This is a guest post by Werner Zdouc. The piece will be published in a forthcoming issue of the World Trade Review.
A universalist, shaping destinies, staying true to himself
Werner Zdouc
Frieder Rössler was a principled pragmatist, who throughout his career never compromised on his high intellectual and ethical standards. He strove for himself and others to thrive in intellectual and professional freedom, creativity, happiness, and as years passed, serenity.
Two universities, more than others, marked his academic upbringing: The university of Freiburg, Germany, renowned for its ordoliberal school in economics, shaped his economic thinking. The Fletcher School in Boston widened his horizon on political science, the rationality and emotionality of political processes and the policy aspects of law. Since his childhood most striking for his intellectual and professional drive was the catastrophic experience of his and his parental generation of Germany morally, economically and politically in shatters after Nazism. He often said to me, the mission of his generation was to work for a multilateral system built on rules, ethical standards, human rights, social welfare, equity and inclusiveness so this could never happen again. Early in his life he was convinced that he had to leave Germany to learn abroad from other political, legal, economic and cultural systems, which was somewhat unusual at this period of the country’s reconstruction.
Frieder mastered legal science and economic theory but equally tried to explore and question political paradigms and to comprehend both rational and irrational realities of political processes and international negotiations. Fully mindful of these realities throughout his international career, he was convinced being passive was not an option. Relentlessly, he tried, wherever he could, to shape these processes and make them more driven by legal and economic science, facts and data, and fundamental rights standards. He was not content to be a witness or bystander of change, he felt a mission to actively co-shape the transition from the GATT 1947 to the WTO multilateral trading system and at the Advisory Centre for WTO Law to empower developing and least-developed countries to take their destiny in their own hands. When he felt he had reached the limits of steering the system and making a difference in a function he held, he did not hesitate to jump ship, work for a different international organization, join academia or engage in capacity building. He left a mark in whatever he touched.
It is generally known but nevertheless under-researched mystery of the WTO Marrakesh Agreement that some of its most powerful features seemed not to emerge from thorough reflection and fully transparent, inclusive discussions. By the end of the Uruguay Round negotiations, the single-undertaking idea was of course on the table, but quite a number of countries were convinced they would be able to pick and chose from the many covered agreements those that served their interests most, while abandoning those agreements that they considered obstacles to economic development. Had the single-undertaking approach been a certainty throughout the Uruguay Round, many developing countries and LDCs would have approached the negotiations differently, invested more time and efforts in the discussion process and insisted on different rules for key agreements like TRIPS or Agriculture. Some claimed they had not been fully aware that WTO Members (with extremely few plurilateral exceptions) would not be able to pick and choose from the agreements resulting from the Uruguay Round.
Like India, also other developing countries thought of a creative way out: Invoking the non-discrimination clauses of GATT 1947 would allow them not to sign up to some or most WTO covered agreements, while being entitled to the conferral of all the benefits of the WTO Uruguay Round results by the trading partners ratifying the full package, by virtue of GATT 1947. In other words, Members not signing up to all Uruguay Round agreements could take a free ride on the commitments and obligations which Members ratifying all Uruguay Round agreements would be required to extend on a non-conditional MFN basis. The consequence of those attempts are known. With Frieder’s expert advice as GATT Legal Division Director, a legal solution was found whereby GATT Contracting Parties and Uruguay Round negotiating parties adopted all the results of the Round as a single package, including GATT 1994 being a part of the covered agreement. At the same time, they terminated the GATT 1947 to prevent such free-riding. Some developing countries felt trapped and protested such “coup” by the powerful countries that deemed the WTO covered agreements an inseparable package.
When I joined the WTO Secretariat in September 1995, this was still the talk of the day. Frieder was profoundly convinced that this was legally, politically and historically the right solution but he was visibly affected by the reaction of some Members. For him this was not a matter of using a legal construct to help the powerful impose their will through a single package of agreements; for him this was innovative institution-building of historic dimensions. In the “window of opportunity” period right after the fall of the iron curtain the unique chance arose for the world trading system to take a big leap forward towards bindingness and rule-orientation. In the longer run, this would protect developing countries and the less powerful better than ad hoc opting out from an innovative, rule-based package of agreements confronting the realities of trade in goods, services and trade-related intellectual property rights towards the end of the 20th century. Perennializing the provisional application of GATT 1947 with partially grandfathered protectionism when the ITO failed was in Frieder’s conviction ultimately much more damaging for developing and least-developed countries.
Frieder was a relentlessly creative, visionary thinker, questioning and reinventing constantly his viewpoints. Contrary to other contemporaries, he did not lose his youthful approach to intellectual curiosity as he aged and advanced professionally. He never stopped thinking about the challenge of reconciling – within an internationalized binding system – trade liberalization with the pursuit of legitimate “non-trade” objectives by governments and citizens. Long before the term “regulatory space” was coined, having spent all of his GATT life fostering rule-orientation through dispute settlement and assisting in rule-making by negotiators, he often said when the Uruguay Round outcomes started taking shape, that the exceptions of GATT Article XX was not sufficient to resolve the regulatory challenges Member governments and societies faced in the 20th century. He felt the objectives listed were too limited and the burden of proof applicable under exceptions too burdensome. For him, the Tokyo Round Technical Barriers to Trade Agreement was a first step in the right direction, but as the breadth and depth of WTO rules gained momentum through the Uruguay Round, his dialectic mind prompted him to incessantly look for ways to preserve regulatory autonomy.
Just before the WTO Agreement had entered into force, Frieder passionately embraced the aims and effects test developed by the panel in the US - Taxes on Automobiles case. Some critics at that time wondered why this approach had been proposed when US Congress deliberated on whether to approve or reject the WTO Marrakesh Agreement with its impressive number of covered agreements and debates centered around the superpower’s regulatory sovereignty. It is common knowledge that kind of “aims and effects” was almost passionately rejected by subsequent panels and the Appellate Body. I am nevertheless convinced that Frieder (and those who thought alike) anticipated, if not steered, subsequent developments in the jurisprudence. They asked the right question, being mindful that increased judicialization and adequate regulatory space are two sides of the same coin. There were good reasons for rejecting the test endorsed by the US-Autos panel, but the underlying rationale may well have paved the way for the legitimate regulatory distinction test under the TBT agreement and other twists and turns in Appellate Body jurisprudence under GATT Articles I, III and XX. In Japan-Alcohol, EC-Bananas III and later, the Appellate Body eloquently voiced criticism rejecting the test under the GATT and GATS non-discrimination clauses, much to Frieder’s chagrin. However, the Appellate Body changed course, inter alia, in EC-Asbestos and Dominican Republic-Cigarettes, realizing it may have gone too far. It modulated its prior approach largely excluding regulatory motivations and design under the less-favorable treatment step of the analysis. For example since the Dominican Republic-Cigarettes case, measures that did not distinguish between products on the basis of the origin benefited from more simplified scrutiny in discrimination claims. In EC-Asbestos, the Appellate Body compared the entire categories of imported with domestic products and widened the horizon of analysis of consumer perceptions to include regulatory motivations and design. In this way, raising such concerns was no longer limiting to justification under the exceptions of Article XX. Frieder felt vindicated, but still struggled with the Appellate Body’s caution in refining its jurisprudential course.
The US-Autos Gas Guzzler tax case was the lawyers’ talk in town when I appeared for my job interview in 1994 in Geneva. Frieder impatiently drew the questioning to hearing my opinion on the US-Autos panel report. I expressed the way the aims and effects test had been designed and executed by the panel under the analytical steps of likeness and less favorable treatment was suboptimal. The test seemed twice to perform very similar analyses of aims and effects, thereby making the two-step analytical process under national treatment, and importantly, also the analysis of objectives and the way challenged measures were implemented under Article XX and its chapeau partially or wholly redundant. I raised my criticism but Frieder – at least in the hiring interview scenario – was carefully listening and did not insist on being right that this test was for him the solution to the production and processing (PPM) problem and the limited and arguably incomplete list of legitimate policy objectives in Article XX. He wanted to hear how I would plead and stand my ground based on my line of reasoning in addressing his concerns about regulatory space in alternative ways under a “traditional” line of analysis under GATT Articles I, III and XX. Despite such disagreement and me being inexperienced, fresh from graduate law school he hired me eventually. But when I finally joined the Legal Affairs Division (LAD), he had already - literally - sailed away on his boat across the Atlantic to join Georgetown university.
Frieder told me he strongly felt it was the right thing to hire staffers with their own legal mind, regardless of the extent or nature of prior experience. While he considered GATT-insider knowledge an asset, it was far less important to him than creative legal analytical and genuine oral and written argumentation. And he had lived what he said. When I joined, I was amazed by the unique characters and brilliant minds populating the small Legal Division at the time. His successor as the director, Bill Davey at times also seemed shell-shocked by the collection of characters Frieder had bequeathed to him, and I don’t hesitate to count myself in here. Both Bill and Frieder led this team with serenity, passion, intellectual curiosity and self-confidence. Frieder had surrounded himself with a range of extremely different personalities, some stubborn, others not, some great drafters, others not, some great thinkers, others not, some policy-prone, others principle-oriented, some academically interested, others pragmatic and suspicious of too much academic tendency in the division. In management class, they tell to beware of the mistake that supervisors often tend to hire their likes, when managers should hire staff that complement their skills and those of incumbent staff. Frieder certainly followed this advice, hiring the broadest range of different, creative, sometimes outright peculiar legal minds and practitioners, because his thirst for intellectual debate and incessant self-reflection would be best served in a professional environment of diversity, creativity, modesty, passion and innovation. This legacy undoubtedly strongly influenced me later when striving to build a similar kind of intellectually free and stimulating environment at the Appellate Body Secretariat.
The diverse LAD composition stretching vast skills and experiences would in Frieder’s view strongly benefit those participating in dispute settlement proceedings and ultimately the WTO Membership at large. Frieder treated ambassadors and delegates not differently than his staff and panelists. For him, it was no doubt indispensable to know what different Member representatives thought, but this neither constrained his thinking, nor determined his actions; he rather listened to them with intellectual curiosity, often taking their wishes as interesting starting points for debate, much to the surprise, and sometimes exasperation, of delegates, especially those from the most powerful Members, who were inspired by the mantra of the Member-driven organization. But those delegates could also be sure that Frieder would not lightly agree, and rather reflect, and stimulate debate with other delegates holding opposing views. This was not the easiest way to establish his strong reputation of independence, coupled with competence, foresight and serenity, but it was effective in building his unmatching standing among Members and at the Secretariat.
Some most powerful Members though, were less impressed with so much freedom of thought, panel reports perceived as unduly promoting trade liberalization and insufficiently accounting for fair trade concerns. When I last met Frieder in spring, he admitted he questioned himself when the responsibilities for dispute settlement were divided and the Rules Division was created with the competence of handling trade remedy cases, servicing relevant committees and engaging in capacity building with national trade remedy authorities. It was staffed with civil servants of certain trade remedy authorities and specialized practitioners with great depth but less breadth of knowledge, sometimes righteous and with political acumen, different from Frieder’s way of composing a team. The price for this structural change was increased numbers of unadopted panel reports under GATT 1947 and Tokyo Round Codes. In hindsight, Frieder said he came to terms with this decision of senior management and Members because being taken out of line of fire on trade remedy disputes, he could experiment and break new ground in other areas of trade law and dispute settlement, publish and pursue academic interests, which eventually led him to academia.
When Frieder felt he had done his job supporting the creation and transition to the WTO and the new DSU at the Legal Affairs Division, he quit for academia and then for the new Advisory Centre for WTO Law (ACWL). The ACWL was the epitome of his cherished career, at an age when others enjoy calm retirement. He often said that none of his previous positions prompted so much rewarding feelings and positive feedback as empowering developing and least-developed countries. Frieder again hired a diverse, multi-skilled and strongly motivated group of lawyers passionately advancing the ACWL’s mission and vision. It is fair to say that Frieder “made” the ACWL, building its reputation from scratch, investing his own personal stature in the new venture. The ACWL enormously benefited from Frieder’s reputation of competence, independence and wisdom in its first years. While nobody (openly) questioned the need for capacity building and ensuring that developing countries should be at par in dispute settlement proceedings, some donor governments were criticized openly by others why they would fund and sponsor an institution that would train developing countries to sue them. Frieder’s answer was short and sweet: since developed countries would undoubtedly always strive to act consistently with WTO law, there was no reason to fear developing countries having a better (legal) voice. To the contrary, they would know better how to act consistently with WTO law in litigation and negotiations.
When only few dispute settlement cases were initially raised before the ACWL, Frieder temporarily shifted this new-found mission in life to focusing on expert legal opinions advising Member governments. Thanks to Frieder’s making, the ACWL first made its name by being diametrically different from a litigative law firm, sometimes telling its clients to refrain from initiating a panel case and instead autonomously repairing WTO-inconsistent domestic regulation. This impressed ambassadors and delegates, even the Indian ambassador at the time, who once told me, he tried to explain (not always successfully) to capital and constituencies how many millions they had saved by following Frieder’s advice not fighting lost cause cases. Maybe precisely because the ACWL and the legal advice given was often non-litigious and not profit-maximizing, it was well-regarded and the Centre built the unmatched reputation it enjoys today.
During my final visit to Frieder last spring in Perroy overlooking Lake Geneva he said that sailing epitomized what he cared most about, ultimately, freedom: He spoke of the freedom to decide when, on which pathway, and which destination to reach – in sailing and in legal discourse. He was the only visiting professor who ever sailed on boat across the Atlantic to Georgetown University. Developing this image further, sitting on his favorite bench overlooking vineyards, lake and the port with his boat, Frieder said, sailing demonstrates that the freedom the ocean promises is not without limitations. When currents, winds and weather change, the breeze turns into storms, the captain may hold against, but ultimately has to oblige to what cannot be controlled. Though, this is not the end of the story for a seasoned captain: what appears unpredictable and uncontrollable to the layperson, if the captain studies navigation, technology and meteorology, he can learn to influence and master what seems at first uncontrollable: humanity has learned to sail even against the wind. But this takes skills, competence, experience, motivation, stamina and serenity. Frieder was convinced what is true for a captain navigating a boat, is also true for the director of a division, institution or system.
Sailing gives you the time to think, when winds recede and calm reigns the ocean. Then there is plenty of opportunity to reflect and question entrenched viewpoints. Pristine waters and expanses of the ocean liberate the mind to think outside established patterns, to break new innovative intellectual grounds. But when the tides turns and storms take over, the captain needs to turn multi-faceted reflections quickly into effective action, implement conclusions, and achieve instant, potent results, or capsize and drown. True for the sailor and for the WTO.
Frieder, in my belief, will somehow continue doing exactly that, inspired by the spirituality he found again in recent years at the interreligious Romainmôtier monastery that for more than thousand years propagated from the Jura mountains values in symbiosis with Frieder’s.
Requiescat in pace, they say in Latin. Se vidimo nad zvezdami (we’ll see each other again above the stars) we say in Slovenian.