By Marc Benitah in — 01 Apr 2009

WHAT LIES BEHIND BRAZIL'S SUCCESS AT THE WTO? RESOURCES OR A SOLID LEGAL CASE?

In a recent article entitled "THE TRIALS OF WINNING AT THE WTO: WHAT LIES BEHIND BRAZIL'S SUCCESS", the authors ( Shaffer, Ratton Sanchez, Rosenberg ) underline as factors explaining this success:

a) Brazil's successful use of the system through hiring talented U.S. litigators

b)Brazil's sophisticated use of WTO litigation through working with outside attorneys and economic consultants. Over the last years, parties increasingly use econometric studies to support a WTO claim, hiring economic consultants to work with outside lawyers.

They conclude with a pessimistic note for developing countries:

The more that parties use them, the more that this expertise will be required. Smaller, poorer countries are thus more likely to find themselves outside of the legal process and in a traditional bargaining relationship with their major trading partners, a situation in which they are relatively disadvantaged. Alternatively, their best hope is to become a member of the Advisory Centre on WTO Law (ACWL), established in 2001, which provides developing countries with lower-cost legal support for WTO dispute settlement and legal analysis. The ACWL alone, however, cannot resolve a country's capacity challenges in WTO dispute settlement.

I know that the authors of the article are "legal realists" who like to underline this kind of institutional aspects. But would not it be simpler to say that Brazil had a solid case from a legal point of view? Antigua won its case without the resources of Brazil.

NB: The exact reference for the article is 41 Cornell Int'l L.J. 383