The Rule of Law or the Rule of Lawyers?

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The Journal of World Investment & Trade

Law • Economics • Politics


I J.H.H. Weiler, The Rule of lawyers and the Athos o% Diplnrnat,: Reflections on W'r'« Dispute Settlement, in R.B. Porter, P. Sauve, A. Subramauian and A. Beviglia-Zampetti (eds.), Efficiency, Equity, Legitimacy: The Multilateral Trading System at the Millcnh4rn, Brookings Institution Press, Washington, D.C., 2001, p. 334. 2 Sec Aric Reich, From Diplom<1cy to Law: Thejuridification oflnternatiorral Trade Relations, NorthwesternJournal of Intrrnational Law and Business 17, 1996-1997, p. 776. ! Claus-L)ieter Ehlermaun, Sorne Personal Experierrces as Member 0{ thy Appellate Body n(the Wto, Policy Paper Rsc 02/9 of thc Robcrt Schuman Centre for Advanced Studies, European University Institute, Florence, Italy, at p. 44.

4 Ibid., at pp. 9-t (). 5 Workitig Procedures for Appellate Review, WT/AB/Wl'/1, 15 February 1996; as amended by WT/AB/WP/3, 28 February 1997; as amended by WT/AB/WP/4, 24 January 2002.

6Supra, footnote 3, at p. 10. 7 Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:1, p. 3. 8 For descriptions and commentaries on some of these important rulings, see Ehlermann, supra, footnote 3; Debra P. Steger and Simon N. Lester, Wro Dispute Settlement: Emerging Practice and Procedure in Decisions or the Appellate Body, in P. Ruttley, 1. MacVay and M. Weisberger, Due Pracess in WTO Dispute Settlement, Cameron May, London, 2001, pp. 119-140; Debra 1'. Steger and Susan M. Hainsworth, World Trade Organization Dispute Settlement: The First Three Years, 1 Journal) of International Economic Law, 1998, p. 199; Florentino P. Feliciano and Peter L.H. Van den Bossche, The Dispute Settlement of the World Trade Organization,: Institutions, Process and Practice, in N. Blokker, and H. Schermers, (eds.), Proliferation of International Organizations — Legal Issues, Kluwer Law International, The Hague, 2002, pp. 297-350; reprinted in Philippine Law Journal, Vol. 75, No. 1, September 2000, pp. 1-46. 9 See, in particular, Frieder Roessler, Are the Judicial Organs of the W1'O Overburdened? in Porter et al., supra, footnote 1, pp. 227-333; Claude E. Barfield, Free Trade, Sovereignty, Uemocracy: I7�e Future of the World Trade Organization, AEI Press, Washington, D.C., 2001. For a response to those claims, see William A. Davey, Has the WTO Dispute Settlement System Exceeded its Authority? 4 Journal of International Economic Law 1, March 2001, p. 79; Robert Howse, The Most Dangerous Branch? W1'O Appellate Body jurisprudence on the Nature and Limits of the Judicial Power, in Thomas Cottier and Petros C. Mavroidis (eds.), T7te Role of the judge in International Trade Regulation: Experience and Lessons for the WTO, Proceedings of the World Trade Forum, Vol. 4, University of Michigan Press, Ann Arbor, 2002, pp. 11-41; Debra P. Steger, Book Review: Claude E. Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Orqanization, 5 Journal of International Economic Law, forthcoming (2002). �° Only the parties to the dispute may appeal issues of law or legal interpretation to the Appellate Body; Dsu, Article 17.5. And appeal they have! Dr. Ehlermann has eloquently emphasized that, when an issue is appealed, the Appellate Body is compelled under Article 17.12 of the Dsu to address the issue; it does not have the choice to decline to rule on a particular issue, contrary to the views of some commentators (see, for example, Barfield, ibid.). Ehlermann, supra, footnote 3, at pp. 36-37.

11 Appellate Body Report, European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS/135/R, adopted 5 April 2001. 1. 12 Dsu, Article 17.9.

11 Appellate Body Report, United States-Measures Affecting Imports of Woven Wool Shirts and Blouses (United States-Wool Shirts and Blouses), WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, DsR 1997:1, p. 323. 14 Ibid., at p. 335. 15 Appellate Body Report, European Communities-Regime fiJr the Importation, Sale and Distributinn or Bananas (EC-Bananas), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:11, p. 591. 16 Appellate Body Report, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products (India-Patent Protection), WT /DS50/ AB/R, adopted 16 January 1998, DsR 1998:1, p. 9, at para. 94.

r� J.H.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats-R�flections on the Internal and External Legitimacy of Wro Dispute Settlement, 35 J.W.T. 2, April 20m'. pp. 191-207, at p. 193. 1M For a recent debate on the subject, see Robert Howse and Kalypso Nicolaidis, Leqitimacy and Global Gnvernance: Why Cotistitiitiotializitig the Wto is a Step 'Ibo Far (with conmients by Steve Charnovitz and Gary N. Horlick); Robert O. Keohane and Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy (with comments by Robert E. Hudec and Daniel C. Esty); and Frieder Roessler, Are theJudicial Organs of the WTO Overburdened? (with commcnts by William J. Davey), all in Porter et al., supra, footnote 1.

Keohane and Nye, ibid., at pp. 281-282. 211 Ibid., at pp. 290-291. 2' Comment by Robert E. Hudec, supra, footnote 18, pp. 295-300, at p. 298. 22 Article 3.2 of the Dsu sets out the purposes of WTO dispute settlement as, inter alia, "... to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agrecmcnts in accordance with customary rules of interpretation of public international law." " z3 Thomas M. Franck, The Power 0{ Legitimacy among Nations, Oxford University Press, Oxford, U.K., 1990, at p. 24. For an excellent review of Franck's book, see Jose F. Alvarez, The Quest for legitimacy: An Examination of The Power of Legitimacy Among Nations by Thomas M. Franck, 24 Int'l. L. & Pol., pp. 199-267.

z4 Franck, ibid., at p. 19. 25 Ibid., at p. 25. 2" Ibid., at p. 49. 27 Ibid., at p. 61.

2X Weiler, supra, footnote 1, at p. 341. 29 Robert Howse, Adjudicative Legitimacy and Treaty Interpretation in International Trade The Early Years of WïojllrispYl/denœ, inJ.H.H. Weiler (ed.), The Ell, the W7'o and The NAF'IA: Towards a Commoll Law of International Trade? Oxford University Press, Oxford, U.K., 2000, p. 35, at pp. 41-42. 30 [bid., at p. 43. 31 yid. 32 Another extremely important aspect of legitimacy is the extent to which the rule-making system functions effectively in making new rules or in correcting excesses of the adjudicative system. This is a topic for another paper. See Ehlermann, supra, footnote 3, at pp. 3&-41.

33Supra, footnote 15, p. 591. 34 Ibid., paras. l(�-12.

.1; Advisory Centre on WTO Law, Reyort on Operations, July 2001 to June 2002, p. 5. 3h Ibid., pp. 9-10.

31 Confusion can sometimes arise especially in cases involving one major private-sector interest on each side. In such cases, counsel who represent, and are paid by, a private-sector client may sometimes play a double role as a part of the government's delegation in the proceedings.

'" This has occurred especially in cases in which particular firms' interests were prominent, such as Brazil- Expart Financing Programme for Aircraft (Brazil-Aircraft), DS46, 21 June 1996; Ct1/Iada--Measures Effecting the Export of Civilian Aircraft (Canada-Aircraft), DS70 and DS71, 14 March 1997; and Japan-Measures Affecting Consumer Photographic Film and Paper, DS44, 21 June 1996. 39 Sec, especially, Dsu, Article 3.2.

4° I concur with most of the views expressed by former Chairman and Member of the Appellate Body, Claus-Dicter Ehlermann, in his paper cited supra, footnote 3, at pp. 25-30. .1 Ibid., at pp. 30-31.

42 See Panel Report, Brazil-Export Financing Programme for Aircraft-Recourse by Canada to Article 21.5 of the Dsu, WT/DS4(,/RW, adopted 4 August 2000, paras. 3.1-3.15.

41 Appellate Body Report, 77lt1iland�Anti-D"mping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Bcamsfrom Poland (Tlwilatld-H-Bcams), WT/DS122/AB/R, adopted 5 April 2001, at paras. 62-77; note, in particular, para. 68. 14 Dsu, Articles 13, 14, 17.10, 18.2, and Appendix 3, "Working Procedures". r� Dsu, Article 18.2. 46 Dsu, Appendix 3, "Working Procedures", para. 2; Article 17.10.

3� See, for example, Panel Report, Canada-Measures Affecting the Export of Civilian Aircraft (Catlt1da-Aircraft), WT/DS70/R, adopted 20 August 1999, DSR 1999:iv, p. 1443, at paras. 9.54-9.69; Panel Report, Bm�;—Export Financing Prqqrammefor Aircraft (Brazil-Aircraft), WT/DS46/R, adopted 20 August 1999, DSR 1999:111, p. 1221, at para. 1.10 and Annex 1; and Panel Report, Australia-Subsidies Provided to Producers and Exporters of Automotive Leather-Recourse to Article 21.5 of the Dsu by the United States, WT/DSI 26/RW and Corr. 1, adopted 11 February 2000, at paras. 3.2-3.6, and Annex 4.

11 Appellate Body Report, Canada-Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DsFi 1999:111, p. 1377, at paras. 181-206. '`' See, in particular, Articles 13.1, 14.1, 17.10, 18.2 and paragraphs 2 and 3 of Appendix 3 ofthc Dsu.

so Sec Panel Rcport, Brazil-Export Financing Prtlqrammefor Airtraft Second Recourse by Canada to Article 21.5 of the Dsu, WT/DS46/RW/2, adopted 23 August 2001, at para. 313.

51 See Thailatld-H-Beams, supra, footnote 43, and accompanying text. In European Communities-Measures Effecting the Importation of Certain Poultry Products, DS69, 4 March 1997, an allegation was made in a DSD meeting by one of the parties that a private counsel had disclosed confidential information to its private-sector clients contrary to the obligations in the Dsu. 52 1 do not personally feel strongly about this issue. If a code is to be developed, it should be a voluntary code adopted by a recognized international bar association, such as the International Bar Association, and not by the WTO Members.

13 Weiler, supra, footnote 1, at p. 339. ,4 See EC— Bananas, supra, footnote 15; European Communities-Measures Affecting Meat and Meat Products (EC-Horrnones), WT/DS26/R, WT/DS48/R, and Report of the Appelate Body, AB-1997-4, WT/DS26/AB/R and WT/DS48/AB/R, 16 January 1998; and United States-Tax Treatment for Foreign Sales Corporations, WT/DS108/22, WT/DS108/23, WT/DS108/AB/RW, WT/DS108/24 and WT/DS108/25. 'S Ehlermann, supra, footnote 3, at pp. 25 and 44.


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