Essays in Honour of Valerie Hughes: Appellate Review, WTO Secretariat Handling FTA Disputes, and Much More

Nicolas Lamp recently put together a book honoring the great Valerie Hughes: "Reckoning and Renewal: The World Trade Organization and Its Dispute Settlement System at 30, Essays in Honour of Valerie Hughes." You can buy the book and/or download individual chapters for free here (having that latter option is great, and I applaud the publisher for allowing this!).

All of the chapters are good, but I'm going to highlight two of them in this post.

First, I feel obligated to do a little self-promotion for my chapter in the book. For WorldTradeLaw.net subscribers, we posted a paper back in 2023 that documents communications we found in the U.S. national archives on what USTR officials were saying about appellate review during the Uruguay Round talks. My chapter of the book, which is entitled "Building the Appellate Body: Lessons from the US Archives for Today’s Dispute Settlement Crisis," tries to turn that rough paper full of quotes into something a little more refined and readable.

Second, I wanted to mention the chapter by Scott Falls entitled: "Beyond the Shores of Lake Geneva: Does the WTO Secretariat Have a Role to Play in PTA Dispute Settlement?" A couple years ago, I made a brief argument that the WTO Secretariat could administer FTA disputes:

... the WTO could also provide administrative support for FTA disputes. Unlike with FTAs, there is a whole institutional process for dispute settlement at the WTO. FTAs use ad hoc FTA panels that have to work out a litigation process in each dispute with limited institutional support, and make use of one-time panel assistants. Instead of reinventing the wheel each time, FTA panels could rely on the WTO Secretariat and its existing process, which has been refined over many years of frequent use. Relying on the WTO Secretariat would also eliminate the need for each FTA to come up with a list of possible panelists, which has proven difficult at times. The WTO maintains an indicative list of panelists, and FTA parties could make use of it.

I didn't flesh out the issue in much detail though, so I was excited to see that Falls (1) has been thinking about this issue for a long time (at the suggestion of Valerie!) and (2) goes into more depth on it. He writes:

When it comes to administering international trade disputes, the WTO Secretariat is undoubtedly the most experienced institution. Panels are assisted by a team of lawyers, including those with specific expertise in the subject matter of the dispute, as well as technical experts. Secretariat staff are then involved in every stage of the panel process, undertaking numerous functions which include preparing the timetable and working procedures for the case, drafting an “Issues Paper” “summarizing the arguments, identifying and explaining the relevant legal principles, setting out different approaches to the dispute that the panel could take,” assisting with preparing questions to put to the parties, taking notes during hearings, conducting legal research, and supporting the panel in drafting all or parts of the panel report. On the administrative side, the WTO Secretariat acts as registry and takes care of a host of important logistical and organizational tasks, ranging from dealing with payments and expenses, to handling travel arrangements, to providing the necessary translation services, facilities, and technical support for hearings.

Given the comprehensive professional support that PTA panelists could benefit from by relying on the services of the WTO Secretariat, the prospect of outsourcing PTA dispute settlement administration to the WTO Secretariat appears in theory to be an attractive one. Many of the deficiencies in the administration of PTA proceedings outlined above could be resolved, as PTA panelists would benefit from the expertise of the Secretariat’s lawyers and technical staff and could rely on the capable support of clerical staff for assistance with the logistical, administrative, and financial aspects of the proceedings.

He also addresses both "legal impediments" and "practical challenges," noting that "the legal and practical barriers make what is an intriguing prospect an improbable one." I agree that both of these hurdles do exist. At the same, I think that if Members has strong feelings about this and wanted to pursue it, there would probably be a way to make it happen. Of course, everyone is kind of busy with other trade policy issues at the moment, and there aren't that many FTA disputes going on right now anyway, so this pipe dream of mine will probably have to wait.