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Abstract

One of the basic assumptions that tort law theorists make, is that the law always takes a decision that is prone towards achieving both efficiency as well as the overall reduction in social costs. Given such an assumption, the issue, however which has been the topic of long lasting argumentative discourse, is the constant dilemma which legal institutions face, with regards to whether it is the ‘rights based’ formulation/interpretation/application of the law that must prevail or whether the maximization of economic welfare/efficiency should be the larger paradigm for a proposed legal system. In addition to drawing and examining such a distinction in international trade law, through the eyes of the torts model, this paper reviews an alternate line of reasoning propounded by Mark A. Geistfeld, (a faculty member of the International Law Department at the New York University School of Law), through his contribution in Theoretical Foundations of Law and Economics. Through his model of analysis, Geistfeld reflects upon the possibilities of the co-existence of both approaches, namely those of being ‘rights based’ as well as ‘allocatively efficient’, thereby paving way for an overall clarity of ‘choice’ in the legal system.The central hypothesis of the above-mentioned analysis model is to prove how the system of tort law that he proposes has the potential required to fulfill the conditions of being fair, while significantly reducing the social costs of accidents. The primary purpose of the author therefore, shall be to debunk falsities of nomenclature related to the National Treatment Principle in international trade law in the WTO regime, in a bid to show how the problem of choice continues to plague policy processes, and which can be countered through the balance of such ‘choices’ in trade. Such questions shall be addressed with special reference to Prof. Upendra Baxi’s ‘third worldism’ paradigm, in the context of developing and underdeveloped countries and the role played by normative and existential contradictions therein. Given the nature of several artificial trade barriers which exist today, which are antithetical to the primary intent of the New Economic Order, the larger objective of the author’s research is to bring about the constant dichotomy that prevails in the trading realities of the globalizing world, in the garb of public policy and the legitimate ‘choice’ that evidently works to the detriment of a unified economic system.

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