The state of Washington has sworn in its first Native American Supreme Court justice, Raquel Montoya-Lewis. At a press conference announcing her appointment, a reporter asked Montoya-Lewis, “What do you see as the biggest problem with implicit bias in the courts right now?” She replied:
The biggest hurdle is getting people to understand that we all bring biases to our decision-making, that it’s across the board — I do it, you do it, we all do” ... the first place we have to start: to recognize that it’s not something to be embarrassed about, but something to recognize.
The most perilous moments for Appellate Body Members to display their biases are when they have to interpret clauses where rights and obligations are not clearly spelled in the WTO Agreements. Although they are aware that their interpretations “cannot add to nor diminish the rights and obligations” agreed by the Members, they have to clarify through a contextual analysis rights and obligations that are sometimes left undefined in the WTO Agreements. For example, zeroing is not explicitly forbidden but it is also not explicitly allowed, the expression "public body" is not defined in Article 1 of the SCM, etc.
As we all know, this contextual analysis is the ideal situation for displaying biases. Every clever lawyer can easily find two or three contextual analyses leading to different outcomes and will chose the one leading to an outcome comforting his/her bias.
In the context of the next DSU reform, it is important that AB members recognize that they, too, have biases that lead sometimes to choosing a "bad" (from the perspective of the party unhappy with the ruling) contextual analysis reflecting these biases.
What are possibly these biases? I see two theoretical candidates: 1) a bias against the Member using trade defense tools 2) a bias favoring developing countries. I am sure that readers would have noticed other candidates. Let me underline that these biases play a role only in situations with undefined rights and obligations in WTO Agreements. When rights and obligations are clearly spelled, the biases do not manifest themselves.
NB: The role of the Secretariat could also manifest itself in theses biases.The "faceless" Secretariat is certainly concerned to satisfy the majority of Members.