A result like that in the recent Tuna/Dolphin 21.5 proceeding, on which I blogged here early this week http://worldtradelaw.typepad.com/ielpblog/2015/11/the-tunadolphin-appellate-body-215-ruling-a-decision-that-could-threaten-the-integrity-and-efficiency-of-wto-dispute-settl.html, necessarily focuses attention on the inner workings of the Appellate Body. How could such an incoherent almost unreadable opinion, where the finding of violation appears to be based, at least in no small part, on a mistaken reading of US municipal law, be allowed to see the light of day? As those familiar with my scholarship know, I have been a great admirer of the AB's achievements over the years. In my post earlier this week, I speculated that the Tuna/Dolphin ruling might in part be explained as a kind of amalgam of different views by a divided AB or even a divided division. The head of the AB Secretariat Werner Zdouc, as I mentioned, has apparently taken an activist position that Members of the AB avoid dissenting or separate opinions. But this may be coming at a cost of a lack of transparency and indeed basic clarity about the underlying jurisprudential stances of the appellate judges. Already one could see this in cases like Seals, on balance an excellent outcome, but where scholars like Greg Schaffer rightly complained about the obscurity of the grounds of the AB's reasoning on key points. The doctrinal glissage between Seals, Cloves and Dominican Republic Cigarettes about whether legitimate non-protectionist grounds for regulatory distinctions is a consideration in the application of National Treatment, a very important issue that relates to policy space and the legitimacy of the WTO, is a troubling example of the AB shifting without any kind of clear expression of change of direction. One could say that the judges were brought to overrule Dominican Republic Cigarettes through the transitional device of an obscure footnote about that decision in Cloves.
We know little about the exact role Werner Zdouc is playing in the current decision-making of the AB, though that he would apparently take a strong stance on an issue that goes to the core of judicial collegiality does to me raise questions about what a secretariat is exactly supposed to do. Zdouc has been with the AB for 10 years, but was in the WTO bureaucracy for years before that. He is an intelligent thoughtful Austrian lawyer, and I regard him as a professional friend. He keeps what seem to be investment banker's hours and is among the hardest working people at the WTO for sure-but even so he enjoys and values contacts with academics, and has not infrequently made the time for a coffee or drink in a busy schedule when I was passing through Geneva.
In most courts and tribunals there tends to be more, often much more rotation in the law clerks than in the judges. But Zdouc has been a long-term fixture and there have been many rotations in the AB during his tenure. In a sense, this situation could not but give him some unusual degree of influence over the AB, as an institutional memory and source of continuity.
There is a case to be made that the WTO should have a senior judicial officer (perhaps along the lines of the Advocate-General function in the EU) who is a truly independent, and whose advice on how cases ought to be decided would be in the form of published opinions, not back room counsel. This is not a new proposition or original with me (I seem to recall Joseph Weiler suggesting it once, though I'm not sure). Independence would mean that Advocate-General does not come out of the WTO bureaucracy but from a different background more consonant with such a function. Experience in another international or regional court or tribunal for instance. One version of this proposal in in this essay by Armand de Mestral and M. Auerbach-Ziogas http://ebooks.cambridge.org/chapter.jsf?bid=CBO9780511494499&cid=CBO9780511494499A025. I am not wedded to one version of the idea, and I think there would be a way of introducing it that would not necessarily entail changing the DSU, provided that the A-G opinion were not binding in any way and that it were given within the current time frames for proceedings as required by the DSU.
In circumstances where it is clear to all that there is very limited capacity for the WTO to be an effective forum for the negotiation of new trade rules, and where there is so much centrifugal dynamism in regional negotiations, what gives the WTO salience today is the quality and legitimacy of dispute settlement; that a multilateral tribunal, the AB, interprets key norms of liberalized trade, like National Treatment and MFN, on a regular basis helps to keep regional fragmentation from resulting in normative fragmentation. We must not allow the crown jewels of the multilateral trading system to be stolen, lost or commandeered.
All thoughts and reactions welcome!
