Article: Epistemic Contests and Legitimacy of the World Trade Organization: The Brazil – USA Cotton Dispute and Incremental Balancing of Global Interests, 4(1) Trade, L. & Dev. 200 (2012) [available here]
Author: Arthur Daemmrich
Reviewer: Joost Pauwelyn
Introduction to the article, by Simon Lester
There is a long-standing debate involving the “legitimacy” of the WTO. Critics have pointed to a number of issues -- such as a lack of transparency, intrusion into domestic affairs, and insensitivity regarding non-trade policy issues -- to question the WTO’s role. Arthur Daemmrich’s article opens another chapter in this discussion, exploring a new source of legitimacy: Well-reasoned legal decision on matters requiring technical expertise.
While the WTO’s role as the main forum for trade negotiations has diminished in recent years, due to its own failures and the rise of bilateral and regional agreements, its dispute settlement mechanism is still held in high regard. The ability to resolve trade disputes in a manner that earns respect and praise from WTO Members and outsider observers keeps the WTO relevant. According to Daemmrich, it also enhances the WTO’s legitimacy.
Daemmrich describes how WTO litigation is increasingly focused on technical issues, such as science or economics. WTO panelists have a hard time handling these issues on their own. They are forced to turn to – or the parties point them to – experts. The panelists must then sort through the (sometimes conflicting) expert opinions they have been given and make a judgment. It is these judgments that are the focus of Daemmrich’s article. According to Daemmrich, the legal decisions made in these cases can help to build the WTO’s legitimacy, as the WTO litigation process serves as the arbiter of technical expertise as it relates to particular disputes. In doing so, the WTO’s “judges” promote the WTO’s good reputation.
To illustrate the point, Daemmrich focuses on the US-Brazil cotton dispute. He explores the details of the economic arguments made by the parties and their experts in that context, which centered around allegations that U.S. subsidies caused economic harm to Brazilian cotton producers. The case involved conflicting economic models that the WTO panelists had to sort through and evaluate. He discusses the back and forth legal arguments over the use of the various expert studies, and explains how the WTO panel resolved these issues.
Daemmrich sees flaws in the process, and advocates greater openness and more outside perspectives. It is important, he says, that the WTO adjudication system maintains its legitimacy, and such improvements may help in this regard. Overall, though, he sees the dispute settlement process as contributing greatly to the WTO’s legitimacy.
