UNIVERSITY OF SOUTH AFRICA
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MIL5902: International Trade and Investment Law
Assignment 2 | 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MIL5902
Module Code:
International Trade and Investment Law
Module Name:
Legal Reasoning and Transnational Legal
Essay Topics: Orders in International Trade Law; Rene-
gotiation and Adaptation of International
Investment Contracts
Assignment 2
Assignment Number:
September 2026
Due Date:
Submitted in partial fulfilment of the requirements for In-
ternational Trade and Investment Law, UNISA 2026
, UNISA | MIL5902 Legal Reasoning, Transnational Orders & Investment Contracts
Question 1: Legal Reasoning, Transnational Legal Orders and the International Law of
Trade
The development of international trade law owes a great deal to methods of legal reasoning
that do not fit comfortably within the traditional, state-centred model of international law-
making by treaty and custom.1 Both the adjudicative practice of the WTO Appellate Body
and the transnational commercial and financial legal order described by Dalhuisen illustrate
legal orders that are manifested, applied and legitimised through reasoning practices that
transcend the classical state-based paradigm, even though they remain, in different ways,
tethered to it.2 This section critically evaluates that claim by analysing legal reasoning in
international trade law, examining the emergence of transnational legal orders, and assessing
the legitimacy of such orders in the absence of a central law-making authority.
1.1 Legal reasoning in international trade law
Behboodi’s study of the WTO Appellate Body’s first steps argues that the legitimacy of an
international adjudicative body without a hierarchical superior depends less on formal pedi-
gree than on the quality and consistency of its reasoning.3 He situates the Appellate Body
within an “interpretive community” whose authority is built through predictability and security
in decision-making, so that reasoned justification substitutes for the coercive backing that
domestic courts derive from the state.4 On this view, the Appellate Body’s early jurisprudence
functioned as a form of common-law-style reasoning by analogy and precedent, notwith-
standing that WTO law formally rejects a strict doctrine of binding precedent, because parties,
panels and the Appellate Body itself needed a stable basis on which to predict how ambigu-
ous treaty terms would be applied.5 This is significant because it shows international trade
law developing an internal reasoning discipline that resembles adjudicative reasoning in na-
tional legal systems, while operating in a horizontal system of formally equal, sovereign treaty
parties rather than a vertical hierarchy of courts.6 Behboodi thus treats legal reasoning, rather
than the formal source of a rule under Article 38 of the Statute of the International Court of
Justice, as the operative mechanism that gives the trade regime coherence and predictabil-
1
Rambod Behboodi, ‘Legal Reasoning and the International Law of Trade: The First Steps of the Appellate Body
of the World Trade Organization’ (1998) 32(4) J World Trade 55, 56–58.
2
JH Dalhuisen, ‘Legal Orders and their Manifestation: The Operation of the International Commercial and
Financial Legal Order and its Lex Mercatoria’ (2006) 24 Berkeley J Intl L 129, 131–134.
3
Behboodi (n 1) 59–62.
4
Behboodi (n 1) 64–68.
5
Behboodi (n 1) 70–74.
6
Behboodi (n 1) 76–79.
Page 2 of 13
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MIL5902: International Trade and Investment Law
Assignment 2 | 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MIL5902
Module Code:
International Trade and Investment Law
Module Name:
Legal Reasoning and Transnational Legal
Essay Topics: Orders in International Trade Law; Rene-
gotiation and Adaptation of International
Investment Contracts
Assignment 2
Assignment Number:
September 2026
Due Date:
Submitted in partial fulfilment of the requirements for In-
ternational Trade and Investment Law, UNISA 2026
, UNISA | MIL5902 Legal Reasoning, Transnational Orders & Investment Contracts
Question 1: Legal Reasoning, Transnational Legal Orders and the International Law of
Trade
The development of international trade law owes a great deal to methods of legal reasoning
that do not fit comfortably within the traditional, state-centred model of international law-
making by treaty and custom.1 Both the adjudicative practice of the WTO Appellate Body
and the transnational commercial and financial legal order described by Dalhuisen illustrate
legal orders that are manifested, applied and legitimised through reasoning practices that
transcend the classical state-based paradigm, even though they remain, in different ways,
tethered to it.2 This section critically evaluates that claim by analysing legal reasoning in
international trade law, examining the emergence of transnational legal orders, and assessing
the legitimacy of such orders in the absence of a central law-making authority.
1.1 Legal reasoning in international trade law
Behboodi’s study of the WTO Appellate Body’s first steps argues that the legitimacy of an
international adjudicative body without a hierarchical superior depends less on formal pedi-
gree than on the quality and consistency of its reasoning.3 He situates the Appellate Body
within an “interpretive community” whose authority is built through predictability and security
in decision-making, so that reasoned justification substitutes for the coercive backing that
domestic courts derive from the state.4 On this view, the Appellate Body’s early jurisprudence
functioned as a form of common-law-style reasoning by analogy and precedent, notwith-
standing that WTO law formally rejects a strict doctrine of binding precedent, because parties,
panels and the Appellate Body itself needed a stable basis on which to predict how ambigu-
ous treaty terms would be applied.5 This is significant because it shows international trade
law developing an internal reasoning discipline that resembles adjudicative reasoning in na-
tional legal systems, while operating in a horizontal system of formally equal, sovereign treaty
parties rather than a vertical hierarchy of courts.6 Behboodi thus treats legal reasoning, rather
than the formal source of a rule under Article 38 of the Statute of the International Court of
Justice, as the operative mechanism that gives the trade regime coherence and predictabil-
1
Rambod Behboodi, ‘Legal Reasoning and the International Law of Trade: The First Steps of the Appellate Body
of the World Trade Organization’ (1998) 32(4) J World Trade 55, 56–58.
2
JH Dalhuisen, ‘Legal Orders and their Manifestation: The Operation of the International Commercial and
Financial Legal Order and its Lex Mercatoria’ (2006) 24 Berkeley J Intl L 129, 131–134.
3
Behboodi (n 1) 59–62.
4
Behboodi (n 1) 64–68.
5
Behboodi (n 1) 70–74.
6
Behboodi (n 1) 76–79.
Page 2 of 13
