UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law — Department of Mercantile Law
⋄
International Trade Law
Assignment 2 — 2026
⋄
Module Code: MIL5902
Module Name: International Trade Law
Assignment No.: Assignment 2
Due Date: September 2026
Semester: 2026
Submitted in partial fulfilment of the requirements for International Trade Law
at the University of South Africa.
, UNISA | MIL5902 International Trade Law — Assignment 2
Question 1: Legal Reasoning and Transnational Legal Orders in International Trade Law
International trade law has never fitted comfortably inside a single national legal system,
and the reasoning that sustains it draws on treaty text, arbitral practice, custom and general
principles at once.1 Behboodi’s account of legal reasoning in trade law and Dalhuisen’s de-
scription of an autonomous international commercial and financial legal order both start
from the same observation: state-centred, positivist models of law struggle to explain how
disputes between traders, investors and states are actually resolved in practice.2 The state-
ment that trade law is shaped by methods of reasoning transcending state-based systems is,
on balance, correct, but only if legitimacy is understood functionally rather than through the
traditional test of a sovereign lawgiver.
1.1 Legal Reasoning in International Trade Law
Classical legal positivism treats law as a closed system of rules traceable to a sovereign
or a treaty-making state, with judges applying doctrine through deductive syllogism.3 Be-
hboodi argues that this model cannot account for how panels and the Appellate Body of the
World Trade Organisation actually reason: interpretation of the General Agreement on Tariffs
and Trade and the covered agreements routinely borrows the Vienna Convention’s textual
method, supplements it with economic reasoning about trade effects, and cross-refers to
prior rulings despite the absence of a formal doctrine of precedent.4 Reasoning of this kind
is eclectic rather than syllogistic: it treats a rule’s object and purpose, its drafting history and
its economic consequences as mutually reinforcing sources of meaning, not as separate and
hierarchically ordered inputs.
This eclecticism is not confined to the WTO dispute settlement system. Commercial and in-
vestment arbitrators construct awards using a comparable method, moving between the
express terms of a contract, trade usage, general principles common to major legal sys-
tems, and analogies drawn from other awards.5 Behboodi’s central claim is that this style
of reasoning is functional: it exists because international trade requires outcomes that are
predictable across legal systems, and a rigid positivist method tied to one national tradition
1
S Behboodi, ‘Legal Reasoning and the International Law of Trade’ (1998) 32(4) Journal of 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 Journal of International Law 129, 131–134.
3
Behboodi (n 1) 59–61.
4
Behboodi (n 1) 66–70.
5
Dalhuisen (n 2) 138–141.
Page 1 of 12
College of Law — Department of Mercantile Law
⋄
International Trade Law
Assignment 2 — 2026
⋄
Module Code: MIL5902
Module Name: International Trade Law
Assignment No.: Assignment 2
Due Date: September 2026
Semester: 2026
Submitted in partial fulfilment of the requirements for International Trade Law
at the University of South Africa.
, UNISA | MIL5902 International Trade Law — Assignment 2
Question 1: Legal Reasoning and Transnational Legal Orders in International Trade Law
International trade law has never fitted comfortably inside a single national legal system,
and the reasoning that sustains it draws on treaty text, arbitral practice, custom and general
principles at once.1 Behboodi’s account of legal reasoning in trade law and Dalhuisen’s de-
scription of an autonomous international commercial and financial legal order both start
from the same observation: state-centred, positivist models of law struggle to explain how
disputes between traders, investors and states are actually resolved in practice.2 The state-
ment that trade law is shaped by methods of reasoning transcending state-based systems is,
on balance, correct, but only if legitimacy is understood functionally rather than through the
traditional test of a sovereign lawgiver.
1.1 Legal Reasoning in International Trade Law
Classical legal positivism treats law as a closed system of rules traceable to a sovereign
or a treaty-making state, with judges applying doctrine through deductive syllogism.3 Be-
hboodi argues that this model cannot account for how panels and the Appellate Body of the
World Trade Organisation actually reason: interpretation of the General Agreement on Tariffs
and Trade and the covered agreements routinely borrows the Vienna Convention’s textual
method, supplements it with economic reasoning about trade effects, and cross-refers to
prior rulings despite the absence of a formal doctrine of precedent.4 Reasoning of this kind
is eclectic rather than syllogistic: it treats a rule’s object and purpose, its drafting history and
its economic consequences as mutually reinforcing sources of meaning, not as separate and
hierarchically ordered inputs.
This eclecticism is not confined to the WTO dispute settlement system. Commercial and in-
vestment arbitrators construct awards using a comparable method, moving between the
express terms of a contract, trade usage, general principles common to major legal sys-
tems, and analogies drawn from other awards.5 Behboodi’s central claim is that this style
of reasoning is functional: it exists because international trade requires outcomes that are
predictable across legal systems, and a rigid positivist method tied to one national tradition
1
S Behboodi, ‘Legal Reasoning and the International Law of Trade’ (1998) 32(4) Journal of 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 Journal of International Law 129, 131–134.
3
Behboodi (n 1) 59–61.
4
Behboodi (n 1) 66–70.
5
Dalhuisen (n 2) 138–141.
Page 1 of 12
