Over at OpinioJuris, Roger Alford voices some concerns about the willingness of a Chinese AB Member to rule against China. AB Member have so far had a very good record of impartiality, with EC and US members regularly contributing to reports ruling to the detriment of their home state. Would a Chinese member (and I intentionally make no specific reference to Zhang Yeujiao) be different?
From an interesting empirical paper by Erik Voeten of Georgetown University, we might infer the opposite. On the basis of a study of dissents in the European Court of Rights, Voeten finds, inter alia, "strong evidence that judges from countries with low levels of domestic legal independence are more likely to find against their own government than judges from countries where the legal system is better insulated from political interference. Presumably the latter judges perceive an activist international court as an intrusion on a satisfactory status quo, whereas the former perceive it as a potentially useful constraint on domestic executive power. There is some evidence that career ambitions also motivated judicial behavior but no evidence that judges ruled based on cultural biases or that geopolitics played a role in judicial decisions".
This is somewhat counterintuitive, but makes sense. Dissents in the WTO are rare, but this should make it more difficult for a judicial decision maker to act impartially, not less.
T
