Legal Capacity and Dispute Settlement

Eric Reinhardt, Greg Shaffer and I recently completed a survey of WTO members.  One of the questions we asked each delegation concerned the sources of advantage in dispute settlement for the most powerful members. Fully 88 percent of the respondents answered that the advantage held by the largest members in dispute settlement comes from their greater legal capacity (i.e., the “number and legal sophistication of government officials,” “experience of government officials with WTO dispute settlement,” their greater ability to afford the “high cost of WTO litigation,” and “greater private sector support”), versus only 48 percent who thought that the advantages of powerful members derive from considerations related to market power (i.e., the “lack of retrospective remedies,” “reliance on suspension of trade concessions,” or “ability to apply external political (non-legal) pressure”). In fact, the survey indicates that the members’ delegations view legal capacity as the number one issue that shapes how effectively countries use the WTO dispute settlement system.  Many DSU reform proposals speak about S&D, but there is little mention of what to do about helping developing countries build legal capacity per se.  What can or should be done?