From the abstract of a "A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development," by Juscelino Colares:
The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased rule development explains this disparity. This Article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.
And from the conclusion:
The cases discussed in Parts VI.A and VI.B show how WTO adjudicators have consistently deployed interpretive methods that produce a consistent outcome: restricting Respondent discretion to adopt otherwise trade-restrictive measures, and thus furthering the promotion of an unfettered version of trade. While free trade itself is the noble goal on which the entire WTO edifice is erected—a goal that is not controverted by this Article—its pursuit is disciplined by a set of agreements that demarcate what constitutes permissible conduct under a self-contained system of laws. As described above and as the overall asymmetric pattern of Complainant and Respondent Success Rates suggests, WTO litigators have adopted a pro-trade adjudicatory philosophy that sacrifices Respondents’ jurisdictional competencies. This adjudicatory philosophy has manifested itself in two major types of case dispositions: reducing Respondents’ rights under the agreements (e.g., nullifying the Respondent-deferential AD standard by capriciously interpreting its terms, applying the DSU standard where the more deferential AD standard controls, conflating the two standards into an amorphous de novo standard, and giving no effect to declarations that would presumably favor Respondents) and creating Respondent obligations where none previously existed (e.g., creating extraneous, non-contemporaneous tests to gauge Respondents’ conduct during investigations, finding an obligation to engage in multilateral negotiations before instituting regulations, and using non-WTO obligations to test a Respondent’s good faith). As the Appellate Body has acted in a manner that consistently reduces Respondents’ regulatory discretion, it has produced a jurisprudence that privileges trade liberalization at the expense of the reservations members made through the negotiating process. By producing a jurisprudence that “clarif[ies] the existing provisions of [the] agreements” consistently in one direction, WTO adjudicators have failed to “preserve the rights and obligations of Members under the covered agreements.”
