No, my previous post wasn't intened as a rhetorical question. Simply inexperience at using Typepad. What I meant to post was:
Many recent posts, and much media commentary, have tried to identify the implications of the current impasse in negotiations. There is a rough consensus that failure of negotiations on the multilateral track will likely prompt additional efforts to negotiate regional and bilateral pacts. There is also a rough consensus that Doha’s failure will likely result in more dispute settlement proceedings involving issues that are/were on the negotiating table. Indeed, Simon Lester’s recent post suggests that this development may already be underway.
If the breakdown of negotiations means that panels and the AB will, de facto, assume a larger lawmaking role, perhaps trade scholars should pay increased attention to the participants in this process. To be sure, a growing literature discusses which states litigate and under what circumstances. Others have explored the roles that non-state actors play in supporting Member States in the context of WTO dispute settlement, including the crafting of legal positions and drafting of WTO submissions (see here and here). But another development that has largely escaped attention is the successful effort by a relatively small number of major law firms, primarily based in the U.S., to play important roles in WTO dispute settlement.
According to a recent article in Focus Europe (part of the American Lawyer family), it appears that a small number of large firms have become deeply involved in a number of major disputes. Thus, the article reports, for example, that Wilmer and Sidley are involved in the disputes over Boeing and Airbus subsidies; the GMO dispute; the sugar dispute; and a substantial number of other WTO-related matters. The article raises the question of whether we are seeing the development of a small, elite WTO bar, akin to the small, elite Supreme Court bar, or the even smaller ICJ bar – and, if so, the implications of this development for the WTO dispute system.
Clients involved in trade disputes have good reason, of course, to turn to experienced trade law specialists; and there can be no doubt that elite firms like Wilmer and Sidley possess enormous amounts of expertise, and provide first-rate representation to their clients.
However, we’ve already begun to see some of the potential difficulties posed by the existence of a small trade bar (see post here). But the larger and, I believe, more important issues here concern legal sociology. How does a legal culture – in this case, the WTO’s still evolving legal culture – get produced, received and adopted? What role will repeat-player private attorneys play in this process? And – particularly in light of the political breakdown at the WTO and increased pressures on the dispute system to address issues the political system couldn’t resolve – what are the implications of having ideas and legal theories generated by and filtered through a relatively small set of players? In short, should we worry about a potential cartelization of WTO-related legal practice the same way we would worry about a cartelization of other markets?
Jeff Dunoff
