This is a guest post by Pieter Jan Kuijper
Some Remarks on
“Who writes the Rulings of the World Trade Organization?
A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement”
By Joost Pauwelyn & Krzysztof J. Pelc[1]
The paper concentrates entirely on the role the WTO staff assisting panels and the Appellate Body (AB) in the preparation for and the drafting of panel and AB reports. It argues that the role of the staff in these tasks has become too important relative to that of the members of these (quasi-)judicial bodies. This has led to a number of “failings” in the panel and Appellate Body reports, which are at the root of many of the objections leveled by the US over the last two years against the functioning of AB. As is generally known, these US objections have been converted into an unwillingness to fill vacancies in the AB and will result in the AB’s probable destruction by year’s end. The authors also affirm that they do not want to express themselves on the merits of the US objections beyond signaling that other Members disagree strongly, thus taking these objections de facto as given.
The paper is interesting where it uses a new computerized technique of recognizing writing style as a means to identify the author(s) of panel and AB reports. One may well wonder, however, whether the conclusion that panel and AB staff wrote a large parts of these reports was not already known from interviews with and writings of staff, panel and AB members. Still, it is good to have a confirmation.
The paper falls short as far as its references to legal cultures of assistance to the highest courts are concerned. The only comparators are some international courts, mainly arbitration tribunals and the ICJ, and the US Supreme Court. Especially making this last court into the only national court that the WTO system is compared to is a recurrent, but still objectionable, error in WTO scholarship, especially in the US.[2] This makes the panels and the Appellate Body and their staffs seem exceptional, because they are different from the ICJ and the Supreme Court. It creates the impression that the paper caters primarily to an American audience and thus makes it less convincing to audiences elsewhere.
In many ways the panels and the AB show quite some parallels to the Cours de Cassation and the Highest Administrative Courts in civil law countries.[3] These systems use “precedent”, but not stare decisis, just like the AB and the panels. (In reality this so-called “precedent” is nothing more than consistency over time.) Nevertheless in these systems it is possible to force a change in the “precedent”, if the lower court properly distinguishes a new case from a “precedent” or shows clearly and convincingly that the “precedent” of the highest Court cannot, or no longer, withstand scrutiny. This is not that far from the standard that the Appellate Body laid down in its case law: “cogent reasons” - which therefore is not at all exceptional.
Judges in these systems are assisted not just by their courts’ registrar and his staff, but often also by research lawyers. All these people are civil servants (mostly on a permanent contract). Think about the staff of the Cours de Cassation and the staffs of the Conseils d’Etat in many European countries and countries inside and outside Europe that have been within their legal sphere of influence. Moreover these civil service assistants of the highest courts in civil law systems remain anonymous, just as in the case of the panels and the AB. So there is nothing strange or exceptional about this arrangement – an impression the authors create because they have not included the civil law countries in their research.
Obviously, the somewhat skewed power relations between full time staff and part time judges do not exist in those systems, because the (permanent) judges at that level are equally smart and have often more experience than their (civil servant) assistants. The power between judges and assistants is more equally balanced than in the AB and in Panels. But that demonstrates that there is another, and in my view better, alternative than clip the wings of the staff of panels and the AB, namely appoint AB Members on a full time basis with a serious salary. (By the way, I remember from the last phase of the Uruguay Round negotiations that this was seen as a possible outcome, if after a number of years the AB would have a serious docket.) In the same way panel members should be much better paid than is actually the case. That would attract a different caliber of person, create a good balance between “judges” and their professional staff, and lead to an even higher quality of reports.
The authors largely spare the Members of the WTO this solution[4], because we all know many of them will not like that, but it is no good reason to lay the brunt of the solution of this “problem” only on the Secretariat. That amounts to punishing the Secretariat because they are too good, whereas the real problem is that the “judges” may be not (or no longer) good enough and/or not capable or willing to spend the necessary time on the job, given the remuneration they are getting.
Another example of saddling the staff with the sins of the Members can be found in the discussion of panel selection. The dysfunction of the method of panel selection consists in the parties to a dispute being increasingly unhappy with proposals for panel members from the Secretariat and incapable of agreeing on panel composition, so that the Director-General of the WTO nowadays must appoint all or some panel members for a large number of panels. This is a problem that can largely be laid at the feet of the Member States, but the authors fail to note this. They argue that it leads to the Legal Affairs Division (LAD) staff appointing their “own” panels and from there, implicitly, the staff may well lead them into the temptation of “overreach.” They even suggest that it is regrettable that in such situations the panel members or the Member States have no control over the WTO staff, “let alone the power to terminate their contracts”(p. 23). Obviously the panel members have power over the staff that is assisting them, if only the State Members were appointing panel members who had the wish to use their authority over their panel’s staff (see above). As to terminating contracts, if a staff member really would have misbehaved, a Member State can complain to the Director-General and he would be duty bound to look into such a complaint.[5]
More generally, cassation systems as a comparator for the panels and the Appellate Body also serve as a better explanation for the way in which the AB has dealt with the line between law and fact. All these systems have come to the same conclusion as the AB: there comes a moment where it is obvious that the lower court has maltreated the facts in such a serious way that it stains, it infects the law of the lower court’s judgment. That is when facts become law and the cassation court must yet have the possibility to intervene. Moreover, cassation systems know no dissenting opinions. The AB does know them, but in the early years it was not encouraged, probably rightly so. Now it is making its way more and more into AB reports, only a serious alternative reasoning is still lacking. That might well have come in due time, if only the AB had been given this time.
A perspective that is also sorely lacking is what it means for a member of LAD or the AB Secretariat to be an international civil servant for the WTO and the duties which that brings. That means that you are loyal to the WTO and its objectives, one of these being high quality dispute settlement without any preference for any Member. Being such a civil servant means that you have to be worried about consistency between panels among themselves (something that I was constantly worried about when serving as LAD director in order to avoid the impression that like cases where not treated alike) and between the panels and the Appellate Body (for the obvious reason of hierarchy). It means that you have to be elaborate in explaining the reasons for a certain outcome of the report and that you want to err on the safe side in your reasoning so that the party that loses will fully understand why. These are not quaint habits of the Staff of LAD and of the AB, they are inherent in their duties, but they are also widely shared by panel and AB members in my experience. They cannot be declared to be a weakness of the system, like the authors do; to the contrary, they are an indispensable part of its strength.
Similarly, it must not be considered impossible that the same loyal staff members, convinced by particularly valid arguments of a party before the panel that he or she serves, and after discussion with the panel’s members, comes to the conviction that a “precedent” is not or no longer tenable and that it is in the best interest of the WTO and its dispute settlement system to change it. He/she then helps the panel write a report that is full of good arguments as to why the AB should change its case law on the matter. The authors seemingly consider this inherently impossible and believe that the average staff member is a mindless word pusher who will repeat the exact same formula from an earlier AB report without any necessity. One may well wonder how it was possible then for anti-dumping panels and the AB to differ for such a long time on the question of the fairness of the zeroing technique in calculating dumping margins. Moreover, one cannot say that the AB is not adaptable to new insights; the evolution of the tuna/dolphin case law is an example that comes to mind.
The presumption that the average staff member is, to the contrary, usually a conscientious and neutral person, was also the reason why during the Uruguay Round it was self-evident to the negotiators that they had to continue the GATT system of Secretariat involvement in assistance to panels and why there should be no individual law clerks in the AB. Better that the AB should be assisted by people who had to be professionally neutral and give advice in the interest of the WTO dispute settlement system than that every AB Member would bring an assistant from his own country, who in all likelihood would have the same legal background as his/her boss. This would mean that the influence of the legal systems of the (semi-) permanent members of the AB (US, EU, China) would become even more entrenched. Now the AB gets more of a chance to be influenced by e.g. Japanese and Latin-American legal styles as well, if the representatives of these legal systems do not sit on the AB. People from those systems may well be on the support staff, but can be counted on to be loyal to the WTO first.
It was noted at the beginning of this review how the authors wanted to keep their distance from the battle between the US and other WTO Members. However, it is impossible to take dispassionate scholarship that far. First, because the scholarship may be too narrow, as I tried to argue above. Taking into account that next to international law and common law, civil law also had considerable influence on WTO dispute settlement rules would have shown that many of these so-called “failings” have their roots in well-established principles of civil law systems. They are not quaint or tyrannical or plucked out of thin air. They have been tested in existing systems of law. If they are considered too “European”, let the Members negotiate about that, but let us not pretend that this is the consequence of too much influence of the secretariat. Second, if one makes that much abstraction from the realities of the conflict that is going on, one runs the risk, as I have tried to demonstrate above, that one blames the panel and AB staff for problems largely caused by the Member States themselves. The authors thus create the impression, in the highly charged debate about the incipient disappearance of the Appellate Body, that they are planting a knife in the back of the WTO’s Legal Affairs Division staff and the Appellate Body Secretariat. That is neither what the people working there deserve, nor, I hope, what the authors intended.
P.J. Kuijper
Emeritus Professor of the Law of International (Economic) Organizations
University of Amsterdam.
[1] Available at SSRN: https://ssrn.com/abstract=3458872 or http://dx.doi.org/10.2139/ssrn.3458872
[2] “European” scholarship on the WTO is also Europe centered in many instances and seems to concentrate in particular on how the EU courts and the WTO ‘courts’ deal with those aspects substantive law, which are closely aligned in the two systems, since the EEC of 1958 originally borrowed, not to say copied, from for instance, the exceptions of Article XX GATT, and from Article III GATT on internal fiscal discrimination.
[3] It is common knowledge that the first drafts of the GATT dispute settlement rules were largely borrowed from the Swiss arbitration statute of the 1950’s.
[4] Actually the authors, at the end of their article and with little connection to the body of the text, also mention the possibility of nominating “stronger” judges as their last recommendation, but they persist in their belief that the support staff of panel even then needs to be curtailed. This is absolutely unnecessary in my view for reasons explained in the text.
[5] Which has the additional advantage that any sanctions against such a staff member could be tested before the Administrative Tribunal of the ILO, which also services WTO administrative cases.
