Following-up on Joost's post about his new paper with Krzysztof Pelc on the role of the WTO and Appellate Body Secretariats in WTO disputes, I wanted to offer some brief thoughts. Here's the first one:
More seriously, I sort of agree with them, in the sense that if I were designing a system from scratch, I probably would not have designed the one we have. However, the system evolved the way that it did, and we are where we are. Changing the system to one with panelists/Appellate Body Members relying on clerks that they hire (or some other alternative) rather than on the secretariat would be a leap into the unknown. It's not at all clear where we would end up.
Joost and Krzysztof seem to think we might end up in a better place. They suggest that the existing system may be the cause of some current concerns about WTO dispute settlement, and thus changes to the current system of Secretariat legal assistance might be helpful. Along these lines, they write:
Yet what we describe below as an inclination to write rulings that are ambitious and expansive in scope may, indeed, lead to what at least some Members have viewed as (i) activist interpretations that go “beyond the text”; (ii) advisory opinions on issues not necessary to resolving the dispute; and (iii) an expansive position on “legal issues” subject to AB review (e.g. including panel findings on the meaning of domestic law). Convoluted writing style and longer reports and proceedings, in turn, may partly explain why the AB has struggled to decide within the prescribed 90 days which, in turn, has necessitated many outgoing AB members to continue working on appeals even after their term ended (pursuant to Rule 15 of the AB Working Procedures). In other words, the outsized role of the Secretariat matters; adjusting it may even help save the overall system.
And they write:
Convoluted writing style and lengthy reports and proceedings. Detailed reference back to past decisions makes “issues papers” and eventual rulings longer. As the number of past rulings increases, reports tend to be longer over time, as has happened in the WTO. When WTO staff, especially younger, less experienced staff, draft reports (instead of seasoned adjudicators themselves), language may become more technical and convoluted. This effect may be heightened when staff are assigned to, and draft for, the panel or AB division as a whole, instead of individual adjudicators.
And also this:
Expansive scope and ambition of rulings. Experienced adjudicators, especially in state-to-state cases, have often come to realize the importance of sticking to party claims and deciding cases narrowly and incrementally, with a serious dose of humility. They make their own selection of the salient issues and arguments they wish to rule on, and focus their reasoning on certain elements, while relegating others to the margins of the analysis, exercising a type of “selection prerogative”. WTO staffers, especially younger ones or those academically inclined, may, however, fall victim to what Justice Rehnquist, in the context of US Supreme Court clerks, called “youthful exuberance”. They may feel compelled to dissect every issue and argument to the fullest extent, leaving “no stone unturned”.
The suggestion that young WTO staffers push for more "ambitious" or "expansive" or "exuberant" reasoning surprises me. It is certainly not what I observed while I worked at the Appellate Body Secretariat. But that is just a two year snippet of data, and I don't know what happened in all the other cases along the way. Nevertheless, although personalities vary and generalizations can be dangerous, on balance I would be more concerned about "ambitious" or "expansive" or "exuberant" reasoning if we shifted to a model based on panelists/Appellate Body Members hiring their own clerks for short terms, as is the case in many domestic legal systems. I can see how there may be less inclination by these adjudicators to address every argument by the parties, which makes WTO reports longer than they need to be. However, most of that sort of reasoning is not very "ambitious" or "expansive" or "exuberant," and my guess is the over-responsiveness to party arguments would be replaced by more significant reasoning.
As a final point, they say:
In a legal system like the WTO, with a form of de facto precedent, where earlier reports are almost religiously quoted, dissected and most often followed, the exact words and reasoning used in reaching the decision matter as much as the direction of the ruling itself (Busch and Pelc, 2019). As things stand today, panel and AB decisions not only offer a resolution of the dispute for the parties. They also interpret or give meaning to terms in the WTO treaty that will impact future cases. National treatment under the TBT Agreement has, for example, been read as including an obligation of “calibration”; “public body” in the Subsidies Agreement has been defined with reference to “governmental functions”. The words “calibration” and “governmental function” have no textual support in the WTO treaties themselves. They were included in the drafting process of particular rulings. Yet, they take on a life of their own and in subsequent cases, panels and the AB further apply and imbue meaning into these words. These interpretations, in turn, have distributional consequences: they favor some countries’ interests over others (Daku and Pelc 2017). As a result, who “holds the pen” matters, nowhere more so than in the current WTO system.
That's all true, of course, but it was also true back in the 1950s, before all the secretariat lawyers showed up, and a GATT panel uttered the famous line about "the conditions of competition between the domestic and imported products on the internal market." Will the de facto precedent be better than it has been recently if someone other than a Secretariat staffer is holding the pen? Maybe. Or maybe not. If the WTO Membership wants to take the plunge, we'll find out!
