Joost raises an important systemic issue in a new paper:
This contribution makes an empirical assessment of the role of precedent in WTO dispute settlement. As an imperfect proxy it counts cross-references between the 108 Appellate Body reports issued between 1996 and 2013. Using basic tools of network analysis it attempts to answer the following questions. Has the Appellate Body developed a practice of de facto rule of precedent? If so, as of when? Over time, is it influenced more or less by earlier reports? Have some Appellate Body reports been more influential than others? Conversely, are some Appellate Body reports relying on earlier decisions more extensively than others? Results confirm how important previous Appellate Body reports are for future WTO litigation. No one can successfully engage in WTO dispute settlement without knowing previous Appellate Body case law.
This naturally leads to a second set of questions. If the Appellate Body is effectively engaged in rule refinement, if not rulemaking, with legal effects on all WTO members (not just the disputing parties), which WTO members are shaping this rule development? Are some WTO members more active in Appellate Body litigation than others? Are other WTO members completely outside of this norm-development process? Whereas the network of cross-references between Appellate Body reports is both large and dense (35.4%), with multiple cross-references between many of the 108 reports to date, the network of participants before the Appellate Body, in contrast, is small and sparse (0.8%), with literally two WTO members acting as central hubs or feeders of WTO Appellate Body jurisprudence, leaving all other WTO members well behind.
All of this sounds right, but I think it's worth noting one additional point. There are many people in the U.S. (not me!) who feel that the system is biased against them, and despite its active participation, the U.S. isn't getting what it bargained for (think "zeroing"). Is there a way to measure how effective individual governments have been at influencing the development of the jurisprudence in their preferred direction? Clearly, all of those complaints against the U.S. and EU allow those Members to have disproportionate participation in the process. But what if the result is jurisprudence they don't like?
