only reporting duty for connectivity instruments. None of these requires amending Article I:1. Each restores the capacity to apply it.
