This is a guest post by Ernst-Ulrich Petersmann, emeritus Professor at the European University Institute, Florence (Italy), and legal consultant at the World Trade Organization (Geneva); former professor of European law at Geneva University, and of international economic law at Geneva’s Graduate Institute of International Studies
Frieder Rössler (1939-2024): International civil servant, academic teacher, and Socratic explorer
Frieder and I met in 1981 in the GATT Secretariat following my appointment as first ‘assistant legal officer’ ever employed by the GATT Secretariat, and Frieder’s return to his GATT office (as Secretary of GATT’s Balance-of-Payments-Committee) from an academic leave at Washington University. We realized commonalities in our careers: both of us had studied law and economics at Freiburg University and at Geneva’s Graduate Institute of International Studies; we admired the ‘Austrian school of economics’ (like G.Haberler, F.A.Hayek) and ‘constitutional economics’ (like J.Buchanan, J.Tumlir); we had both published on international monetary, trade and economic development law using our professional experiences in international organizations like the World Bank. As both of us were sailors (notwithstanding my lack of ambition to emulate Frieder’s repeated crossings of the Atlantic and the Mediterranean Seas in his own yacht together with his family) and enjoyed our GATT offices overlooking Lake Geneva, we started a tradition (lasting more than four decades) of joint ‘philosopher walks’ along the Lake of Geneva discussing our shared belief in the need for transforming the ‘anti-legal pragmatism’ cultivated among GATT diplomats into a rules-based multilateral trading, legal and dispute settlement system. Yet, our two worldviews often differed, which transformed our regular discussions into mutual learning processes: both of us admired Hayek’s theory of knowledge (e.g. using markets and competition as decentralized information, coordination, sanctioning and ‘cybernetic steering mechanisms’) and Hayek’s arguments for ‘evolutionary constitutionalism’ (e.g. in his books on The Constitution of Liberty and his three volumes on Law, Legislation and Liberty); but Frieder had been less engaged than myself in the successful ‘construction’ of European integration law and of its ‘ordoliberal foundations’ justifying systemic legal limitations of ‘market failures’ (e.,g. through competition, environmental and social rules and institutions), ‘governance failures’ (e.g. to protect human rights, democratic input-legitimacy and republican output-legitimacy of multilevel governance of public goods), and ‘constitutional failures’ (e.g. justifying Europe’s multilevel democratic, republican and cosmopolitan constitutionalism protecting transnational public goods like Europe’s common market, ‘social market economy’ and ‘democratic peace’).
Frieder as an international civil servant
Frieder belonged to the post-1945 generation of young Germans traumatized by two World Wars and committed to public service protecting human rights, constitutional democracy and transnational rule-of-law among ‘open societies’. As his professional work inside the World Bank at Washington had not satisfied these ambitions, he returned to Geneva’s Graduate Institute of International Studies and accepted an offer by Professor O.Long to work inside the GATT Secretariat. Like the first GATT Director-General W.White, the second GATT Director-General Long had been a lawyer emphasizing the ‘limits of GATT law’ and the need for ‘pragmatic dispute settlements’ in view of the only ‘provisional application’ of the General Agreement on Tariffs and Trade (GATT 1947). After the US Congress had refused ratifying the 1948 Havana Charter for an International Trade Organization (including GATT 1947), the 1947 Protocol on the Provisional Application of GATT 1947 continued to include ‘grandfather clauses’ exempting legally binding ‘existing legislation’ from the GATT disciplines, thus creating only a legally weak framework for reciprocal trade liberalization and politicized ‘trade diplomacy’ subject to GATT-inconsistent trade legislation and power politics (like ‘voluntary export restraints’ for cotton, textiles, agricultural and steel products). When the parliamentary ratification and entry into force of the 1979 Tokyo Round Agreements transformed this ‘soft law’ into a ‘hard law’ trade regime with increasing criticism of its ‘pragmatic diplomat’s jurisprudence’ and legally inconsistent GATT dispute settlement findings, the third GATT Director-General A.Dunkel succeeded in persuading the major trading countries to consent to the establishment of a GATT Office of Legal Affairs in 1983. An experienced GATT diplomat (A.Lindén) was nominated director, and Frieder and myself offered legal advice as legal counsellors in GATT dispute settlement panels (e.g. in the drafting of their legal findings) and, since 1987, in the Uruguay Round Negotiating Groups mandated to elaborate the new WTO agreements, the WTO Dispute Settlement Understanding, and the transition from the old GATT to the new WTO legal system. As the first Director of the new GATT Legal Division established in 1989 as well as of the new WTO Legal Division since 1995, Frieder was rightly credited as one of the intellectual founding fathers of the successful GATT and WTO dispute settlement systems and related jurisprudence of GATT and WTO dispute settlement panels.
Cooperating with Frieder inside GATT’s Legal Office and Legal Division remained an intellectual adventure based on mutual trust, frank criticism and decentralized, independent work of the small group of GATT lawyers assisting GATT dispute settlement panels, other GATT institutions and negotiating groups. The dozens of GATT and WTO agreements include numerous rules with indeterminate terms and principles (like GATT Article XXIII:1 differentiating between ‘violation complaints’, ‘non-violation complaints’ and ‘situation complaints’ with diverse state responsibilities and dispute settlement procedures). Interpreting and clarifying indeterminate trade rules and the more than 60’000 pages of WTO law coherently required good knowledge of general international law (like the customary rules of treaty interpretation and state responsibility), which most GATT/WTO diplomats lacked. The political pressures leading to the establishment of a new ‘Rules Division’ in 1991 (notably for administering anti-dumping, subsidy and countervailing duty rules and disputes) curtailed the jurisdiction – and politicization - of the GATT Legal Division; the establishment of the WTO Appellate Body in 1995 and its ‘appellate jurisprudence’ changed the dynamics of the WTO dispute settlement system and promoted its progressive ‘judicialization’. Frieder’s independent and self-assured leadership and cooperation with both the Rules Division and the Appellate Body ensured mutual synergies promoting the transformation of the GATT/WTO dispute settlement system into the world’s most frequently used, worldwide dispute settlement system. When Frieder retired from the WTO and accepted to serve as Executive Director of the Advisory Center on WTO Law at Geneva (2001-2015), he enjoyed serving the WTO legal and dispute settlement system from a different perspective enabling Frieder to devote also more time to teaching WTO law and policies to trade diplomats from all over the world.
Frieder as an academic teacher and professor of law
Frieder regularly combined his practical work as international legal advisor with academic teaching of students, for instance as visiting professor at the University of Lyon and during repeated ‘academic leaves’ at George Washington University and Georgetown Law School in Washington. As director of the GATT and WTO legal divisions, he cultivated close contacts with all academic researchers in the field of international trade law and policies, notably with his friends Professors Robert Hudec and John Jackson from the USA. During his work in the World Bank, as secretary of GATT’s Balance-of-Payments Committee, and as director of the GATT and WTO Legal Services, Frieder published a large number of articles and book contributions criticizing problematic legal practices and ideologies (e.g. for a ‘New International Economic Order’). His close cooperation with GATT Director-General Arthur Dunkel and with the successive directors of GATT’s Economic Research Division (like J.Tumlir, R.Blackhurst) prompted Frieder to emphasize the ‘Constitutional Functions of International Economic Law’ for improving domestic policy-making, as illustrated by the legal ranking of ‘optimal policy instruments’ in some GATT/WTO agreements, or by the ‘domestic policy functions’ of international legal guarantees of equal freedoms, non-discriminatory conditions of competition, transnational rule-of-law and national sovereignty for promoting transparent policy-making, non-discrimination, legal accountability, welfare-enhancing policies and rule-of-law protecting general consumer welfare.[1] During his studies of law at Freiburg University, Frieder had not attended the economics lectures of Professor F.A.Hayek; he never perceived himself as a disciple of the ordoliberal Freiburg school of law and economics. His views on the need for protecting democratic input-legitimacy and republican output-legitimacy in trade policies (e.g. by judicial protection of rule-of-law in conformity with the WTO agreements ratified by parliaments) were rather informed by insights from ‘constitutional economics’ and ‘public choice’ explanations of the risks of welfare-reducing interest group politics redistributing domestic income through discriminatory import restrictions undermining democratically ratified trade agreements.[2]
In his recent book on Vienna – How the City of Ideas Created the Modern World (2024), the historian R.Cockett acknowledged the historical contribution of Frieder to the transformation of the ideas of G.Haberler and F.A.Hayek for a liberal trading system into GATT/WTO law. Contrary to Q.Slobodian’s description of Frieder (in his 2018 book on Globalists – The End of Empire and the Birth of Neoliberalism), Frieder was never a ‘neoliberal advocate’ for a self-regulatory market order but shared the ordoliberal belief in the need for legally limiting the ubiquity of market failures, governance failures and constitutional failures so as to better protect citizens and their human rights. Many international trade lawyers and trade diplomats openly acknowledge their intellectual debt to Frieder’s deep insights into the economic, political and legal logic underlying world trade law. As the WTO’s Centre William Rappard and Geneva’s Graduate Institute of International Studies are located only a few hundred meters apart, Swiss trade diplomats (like W.Rappard, O.Long, A.Dunkel, F.Blankart) and GATT/WTO officials (like Frieder) promoted a vibrant ‘Geneva school of ordoliberalism’. The history of this close intellectual cooperation in creating the post-war world trading system remains to be written. After Frieder’s death, finding an informed author will become more difficult.[3]
Frieder as a ‘Socratic explorer’
Most people having discussed with Frieder recall his Socratic method of explaining problems by asking pertinent questions and demonstrating why the arguments of his interlocutors may not be fully convincing. Similarly, when Frieder was informed of his illness, he practiced Socrates’ Stoic approach by accepting what he could not change; and by detaching from other life projects (like his hope to follow the example of his father who died at the biblical age of 99). As a sailor, Frieder loved his personal freedom to cross the Mediterranean Seas with his family on his sailing boat. The family went ashore also on the island of Ithaca, the home of the legendary Greek king Odysseus; Frieder’s eldest daughter Tina called her son ‘Ulysse’, and Frieder undertook his last sailing trip together with Tina laying to rest some of their earlier family disputes. Homer’s epic poem ‘The Odyssey’ – describing the conflict between Odysseus’ desire to return to a happy family life and the forces impeding him to realize this goal during many years – symbolizes also Frieder’s heartbreak following his divorces from his first and second spouses; marrying Kristina Schellinski enabled Frieder to enjoy a happy family life during his last two and a half decades in their wonderful home at Perroy. In April 2024, in the vineyard in front of their home, Frieder and I continued our last discussions on a little wooden bench. Breathing the fresh wind, overlooking the Alps and the Lake of Geneva, and ‘reconnecting’ with this uniquely beautiful landscape reflecting all building elements of life helped us understand the Latin term ‘re-ligio’ underlying the word religion. Frieder felt privileged by the beauty and harmony surrounding his family home at Perroy, and by his decades of exploring and promoting sustainable development in the near-by Centre William Rappard. He was an intellectually inspiring friend and engaged advocate for international rule-of-law and more social justice, albeit fully aware of our human weaknesses and disagreements in constructing a liberal rules-based international order. Frieder’s kindness, intellectual curiosity and courage to defend his views for making this world a better place will be missed by all of us. My last personal advice to Frieder was to listen to, and reflect on, the wise ‘Anthem’ sung by Leonard Cohen a few years before his death:
‘The birds they sang at the break of day. Start again I heard them say. Don't dwell on what has passed away or what is yet to be. Ah, the wars they will be fought again. The holy dove, she will be caught again. Bought and sold and bought again. The dove is never free. Ring the bells that still can ring. Forget your perfect offering. There is a crack, a crack in everything. That's how the light gets in.’
Frieder had the courage to ring many bells; he enjoyed seeing the light entering through the many cracks in our imperfect human lives.
[1] Cf Frieder’s seminal contribution on The Constitutional Function of the Multilateral Trade Order to: M.Hilf/ E.U.Petersmann (eds), National Constitutions and International Economic Law (1993), 53-62 (based on a joint publication by A.Dunkel and F.Rössler in French language and citing publications by GATT’s former chief economist J.Tumlir explaining the economic theory of ‘optimal intervention’ justifying the legal ranking of policy instruments in GATT law). As market failures and governance failures can be corrected most effectively by non-discriminatory domestic regulation, GATT and WTO legal restraints on non-transparent, discriminatory trade policy instruments tend to strengthen democratic constitutionalism rather than to circumvent democracy; nor does GATT law impose laissez faire policies and free trade, or prevent social policies redistributing income. As GATT rules regulate primarily conflicts of interests within - not among – nations, their ‘constitutional functions’ can be rendered more effective by making precise and unconditional GATT rules legally and judicially enforceable inside domestic legal systems.
[2] Rössler’s conception of GATT/WTO law was strongly influenced by GATT’s chief economist J.Tumlir, who explained the need for protecting non-discriminatory trade and market competition through democratic constitutionalism and multilateral trade and economic integration rules limiting market failures, governance failures and constitutional failures. For a summary of Tumlir’s work on ‘economic policy as a multilevel constitutional problem’ see the contributions by H.Hauser and E.U.Petersmann to: ORDO Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft 39 (1988), 219-255 (in German with English summaries).
[3] On the ‘Geneva school of ordoliberalism’ promoting an interdisciplinary ‘Geneva consensus’ for political, legal and economic cooperation among the UN and GATT/WTO institutions at Geneva see E.U.Petersmann, Transforming World Trade and Investment Law for Sustainable Development (2022, chapters 4-5); P.Lamy, The Geneva Consensus. Making Trade Work for All (2013). William Rappard’s initiatives for founding Geneva’s Graduate Institute of International Studies (IHEI, 1927), for inviting Austrian economists and lawyers (like von Mises, Haberler, Hayek, Kelsen), German ordoliberals (like Röpke), British liberals (like Gerard and Victoria Curzon) and other members of the Mount Pèlerin Society to teach at the IHEI on the need for promoting liberal international trade, human rights and labor laws and policies (e.g. as explained in Rappard’s book on The Future of Peace according to Cordell Hull, 1944) were continued since the 1960s by the Swiss GATT Directors-General O.Long and A.Dunkel, and by other Swiss politicians (like F.Blankart) and lawyers (like T.Cottier), for instance by promoting the teaching of GATT economists (like J.Tumlir, R.Blackhurst) and GATT lawyers (like E.U.Petersmann) at the IHEI. The ‘Geneva ordoliberals’ cooperated closely with other Swiss institutions like the University of Geneva, the World Trade Institute at the University of Bern, and the Institute for International Economic Relations at the University of St. Gallen.
