In order to save independent, two-tiered and binding WTO dispute settlement, US critiques of AB “overreach” must be taken seriously, even if one is not fully convinced by such critiques. If the AB has, indeed, “overreached”, who is actually behind it, and most importantly, how might one “correct the course”? Indeed, at every DSB meeting, the US now explains its continued blockage of the AB appointments process with this single, and so far unaddressed, question:
Members need to engage in a deeper discussion of why the Appellate Body has felt free to depart from what Members agreed to … Without further engagement from WTO Members on the cause of the problem, there is no reason to believe that simply adopting new or additional language, in whatever form, will be effective in addressing the concerns that the United States and other Members have raised.
Any responsibility involved is most likely collective. One important actor we all know about but hardly ever discuss openly is the WTO Secretariat, advising panels and the AB.
In a recent paper with Krzysztof Pelc, we examine the role of the Secretariat in WTO dispute settlement. The WTO’s Legal Affairs Division (LAD) was created in the mid-1980s to deal with panels “gone rogue”, especially on questions of legal interpretation. In the DSU, the Secretariat’s role of providing “legal support” was explicitly confirmed, also at the AB level. Since then, the Secretariat’s influence has only increased: It proposes and appoints panelists, helps set timetables and working procedures, writes “issues papers” and panel/AB questions to the parties, actively participates in hearings and internal deliberations and, in many cases, in what amounts to an “open secret” in Geneva, actually drafts panel and AB reports.
We empirically tested this claim, by asking: How much influence does the Secretariat versus adjudicators exert over the drafting of WTO rulings? As we only have publicly available data on WTO panel staff (and this for roughly 1995-2005 only), not AB staff, our empirical analysis is limited to panels. We rely on two different text analysis approaches. We begin by comparing the textual similarity of rulings on the basis of their potential authors. We then collect external texts written by all the potential authors of WTO rulings to create stylometric profiles for each. Using computational authorship-attribution tools, we then apply these profiles to determine who the more likely author of a given ruling is. The findings are unambiguous: the WTO Secretariat appears to exert significantly more influence over the writing of WTO panel reports than the adjudicators themselves. Of course, drafting a ruling is one thing; actually making the underlying decision is quite another.
We then explain how the Secretariat’s functions grew over time as a result of the greater experience and expertise of its (permanent) staff, compared with (part-time) adjudicators, asymmetries between staff and adjudicators in appointment terms, the relative independence and limited accountability of staff, and the fact that staff is assigned to panels/the AB as a whole instead of individual panelists or AB members.
We also elaborate on how the Secretariat’s role matters: (i) who “holds the pen” takes on special significance in a legal regime that pays close attention not only to the reasoning but also the actual words used in past rulings; (ii) crossing the line between adjudicator and staff tasks may threaten the legitimacy, trust and compliance pull of WTO rulings; (iii) and of most immediate relevance, a greater role for the Secretariat may have an impact on substantive outcomes, in particular: an increased (some would say, excessive) reliance on precedent; convoluted writing style and length of reports and proceedings; expansive scope and ambition of rulings; collegiality and low number of dissents.
Paradoxically, this implies that increasing the role of WTO staff may lengthen and complicate the process and rulings, rather than making the process faster and more efficient. Indeed, the annual number of WTO disputes has remained steady; meanwhile the size of the Secretariat’s legal staff has more than doubled (from 37 people in 1999, to 90 people in 2018). Intriguingly, some of these impacts also overlap with the very US concerns that are now threatening to sink the AB: the role of precedent and obiter dicta; the expansive interpretations of the AB’s mandate; the AB’s usage of Rule 15; and frequent flouting of the 90-day period for AB review.
From a force to keep “rogue” panels in check, the Secretariat may therefore have evolved into an agent of more expansive dispute settlement. Correcting “overreach” may then, paradoxically, require more voice for adjudicators (e.g. more experienced panelists, full-time AB members and more scope for dissents), and a reduced role for the Secretariat (e.g. minimalist “issues papers” and less involvement in internal deliberations and drafting; adjudicator rather than division director oversight of Secretariat staff).
This, in turn, highlights how the role of the Secretariat matters; adjusting it may even help save the overall system.
We posted the paper on Monday and have already received some great comments. The paper remains a draft, so any comments or feedback would be much appreciated.
