Abstract
This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.
1 Introduction
Since its establishment in 1995, the World Trade Organization (WTO) dispute settlement system has been the object of intense scrutiny, admiration, and “even envy” by international legal scholars and practitioners.1 Amid the complex transition from the General Agreement on Tariffs and Trade (GATT) to the WTO, and despite the initial perplexities of developing countries, WTO panels and the Appellate Body (AB) have progressively secured their authority as an effective forum for international adjudication and a central node of global governance. Today, that authority is challenged by some major players in the trade arena – most notably the United States (US) – who accuse the AB of engaging in judicial activism, ruling beyond what is necessary to solve disputes, indulging in obiter dicta, and overstepping the rules set out by WTO members under the Dispute Settlement Understanding (DSU).2 These critiques raise important substantive issues, whose merits are extensively debated in professional and scholarly circles alike.
Discussions of the ongoing stalemate focus either on its normative dimensions – e.g. the application of so-called ‘Rule 15’ to outgoing AB adjudicators,3 the viability of alternatives to the appellate process,4 etc. – or on the current landscape of international economic relations – e.g. US-China trade wars, the breakdown of multilateralism,5 etc. Whichever the angle, commentators tend to treat WTO adjudicative bodies as “reified collectives” forming “self-standing units of analysis”,6 thereby neglecting the impact of individual actors and everyday practices.7
This article, by contrast, seeks to unravel some of the socio-professional dynamics that have contributed to the current configuration of the WTO dispute settlement system. In particular, it argues that the legal culture of the European Community (EC) and later of the European Union (EU) has played, and continues to play, a significant role in shaping the ethos, the style, and the tone of the World Trade Court.8 This influence has not only been exerted through overt legal channels and political pressure: it also has run through the capillaries of professional practices, sensibilities, and implicit assumptions concerning the role of WTO dispute settlers vis-à-vis member states.
The argument should not be misread or overstated. The article does not purport to suggest that panels or the AB have been biased in favour of the EU in any given dispute. Albeit a major player in the system, the EU sits as a respondent roughly as often as it sits as a complainant,9 and its measures are often declared inconsistent with WTO obligations. Moreover, and crucially, European influences are but one of several factors to be considered when examining the evolution of WTO dispute settlement. Indeed, as will be discussed, other models – originating especially in North American legal culture – have had an equal or even greater impact on the system. Finally, the notion of ‘national’ influence should be handled with care when it comes to international adjudication. In fact, no process of legal transplantation entails the wholesale import of legal concepts from one regime to another. Rather, those concepts are translated into the vernacular of the receiving regime, adapted to its epistemic categories and cultural repertoire, and mediated by competing ideas and perspectives.10 Hence, international legal fields often consist of uneven blends of exogenous influences and endogenous categories.
With these caveats, the point remains that the ethos, style, and tone of WTO dispute settlement bodies have a distinctly European flavour. It is no surprise that, in the context of the ongoing crisis, the EU has been a vocal advocate for maintaining the AB and its existing features intact. Shedding light on these features may, in turn, help understand the current discomfort of some member states and the ongoing discussions over the future of WTO dispute settlement.
The argument proceeds as follows. Section 2 sets the stage for the analysis and clarifies what is meant by European influence on the WTO dispute settlement system. In particular, it describes the system as the site of a struggle between competing legal cultures and identifies certain areas of convergence between the EU and the WTO regimes. Based on these premises, the article then traces some of the pathways through which European sensibilities have made their way from Brussels and Luxembourg to Geneva. While this process of “co-adaptation”11 occurred gradually, one can identify three defining moments, discussed in Sections 3, 4 and 5, respectively.
Admittedly, any historical account is selective, partial, and purposeful in nature. Truth with a capital T “is not the bottom line”: at best, a historian can hope to stand the test of “rational acceptability”.12 Moreover, any narrative grounded on the agency of social actors is at constant risk of oversimplification and overdetermination. Thus, what follows is more a series of signposts than a fully traced path. Yet, this process of reconstruction holds promise. For one thing, it “bring[s] back into view the conflicts and confrontations of the early beginnings and therefore all the discarded possibles”; for another, it “retrieves the possibility that things could have been (and still could be) otherwise”.13
2 Washington, Brussels, Geneva: the Competition of Legal Cultures in WTO Adjudication
Like any other international adjudicative system, WTO dispute settlement is not only a legal or political construct. It can also be conceived as the site of a struggle among social actors endowed with unequal professional and technical capital, who compete for the right to establish the dominant legal paradigm within the system.14 The battleground extends well beyond the establishment of formal rules and procedures, and encompasses the routine practices of dispute settlement professionals, the way in which cases are pleaded and deliberated, and the self-perception of adjudicators.
Seen from this angle, WTO dispute settlement reveals a number of features that would otherwise remain invisible. Among these is a long-standing contest between the legal cultures of two major stakeholders in the system, the US and the EU,15 for dominance over the form and substance of trade jurisprudence. While the concept of ‘legal culture’ is admittedly nebulous, one could tentatively define it as a shared set of assumptions and predispositions towards “the role of law in society, the role of different legal sources, the actual authority of different actors and institutions, etc.”16
Clearly, the concept is a dynamic one: legal cultures evolve and transform over time as a result of internal and external processes of assertion and contestation. Indeed, the confrontation between American and European perspectives marked the late years of the GATT, took a new turn during the Uruguay Round, and continues to permeate WTO adjudication in ever-shifting ways. At each juncture, the competing worldviews have found embodiment in various members of the trade community (negotiators, litigators, adjudicators, secretariat staff, scholars, etc.), each deploying her discrete portion of agency to steer the system towards her preferences and sensibilities.
The role of American thinkers and professionals in this struggle is widely acknowledged: arguably, “[n]o single country has had a greater impact” on the world trade regime than the US.17 The very existence of the GATT is largely a result of the Anglo-American joint efforts at rebuilding multilateralism in economic relations after World War II.18 Likewise, the US played a crucial role – together with the EU, Canada, and Japan – in the negotiations leading to the replacement of the GATT with the WTO.19 Many of the rules contained in the covered agreements bear traces of US law and jurisprudence. For instance, it has been argued that the ‘dormant commerce clause’ doctrine developed by US courts has helped understand the relationship between non-discrimination obligations and the fulfilment of non-trade regulatory objectives.20
Importantly, the US can largely be credited for the progressive legalization of the system in the 1980s and early 1990s. Some leading American scholars, such as the late John Jackson, insisted on the important “operational functions” rules can play in governing economic behaviour, and warned that absent “predictability or stability”, trade and investment flows “might be even more risky”.21 Guided by these insights, the US began to push for more stringent dispute settlement procedures. At a time when other major players considered trade concerns as a matter of pragmatism, the US embraced the idea of a binding panel mechanism, coupled with appellate review, to overcome the perceived weakness of the GATT’s ‘positive consensus’ rule.22
Despite these important concessions, however, the US expected the WTO adjudicative system to remain swift, agile, restrained in its interpretive approach,23 and ultimately “deferential to the express consent of states”.24 Power would remain firmly in the hands of national governments, without “any real transfer … to the Geneva secretariat”.25 This supple design – perhaps more akin to arbitration than to a full-fledged court system – resonated well with the US’s “conception of national constitutionalism, democratic self-government and self-sufficiency”.26
The European side of the equation is perhaps less explored, and thus constitutes the central object of this article. The EC did not participate in the Havana negotiations, for obvious reasons – it came into existence a decade after the entry into force of the GATT. Moreover, in its formative years, the Community was perceived as a “fledgling institution”, dependent on “the consent of its member states”27 and thus unable to affect the early operations of the global trading system. This might explain the EC’s initial skepticism vis-à-vis formalized dispute settlement procedures and its strong preference for realpolitik rather than legalization in trade relations.28
However, things started to change as the EC began to strengthen its institutional capacity and gradually expanded its powers to oversee and regulate the internal common market. These developments, coupled with the economic relevance of European states, were such that, by the start of the Uruguay Round, the EU had become one of “the WTO’s principal architects”.29 The consolidation of the EC/EU as a protagonist in the international trade arena was accompanied by the emergence of a specific legal culture. As is well known, the “messianic” project of European integration required the establishment of the European legal order as independent from – and hierarchically superior to – those of its member states.30 This result was achieved through the incessant work of the Commission and the European Court of Justice (ECJ, now Court of Justice of the European Union).
The ECJ, in particular, appointed itself as the guardian of the system and, in the face of the political stagnation of the 1960s, issued a series of rulings laying the foundations of Europe’s “economic” and “structural” constitution.31 Since then, decision after decision, the Court progressively developed a “largely judge-made system of administrative law” that fundamentally redesigned the relationship between the scope and authority of European norms, on the one hand, and the regulatory autonomy of member states, on the other.32 A central technique to this effect is the proportionality test, which the ECJ applies to weigh the trade-restrictiveness of member state regulations against their contribution to the policy objectives pursued. This standard goes beyond the traditional and narrower concept of “reasonableness review”, and attributes “a particularly active role” to adjudicators.33 Indeed, by weighing and balancing the competing principles and interests at stake in each dispute, the ECJ operates less like an international dispute settlement body and more like a domestic constitutional court.34
The ECJ’s judicial tone fits well with its self-attributed role. The Court typically speaks “with one institutional voice and no dissents”, and its “seemingly authoritative, conclusory, syllogistically ordered” opinions leave little room for counterargument and alternative views.35 Policy considerations, which feature prominently in the opinions of US courts, are virtually absent in the ECJ’s judgments36 – or, at least, are disguised as rigorous interpretations of “the spirit, the general scheme and the wording” of the EU treaties.37 By insisting on “formalist, self-referential, and self-legitimating” hermeneutics,38 the Court strives to “promote its own and the EU’s authoritativeness, as if the latter were a stable long-established republic when, in fact, it is an evolving work in progress”.39
These features of EU legal culture bear striking similarities with the ethos, the style, and the tone of WTO dispute settlement bodies. The first similarity concerns the role of adjudicators vis-à-vis their political and diplomatic environment. Rather than acting as mere agents of member states, WTO dispute settlers largely perceive themselves as the impartial trustees of the world trading system, tasked with preserving the relevant rules and obligations from political interference.40 Numerous panelists and most AB members have sought to discharge their duties “at a considerable remove” from the negotiating fora of the WTO and have not hesitated to rule against the expectations and preferences of member states.41 Moreover, similar to the ECJ, panels and the AB have developed a complex jurisprudence enabling them to balance the imperative of trade liberalization against the fulfilment of non-trade objectives. This move has contributed to the judicialization of the relationship between the reach of WTO norms and the domestic regulatory authority of member states.
Another area of alignment between the WTO and the EU regimes relates to the tone of judicial decisions. Instead of following the “dialogical, conversational, analogical, and argumentative style” typical of US courts,42 panels and the AB couch their legal interpretations in strictly syllogistic, demonstrative terms. Relying on the formal techniques codified in the Vienna Convention on the Law of Treaties (VCLT),43 they almost invariably begin the analysis with the “ordinary meaning” of the treaty terms at issue, followed by the “context” and the “object and purpose” of the covered agreements.44 This way of organizing judicial reasoning recalls the ECJ’s focus on the “wording”, the “spirit”, and the “general scheme” of EU norms45 – albeit with a different emphasis on each element. Likewise, policy considerations are seldom made explicit in WTO adjudication, but are rather “concealed behind a veil of textualism, thus appearing to remain faithful to state consent”.46 The end-goal of the adjudicative exercise is not to compare equally viable interpretations, but to provide unequivocal, objective, and apodictic conclusions about the meaning of WTO law.47
Finally, panels and the AB emphasize collegiality in deliberations and are strongly averse to separate opinions.48 Dissents in WTO jurisprudence are few and far between, and the identities of dissenters are kept confidential. Taken together, these discursive techniques cement the (self-)perception of WTO adjudicators as custodians of the interpretation of multilateral trade norms, thereby reducing room for political contestation.
As this brief account purports to show, the last decades have witnessed an increasing convergence between the legal cultures of the EU and the WTO. This might explain, at least in part, why WTO dispute settlement has moved away from the supple and state-driven mechanism that some members had envisaged towards a more pervasive, ‘European-style’ court system. But how did this convergence come about? What factors led to its emergence? And can we really describe it as a one-way process of legal transplantation? This is where the story gets interesting – and tricky. Europe’s influence on the world trade system cuts deeper than formal negotiations or sheer economic might. In fact, the legal culture developed in Brussels and Luxembourg has gradually ‘infiltrated’ the Geneva community of trade practitioners and left (in)visible traces on their practices and worldviews.
The next Sections explore some of these ‘infiltrations’ by describing the trajectories of the EC/EU and the GATT/WTO professional milieus. While the two communities operated in relative isolation from each other until the early 1970s, they witnessed an initial rapprochement during the second half of the GATT’s life cycle, and became increasingly intertwined with the advent of the WTO. It bears repeating that the account that follows is inevitably selective, as it intentionally disregards the role of competing agents – e.g. US trade practitioners – in the evolution of WTO dispute settlement practices. Some may find this partiality inappropriate and potentially controversial in the current political climate. However, exploring the full panoply of social and cultural influences on the world trade system would far exceed the scope of a single article. That will be the topic for another day – and possibly another author.
3 1947–1970: Common Challenges, Distant Worlds
From a political and diplomatic perspective, the early GATT era was clearly “dominated by the US and its post-war partners”.49 From a socio-professional perspective, however, the picture was more nuanced. The Geneva trade community, which ran the GATT machinery in its everyday operations, was a close-knit group of professionals sharing a set of normative values and institutional ambitions within “a matrix of long-term first-name contacts and friendly personal relationships”.50 Participants in the community were eminently pragmatic individuals, often with little connection to academic circles.51 The GATT secretariat comprised a few dozen officers ‘on loan’ from the Interim Commission for the International Trade Organization.52 State delegates often came from the lower ranks of the diplomatic service and were usually appointed among the veterans of the Havana Charter negotiations. Their marginalization within national administrations, coupled with the technical nature of their expertise, largely insulated them from the outside world of “high” international relations.53 This “gentlemen’s club”54 of trade practitioners was relatively immune from Cold War tensions and free to develop the core tenets of the GATT regime away from media attention and political controversy.
Despite the absence of specific rules on dispute settlement,55 the GATT secretariat resorted first to the practice of ‘chairman’s rulings’, then to ‘working party’ reports to scrutinize the legality of state regulations. Soon enough, the first panels were composed to issue decisions on trade legal issues.56 Given the culture prevailing in the Geneva community at that time, the tone of early GATT panel reports was more diplomatic than judicial in nature:57 panelists were typically selected among the incumbents in the club, who preferred “impressionistic brush strokes” over legalistic reasoning.58
Meanwhile, in a similar fashion, the nascent EC saw legions of legal experts – professors, practitioners, ECJ judges, référendaires, Commission officials, state representatives, etc. – coalesce into a community devoted to the “production, application, interpretation, and teaching of European Law”.59 This EC club was more numerous, more academically active, and perhaps more prestigious than its Geneva counterpart – but certainly no less cohesive. Its members cooperated, for both noble and self-serving purposes, towards the establishment of Community law as an autonomous legal field, the crystallization of its core precepts, and its expansion and consolidation over time. The interplay between EC scholars and practicing jurists may be described as one of “co-constitution”.60 Intellectual production in the field was dominated by authors working for institutions “structurally geared” towards the primacy of the EU legal order,61 and a sort of revolving door existed between academe, the Commission, and the Court.
Throughout the 1960s, the ECJ was mostly preoccupied with expanding its judicial reach and asserting the ‘constitutional’ nature of the EC legal system. In pursuit of this goal, the Court issued a series of judgments that would lay the institutional foundations of Europe for decades to come. For instance, in Van Gend en Loos, the Court famously established the doctrine of direct effect;62 in Costa, it affirmed the supremacy of Community law over conflicting member state regulation;63 and so forth.
In those early years, the GATT and the EC professional communities largely ignored one another. Little overlap existed between the two groups, and instances of cross-communication were few and far between. Specialists in Community law “would typically profess to a great ignorance of the law of the GATT”, and vice versa.64 In terms of institutional structures, the EC clearly had the upper hand: the existence of binding adjudication, the broad access to legal action, and the increasing institutional autonomy from member states made it “the paradigm of a successful import of the rule of law into a transnational regime”. By contrast, the GATT’s informal approach to dispute settlement made it “a paragon of diplomacy masquerading as law”.65 This might explain a certain imbalance in the relative attention that the two regimes devoted to one another. While the GATT secretariat sought to analyse the trade implications of the Treaty of Rome,66 most EC lawyers remained quite condescending vis-à-vis the disciplines of the GATT,67 which they saw as “essentially a negotiating forum for the reduction of tariffs” and not a separate source of legal obligations.68
Yet, both communities were grappling, each in its own way, with phenomenally important questions about the architecture of international markets. The GATT regime was concerned mostly with border measures and trade discrimination. Its members were subject to most-favoured-nation (MFN) and national treatment obligations69 and were prohibited from imposing tariffs in excess of their scheduled commitments.70 Quantitative restrictions on imports and exports were also prohibited71 but, at least initially, seldom challenged by litigating parties.72 These disciplines were designed to establish a regime of “negative integration”,73 aimed at combating protectionism and beggar-thy-neighbour practices while, at the same time, according member states some discretion to design their national policies as they saw fit.74 A central normative device was Article XX, which permitted domestic non-trade measures, even if they violated GATT rules, on condition that they: (i) be “necessary” or “related” to the fulfilment of certain legitimate objectives, such as public morals, health, and the conservation of exhaustible natural resources; and (ii) do not constitute “a means of arbitrary or unjustifiable discrimination” or “a disguised restriction on international trade”.
By comparison, the market integration contemplated by the EC regime cut deeper into the policy sphere of member states: in addition to prohibiting discrimination and intra-EC tariffs, the system aimed at achieving “positive integration”75 by harmonizing domestic economic regulations and creating a single common marketplace.76 The system mandated, among other things, the removal of all measures having the effect of imposing hurdles on intra-EC trade,77 whether or not such measures had a discriminatory and/or a protectionist intent. Similar to GATT Article XX, Article 36 of the Treaty on the Functioning of the European Union (TFEU) allowed states to adopt potentially trade-restrictive measures on grounds of certain non-trade objectives – such as public morality, public order, health, or the protection of national heritage – provided that such measures do not “constitute a means of arbitrary discrimination or a disguised restriction on trade”.
At this stage, neither GATT dispute settlers nor the ECJ dared to address the relationship between trade liberalization commitments and non-trade objectives; nor did they attempt to strike an explicit balance between economic integration and domestic regulatory discretion. The two legal communities were, so to speak, too busy setting up their respective institutional machineries and working methods to thoroughly explore these fundamental issues – let alone in a comparative or cross-regime perspective. However, the legal expertise that was being developed in Brussels, Luxembourg and Geneva would soon start to converge towards what has been called – perhaps with a measure of exaggeration – a “common law of international trade”.78
4 1970–1995: First Signs of Convergence
As is well known, the 1970s marked a defining moment in Europe’s approach to market integration. Up until then, EC member states had made “little effort” to reduce non-tariff barriers to trade, while the harmonization of domestic regulations was lagging far behind schedule.79 Given the political risks confronting the common market, the ECJ took the lead and issued a handful of landmark judgments that effectively revived the project of European economic integration. In Dassonville, the Court famously ruled that “all trading rules … capable of hindering directly or indirectly, actually or potentially” intra-EC trade would amount to non-tariff barriers inconsistent with EC law.80 The political consequences of this decision were explosive: member states were suddenly stripped of the discretion to adopt non-discriminatory measures, even if they arguably lacked a protectionist intent, as soon as they had any direct or indirect impact on trade.81
The pressure to justify those measures under the general exceptions set out under Article 36 of the TFEU became “enormous”,82 and the ECJ was quick to provide its interpretation of that provision. In De Peijper, the Court established the “less restrictive measure” (LRM) test that would later come to influence both European and GATT/WTO jurisprudence. Under that test, member states enjoy, in principle, the right to decide the degree of fulfilment of non-trade objectives that their measures intend to achieve. However, a measure will fail to meet the requirements of Article 36 if the stated objective can be fulfilled to the same degree through a less trade-restrictive, reasonably available alternative measure.83 In Cassis de Dijon, the ECJ extended the LRM test to all domestic marketing regulations, whether discriminatory or not.84 It also established the principle of ‘functional parallelism’, whereby a member state could not refuse the importation and marketing of foreign products that meet production requirements of equivalent efficacy set out in another member state.85
Through these judgments, the ECJ laid the foundations of the “European economic constitution”,86 which complemented the “structural constitution”87 the Court had previously set out in Van Gend en Loos, Costa, etc. Many celebrated this as the moment where the future of Community law was taken out of the hands of state politicians and given directly “to the people” and civil society.88 Among the intellectual leaders of the day, one may recall ECJ Judges Hans Kutscher and Pierre Pescatore, who were credited for leading the Court in many of its foundational rulings. The former came to the Court in 1970 and served as its president from 1976 to 1980, while the latter joined the bench from 1967 to 1985.89 Other prominent jurists, including other ECJ Judges, Advocate-Generals, and scholars all contributed to “facilitat[ing] the propagation and acceptance of the Court’s rulings” across the continent.90
While EC intellectuals and practitioners were having their heroic moment, their GATT counterparts were still struggling to set up a proper judicial system for the settlement of disputes. Given the rapidly evolving political climate, the early 1970s had witnessed a certain loss of faith among GATT members about the “utility of any detailed substantive rules” governing trade relations.91 Yet, behind the scenes, the diplomatic style of the Geneva trade community was slowly giving way to a more properly legal ethos.92 The increasing complexity of disputes led litigating states to put forward more sophisticated arguments, which in turn required greater legal expertise to be properly handled and understood. As a result, the GATT secretariat became more involved in servicing panels and working parties, thereby enhancing the GATT’s capacity to process cases.93 A 1976 internal memorandum lamented the absence of formal rules governing the establishment and procedure of panels, while still recognizing the importance of political and economic practice as relevant factors.94 By the end of the decade, a string of “failed panel decisions” – i.e. reports widely criticized for the weakness of their legal reasoning95 – had persuaded member states of the necessity of legal “expertise and consistency” in GATT dispute settlement.96
The 1980s marked a further step forward in the legalization process and, most importantly, showed the first signs of cross-fertilization between the GATT and the EC communities. As noted above,97 the US was warming to the idea of strengthening GATT rules and procedures, and loosened its opposition to the creation of a specialized legal team within the secretariat. Thus, in 1981, GATT Director-General Dunkel established an Office of Legal Affairs to handle matters arising from the interpretation and application of the relevant trade rules. The US and the EC bitterly disagreed over the profile of the head of the Office. The former pushed for a leading American international economic law scholar – possibly John Jackson or Robert Hudec – while the latter preferred someone with pragmatic GATT experience.98 As a compromise, the position ultimately went to Hielke van Tuinen, a former Dutch diplomat with no litigation experience.99 Given his background, van Tuinen was not in a position to provide panels with substantive legal advice,100 and was replaced by Åke Lindén upon his retirement in 1982.
The job of assisting panels fell on two new recruits, German lawyers Frieder Roessler and Ernst-Ulrich Petersmann, who are now considered among “the GATT’s major intellectual architects” on par with John Jackson.101 Both had studied at Freiburg with Friedrich Hayek and, according to some accounts, were among “the standard-bearers of Geneva School neoliberalism”.102 Roessler, who would later become director of the GATT Legal Affairs Division, was a fervent believer in the international rule of law and abhorred the pragmatism that had characterized the GATT for decades.103 A proactive legal assistant, he “drafted the bulk of a series of historical decisions on the transition from the GATT to the WTO”.104 Reportedly, he was held in such high esteem by panelists and state delegates that the simple assurance that he had written a panel report would weigh in favour of its adoption by the GATT Council.
Petersmann shared Roessler’s ardour, but with a distinctly ‘European’ twist. Despite his short-lived experience with the EC’s Legal Service, he saw European integration as an example of “the potential contribution of [international economic law] to rule of law and democratic peace”.105 To his mind, the “Westphalian ‘political realism’” prevailing in the GATT, with its focus on power-oriented “reciprocal bargaining”,106 failed to protect “reasonable citizens interested in maximising consumer welfare through liberal trade” and to foster the transnational promotion of human rights.107 Only a proper system of institutional checks and balances, coupled with a robust mechanism of judicial review – similar to that established by the ECJ in the 1960s – could achieve the goal of enforcing “cosmopolitan rights and transnational rule of law for the benefits of citizens”.108
Animated by these ideals, Roessler and Petersmann used their tenure as legal officers to contribute, staunchly and discreetly, to the emergence of a proper judicial culture in the GATT and to greater reliance on law in world trade relations.109 Their ultimate goal, it has been argued, was “to scale up the ‘European idea’ of neoliberal constitutionalism from the continent to the world economy”, with GATT adjudicators acting as “equivalents” of the ECJ.110 Measuring the precise impact of these efforts would be a quixotic task – if anything, because constitutional cosmopolitanism is far from universally accepted in trade circles.111 Yet, Roessler and Petersmann’s ideas “fed an important intellectual stream that led to the metamorphosis of the GATT into the [WTO] in 1995”.112 Indeed, in the late 1980s, a renewed confidence in the GATT adjudicative process enabled panelists to tackle “the single most potent source of legal and political tension”113 in the system – namely, the relationship between the imperative of trade liberalization and domestic measures aimed at achieving non-trade objectives.
The GATT case-law on the notion of ‘necessity’ under Article XX is particularly significant. The first panel to comprehensively address this notion was confronted with a dispute between the EC and the US, and included former ECJ Judge Pescatore among its members.114 Before the panel, the EC argued for reading the necessity standard similarly to the LRM test developed by the ECJ in De Peijper and Cassis de Dijon.115 The US opposed the EC’s position, and warned that adopting an LRM test would invite “continuous disputes” regarding measures that member states “had clearly intended to exempt” from the purview of the GATT.116 The panel ultimately sided with the EC, and held that the necessity test is not met if an alternative measure is reasonably available which would not be inconsistent with the GATT. Moreover, where a GATT-consistent measure is not reasonably available, a member state is bound to use, among the measures reasonably available to it, that which entails the least degree of inconsistency with the GATT.117 A subsequent panel restated that reasoning verbatim, and reaffirmed the LRM test as the relevant standard for gauging necessity.118 Yet another panel – this time counting Petersmann in its ranks – followed suit shortly thereafter.119
These rulings, which will sound familiar to any connoisseur of ECJ jurisprudence,120 are the first tangible signs of convergence between the judicial approaches of the EC and the GATT. After decades of ‘diplomatic case-law’ and focus on border measures, GATT dispute settlers were ready to adopt a more pervasive standard of review vis-à-vis domestic regulations. Case after case, judicial scrutiny of state measures increased in meticulousness, questioning “in micro detail” why and how each measure “was adopted and applied in the first place”.121 Some – including Petersmann – saluted this as a turn to constitutional adjudication in world trade.122 Others feared that adjudicators may use “opaque reasoning” to impose their own “value system” on the regulatory autonomy of states.123 Either way, the process of social cross-fertilization among Brussels, Luxembourg and Geneva catalysed a tectonic shift in the role of trade adjudicators and their relationship with member states.
5 1995–2019: Intertwined Communities and the Rise of the World Trade Court
To say that the outcomes of the Uruguay Round forever changed the landscape of global markets is to say the obvious. By the time the WTO came into existence, the “single package” of rules governing trade relations had expanded far beyond discrimination and border measures, and now encompassed subject matters as diverse as services, intellectual property, trade remedies, technical barriers to trade, and sanitary or phytosanitary measures.124 From a substantive standpoint, some of the new disciplines reflected a “deep integration” agenda125 and contemplated the harmonization of domestic economic policies in numerous sectors.126 From an institutional standpoint, the new dispute settlement system established under the DSU, with its “compulsory and fully automatic” jurisdiction127 and its standing appellate review mechanism, promised to thicken the normative structure of the WTO and take the interpretation of the relevant rules definitively out of the hands of diplomats.
Amid this transition, the EU managed to consolidate its position as a protagonist in the trade arena and to further expand its cultural influence on WTO adjudication. Some of the pathways through which this influence was exerted are rather obvious. As mentioned in Section 2, the EU played a major role during the Uruguay Round, together with the delegations of other economic heavyweights. After their initial reservations,128 European delegates had become fervent champions of legalization and judicialization,129 and participated with enthusiasm in the design of the new adjudicative mechanism.
In addition, the EU significantly contributes to the definition of WTO jurisprudence through the legal arguments it presents in court. As a frequent litigant before panels and the AB, the Commission’s lawyers enjoy all the advantages of repeat players over one-shotters: these include the expertise and economies of scale that are built through repeated participation; the possibility to trade off short-term tangible gains for long-term rule gains; and the ability to push for increasingly favourable interpretations of the relevant rules.130 These advantages are shared by other frequent players – such as the US, Canada, Brazil, Japan, India, and China – and, therefore, do not evidence a unique European strategy.
More interestingly for our purposes, the professional milieu of WTO dispute settlers saw an unprecedented intake of experts in EU law – or, at least, individuals familiar with the European regime. While US trade practitioners, such as senior secretariat officers William Davey and Bruce Wilson, maintained a firm foothold in the system, their numbers and authority were rivalled by the newcomers.
For instance, Claus-Dieter Ehlermann, the first EU-nominated judge to sit on the AB (1995–2001), boasted a long and distinguished career in the Community’s institutions. Having served in the Commission for over thirty years, he had risen to the head of the departments most tied up with the legal sphere, i.e. the Legal Service and the Directorate-General for Competition.131 A prolific scholar with strong connections to private counsel and ECJ Advocate-Generals, he had been part and parcel of the community devoted to the consolidation of the European legal order.132 Ehlermann came to the AB with the belief that “the objectives pursued by the WTO and the [EU] are not the same” and that the respective treaties “had to be interpreted differently”.133 For instance, he noted, the AB’s strong focus on the ‘ordinary meaning’ of treaty terms departed from the ECJ’s teleological reliance on ‘object and purpose’.134 Arguably, this normative agnosticism facilitated interactions and consensus among the original members of the AB, including US-nominated judge James Bacchus.
However, Ehlermann soon realized that “the subject area of examination” in the EU and the WTO regimes, as well as “the kind of tools to use for this examination”, were “very similar, if not the same”.135 A sensitive issue common to both regimes was, for instance, the standard of judicial review of determinations made by the domestic authorities of member states. Ehlermann significantly contributed to an early AB decision stating that the relevant standard must “reflect the balance … between the jurisdictional competences conceded by Members to the WTO and the jurisdictional competences retained by the Members for themselves”.136 In particular, reasoned the AB, the standard of review is “neither de novo review … nor ‘total deference’, but rather the ‘objective assessment of the facts’”.137 While this test may appear similar to that applied by US courts, Ehlermann saw it as akin to the ECJ’s approach towards decisions taken, in analogous situations, by the Commission and EU member state authorities.138
Around that time, the AB secretariat, tasked with assisting the AB with legal research, deliberation, and the drafting of reports, comprised two Canadians – Director Debra Steger (1995–2001) and Susan Hainsworth (1995–1997) – and a Briton – Guy Evans (1995–1996). Shortly afterwards, Peter Van den Bossche (1997–2001) and Nicolas Lockhart (1998–2003) joined the team. Van den Bossche, a former ECJ référendaire and professor at Maastricht, would later be appointed to the AB’s bench (2009–2017). His scholarly writings include a market-leading textbook on WTO law139 that has initiated generations of students to the virtues of the world trading system. Lockhart, also a former référendaire, left the secretariat in 2003 to join a preeminent law firm specializing in WTO litigation. A similar turnover occurred, albeit to a lesser extent, in the secretariat teams assisting panels. For example, in 1999, Pieter Jan Kuijper, a long-serving member of the EC’s Legal Service and professor at Amsterdam, replaced William Davey at the helm of the WTO Legal Affairs Division.
It would be an overstatement to say that Van den Bossche, Lockhart, and Kuijper acted in concert to disseminate their European sensibilities across Geneva. After all, their respective positions within the secretariat and their subservient role vis-à-vis the adjudicators prevented them from explicitly coordinating their efforts. Also, as noted, the pull of competing legal cultures was certainly a mediating factor. Yet, by deploying their various forms of social capital – judicial, academic, and litigation prowess – these three influential practitioners have, consciously or not, left a mark on early WTO jurisprudence and facilitated its acceptance by the WTO legal community. As Kuijper himself noted recently, European legal traditions have exerted as much influence on WTO dispute settlement practices as international and common law, to the point that many of the AB’s judicial postures “have their roots in well-established principles of civil law systems”.140
These socio-professional processes, partly inspired by the European governance model, contributed to a number of important transformations in the form and substance of WTO adjudication. The first transformation, already mentioned in Section 2, concerns the structural relationship between the AB and its political environment. By most accounts, the drafters of the DSU did not intend to create a proper international court, but simply a review mechanism of limited jurisdiction in exchange for the loss of the political right to block panel reports.141 In their expectations, few cases would make it to the appellate stage, and even then, the appeal would simply provide a swift and punctual remedy to egregious panel errors on discrete legal issues.
Soon, however, it became clear that appellate adjudicators held a different view. In their own words, the AB would be, “all but in name, the ‘World Trade Court’”,142 vested with “a kind of supreme court jurisdiction to control the interpretation and application” of WTO rules and obligations.143 Instead of following a minimalist interpretive approach, the ‘Court’ would strive to preserve the “completeness, coherence, and internal consistency of WTO law”144 against any attempt at political interference. Also, its operations would be kept at a safe distance from the gentlemen’s club of trade habitués.
This self-perceived role was made explicit through a number of jurisprudential postures, including: (i) establishing “a doctrine of implicit judicial powers, including to fill gaps”; (ii) rejecting a “notion of institutional balance that would require some deference to political/diplomatic rule-making processes of the WTO”; and (iii) highlighting the “precedential weight” of past decisions as a means to ensure security and predictability in the interpretation of trade norms.145 For instance, on one occasion, the AB dismissed a 1981 GATT Council document, accompanied by a Chairperson’s statement, as simply irrelevant to its disposition of a subsidy case.146 On another occasion, it famously admonished that panels ought to abide by its legal interpretations – the WTO “acquis” – unless they have “cogent reasons” not to do so.147 In these and other cases, the AB declared its independence from the squabbles of trade delegates and asserted its supremacy over the old guard of ‘diplomatic’ panels. These moves, in turn, may evidence the AB’s ambition to serve as the guardian of the multilateral trading system in the face of political inertia and the stagnation of the Doha Round: a form of “governance by judiciary”148 that recalls the heroic role of the ECJ in the 1960s and 1970s.
Besides the relationship between the judicial and the political branches of the WTO, traces of European influence can be found in several other areas of AB case-law. A prime example is the jurisprudence concerning the ‘necessity’ of non-trade measures under GATT Article XX. The AB report in Korea – Various Measures on Beef, allegedly drafted under Ehlermann’s direction,149 stipulated that a necessity analysis requires “weighing and balancing” a series of factors, including the contribution made by the measure to its stated objective, the importance of the common interests or values protected by that measure, and the trade impact of the law or regulation on imports or exports.150 Despite its apparent novelty, this standard did not depart significantly from the LRM test developed by GATT panels under the EC’s impulse.
Indeed, in EC – Asbestos, the AB noted – again with significant contributions from Ehlermann and perhaps Lockhart – that the objective pursued by the measure, i.e. the preservation of human life and health, was “vital and important in the highest degree”, and went on to assess whether “there [was] an alternative measure that would achieve the same end and that is less restrictive of trade” than a prohibition on the marketing of asbestos-containing products.151 It found that no such alternative existed. The LRM test was subsequently reaffirmed in most AB reports dealing with necessity under GATT Article XX,152 and progressively extended to other similar provisions such as Article XIV of the General Agreement on Trade in Services (GATS)153 or Article 2.2 of the Agreement on Technical Barriers to Trade (TBT).154
Hence, the AB’s jurisprudence on ‘necessity’ still echoes the ECJ’s classic decisions in De Peijper, Cassis de Dijon, etc. The AB’s consistent application of the LRM test strikes the balance between domestic regulatory autonomy and economic integration in terms of Pareto-optimality,155 which in turn has far-reaching implications on the domestic policy authority of member states. Hailed by some and criticized by others, this adjudicative posture has clearly moved away from yesteryear’s focus on protectionism, discrimination, and border measures. Instead, it has been argued, the AB is increasingly active in “disciplining regulatory arbitrariness and promoting better designed, tightly focused and more efficient regulation”.156
Other points of convergence between EU and WTO sensibilities – most notably, the isolationist tendencies of both regimes towards general international law157 – will have to be left for another day. For the time being, suffice it to say this: if it is true that legal concepts, epistemic categories, and judicial techniques found their way from Brussels to Geneva, it is equally true they did not travel the highways of formal law. Instead, most of the time, they preferred the hidden paths of professional expertise and disciplinary vernaculars.
6 Conclusion
Whether and how the present diplomatic impasse will transform WTO dispute settlement remains to be seen: the technical and political complexities of the moment make predictions difficult.158 These complexities, however, only tell part of the story. Underneath the grandeur of Law and Politics, one can discern a host of social and professional interactions that, in discreet and often mundane ways, incessantly shape judicial discourse, ethos, and outcomes. This article sought to explore a slice of those interactions. It told the story of how European sensibilities became entrenched as one of the major influences on WTO panels and the AB. As repeatedly acknowledged, this story is inevitably partial and cannot hope to exhaust such a rich topic. Further research will be needed to map the pathways of cross-fertilization and the areas of competition between European, American, Asian, and developing country influences in the making of the World Trade Court.
How does legal and social capital circulate across professional groups? What role do structure and contingency play in the process? These and other difficult questions will need answers before we can get a clearer picture. Yet, unearthing the inner dynamics of the WTO legal profession is key to understanding how we got where we are, and where to go from here. After all, these humble and invisible ties are what makes a legal community, and a legal community is what ultimately makes the law.
Robert Howse, “The World Trade Organization 20 Years On: Global Governance by Judiciary”, 27 European Journal of International Law (2016), 9, 11. See also e.g. Richard Stewart and Michelle Sanchez Badin, “The World Trade Organization: Multiple Dimensions of Global Administrative Law”, 9 International Journal of Constitutional Law (2011), 556, 562.
See Office of the US Trade Representative, Report on the Appellate Body of the World Trade Organization (2020).
See e.g. Amrita Bahri, “‘Appellate Body Held Hostage’: Is Judicial Activism at Fair Trial?”, 53 Journal of World Trade (2019), 293, 296–298.
See e.g. Joost Pauwelyn, “WTO Dispute Settlement Post 2019: What to Expect?”, 22 Journal of International Economic Law (2019), 297.
See e.g. Daniel Chow, Ian Sheldon and William McGuire, “The Revival of Economic Nationalism and the Global Trading System”, 40 Cardozo Law Review (2019), 2133.
Antoine Vauchez, “Communities of International Litigators”, in C.P.R. Romano, K.J. Alter and Y. Shany (eds.), The Oxford Handbook of International Adjudication (Oxford University Press, 2014), 655, 655–656 (emphasis omitted).
As a recent exception, see e.g. Joost Pauwelyn and Krzysztof Pelc, Who Writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement (6 October 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3458872 (last accessed 12 October 2019).
The moniker ‘World Trade Court’ has been frequently used by journalists and commentators since the WTO’s inception. See e.g. Claus-Dieter Ehlermann, “Six Years on the Bench of the ‘World Trade Court’: Some Personal Experiences as Member of the Appellate Body of the World Trade Organization”, 36 Journal of World Trade (2002), 605. Today, as will be discussed, that moniker and its implications lie at the core of debates among WTO member states.
See WTO website, https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm (last accessed 25 September 2019).
See generally Gunther Teubner, “Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences”, 61 Modern Law Review (1998), 11; Antje Wiener and Philip Liste, “Lost without Translation? Cross-Referencing and a New Global Community of Courts”, 21 Indiana Journal of Global Legal Studies (2014), 263.
Geert De Baere and Isabelle Van Damme, “Co-Adaptation in the International Legal Order: The EU and the WTO”, in J. Crawford and S. Nouwen, Select Proceedings of the European Society of International Law: Third Volume (Hart Publishing, 2012), 311, 312.
Hilary Putnam, Reason, Truth and History (Cambridge University Press, 1981), 130.
Pierre Bourdieu, “Rethinking the State: Genesis and Structure of the Bureaucratic Field”, 12 Sociological Theory (1994), 1, 4.
This description presents obvious similarities with the Bourdieusian notion of ‘field’. See generally Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field”, 38 Hastings Law Journal (1987), 814.
Given the limited space available, this article does not address the role that more recent stakeholders, China in primis, have played and are playing in (re-)shaping the system.
Ralf Michaels, “Legal Culture”, in J. Basedow, K.J. Hopt, R. Zimmermann and A. Stier (eds.), Max Planck Encyclopedia of European Private Law (Oxford University Press, 2012), 1060, 1061.
Petros Mavroidis, George Bermann and Mark Wu, The Law of the World Trade Organization: Documents, Cases and Analysis (1st edn., Thomson Reuters, 2010), 1144.
See generally e.g. Richard Gardner, Sterling-Dollar Diplomacy: Anglo-American Collaboration in the Reconstruction of Multilateral Trade (Oxford University Press, 1956).
The extent of the US’s enthusiasm vis-à-vis the creation of a new multilateral institution is the object of scholarly debate. For many, the end of the Cold War represented for the US an opportunity to remake the global order. See e.g. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars (Princeton University Press, 2001), 50–51. For others, however, the US was “at times indifferent or even hostile to the notion of creating a new global body”. Craig VanGrasstek, The History and Future of the World Trade Organization (WTO, 2013), 14.
See e.g. Robert Howse, “Managing the Interface between International Trade Law and the Regulatory State: What Lessons Should (and Should Not) Be Drawn from the Jurisprudence of the United States Dormant Commerce Clause”, in T. Cottier and P. Mavroidis (eds.), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (University of Michigan Press, 2000), 139; Mads Andenas and Stefan Zleptnig, “Proportionality: WTO Law in Comparative Perspective”, 42 Texas International Law Journal (2007), 371, 402–405.
John Jackson, The World Trading System: Law and Policy of International Economic Relations (MIT Press, 1989), 24. For an earlier formulation of the argument, see e.g. John Jackson, “The Puzzle of GATT: Legal Aspects of a Surprising Institution”, 1 Journal of World Trade Law (1967), 131.
See e.g. Judith Goldstein and Richard Steinberg, “Negotiate or Litigate? Effects of WTO Judicial Delegation on US Trade Politics”, 71 Law and Contemporary Problems (2008), 257, 263–267.
See e.g. Peter Van den Bossche, “From Afterthought to Centrepiece: The Appellate Body and Its Rise to Prominence in the World Trading System”, in G. Sacerdoti, A. Yanovich and J. Bohanes (eds.), The WTO at Ten: The Contribution of the Dispute Settlement System (Cambridge University Press, 2006), 289.
Goldstein and Steinberg, supra note 22, at 268.
Judith Bello, “The WTO Dispute Settlement Understanding: Less is More”, 90 American Journal of International Law (1996), 416, 418.
Ernst-Ulrich Petersmann, “Transatlantic Leadership for Concluding the WTO’s ‘Development Round’?”, in R. Hofmann and G. Tondl, The European Union and the WTO Doha Round (Nomos, 2007), 139, 143.
Frieder Roessler, “The Role of Law in International Trade Relations and the Establishment of the Legal Affairs Division”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 161, 164.
Roessler, supra note 27, at 164. See also e.g. Claus-Dieter Ehlermann, “Revisiting the Appellate Body: The First Six Years”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 482, 484–485.
Mavroidis, Bermann and Wu, supra note 17, at 1100.
Joseph Weiler, “The Political and Legal Culture of European Integration: An Exploratory Essay”, 9 International Journal of Constitutional Law (2011), 678, 682.
Joseph Weiler, “Epilogue: Towards a Common Law of International Trade”, in J.H.H. Weiler (ed.), The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade? (Oxford University Press, 2001), 201, 206.
Alec Stone Sweet and Jud Mathews, “Proportionality Balancing and Global Constitutionalism”, 47 Columbia Journal of Transnational Law (2008), 72, 141–142. In its most extreme form, the evolution of the EC/EU legal order has been described as “replacing non-judicial proceedings of legislation, administration, or dispute settlement with judicial proceedings”. Carl Baudenbacher, “Judicialization: Can the European Model Be Exported to Other Parts of the World?”, 39 Texas International Law Journal (2004), 381.
Andenas and Zleptnig, supra note 20, at 384.
See e.g. Stone Sweet and Mathews, supra note 30, at 139–145; Michel Rosenfeld, “Comparing Constitutional Review by the European Court of Justice and the US Supreme Court”, 4 International Journal of Constitutional Law (2006), 618.
Rosenfeld, supra note 34, at 639.
Rosenfeld, supra note 34, at 635.
Case No. 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1962 ECR 10 (1962), p. 12. See generally Nial Fennelly, “Legal Interpretation at the European Court of Justice”, 20 Fordham International Law Journal (1996), 656.
Weiler, supra note 30, at 687.
Rosenfeld, supra note 34, at 640. See also e.g. Anne-Marie Burley and Walter Mattli, “Europe Before the Court: A Political Theory of Legal Integration”, 47 International Organization (1993), 41, 73–76.
The terms ‘agents’ and ‘trustees’ are borrowed from Karen Alter, “Agents or Trustees? International Courts in their Political Context”, 14 European Journal of International Relations (2008), 33.
Howse, supra note 1, at 25. See also ibid., p. 31.
Rosenfeld, supra note 34, at 634–635.
United Nations, Vienna Convention on the Law of Treaties (23 May 1969), UNTS 1155, 331.
See Article 31(1) of the VCLT. On the rare occasions where this interpretive exercise does not yield the expected results, adjudicators complement their analysis by looking at “the preparatory work of the treaty and the circumstances of its conclusion”. See Article 32(1) of the VCLT.
See supra note 37.
Eyal Benvenisti and Sivan Shlomo Agon, “The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication”, 68 University of Toronto Law Journal (2018), 598, 599.
For a critique of this approach, see e.g. Jan Klabbers, “Virtuous Interpretation”, in M. Fitzmaurice, O. Elias and P. Merkouris (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Martinus Nijhoff, 2010), 17; Andrea Bianchi, “Textual Interpretation and (International) Law Reading: The Myth of (In)Determinacy and the Genealogy of Meaning”, in P. Bekker, R. Dolzer and M. Waibel (eds.), Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (Cambridge University Press, 2010), 34; Tommaso Soave, The Judicial Backstage: The Power of Unseen Practices in International Adjudication, unpublished thesis on file with the author.
This aversion to dissents is expressed in the Working Procedures for Appellate Review, which stipulate that AB “divisions shall make every effort to take their decisions by consensus”. Working Procedures for Appellate Review, WT/AB/WP/W/10 (12 January 2010), Rule 3(2).
Howse, supra note 1, at 14.
Joseph Weiler, “The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement”, 35 Journal of World Trade (2001), 191, 195.
A notable exception, as noted above, was the towering figure of John Jackson. For discussion, see e.g. David Kennedy, “The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law”, 10 American University International Law Review (1995), 671.
See Robert Hudec, “The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure”, in J. Bhagwati and M. Hirsch (eds.), The Uruguay Round and Beyond: Essays in Honor of Arthur Dunkel (Springer-Verlag, 1998), 101, 105.
Weiler, supra note 50, at 195.
Joost Pauwelyn, “The Transformation of World Trade”, 104 Michigan Law Review (2005), 1, 13.
Except the broad authority to redress “nullification or impairment” pursuant to Article XXIII of the GATT.
See Hudec, supra note 52, at 104–107.
Pauwelyn, supra note 54, at 14.
Hudec, supra note 52, at 106.
Harm Schepel and Rein Wesseling, “The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe”, 3 European Law Journal (1997), 165, 170.
The expression is borrowed from Anna Leander and Tanja Aalberts, “The Co-Constitution of Legal Expertise and International Security”, 26 Leiden Journal of International Law (2013), 783.
Schepel and Wesseling, supra note 59, at 171.
Case No. 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1962 ECR 10 (1962), pp. 12–13.
Case No. 6/64, Costa v. ENEL, 1964 ECR 585 (1964), pp. 593–594.
Joseph Weiler, “Cain and Abel – Convergence and Divergence in International Trade Law”, in J.H.H. Weiler (ed.), The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade? (Oxford University Press, 2001), 1.
Joseph Weiler, supra note 31, at 202.
See Paul Luyten, “We Were Young Together: At the GATT, 1956–58”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in Multilateral Trading System (Cambridge University Press, 2015), 70, 81–82.
See Ehlermann, supra note 28, at 483.
Åke Lindén, “The First Years of the GATT Legal Service”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 135, 137.
Articles I and III of the GATT, respectively.
Article II of the GATT.
Article XI of the GATT.
See Weiler, supra note 31, at 229.
Gisele Kapterian, “A Critique of the WTO Jurisprudence on ‘Necessity’”, 59 International and Comparative Law Quarterly (2010), 89, 93.
See e.g. Andrew Lang, “The Judicial Sensibility of the WTO Appellate Body”, 27 European Journal of International Law (2016), 1095, 1097; Weiler, supra note 64, at 1.
See e.g. Kapterian, supra note 73, at 92–93; Weiler, supra note 64, at 1; Stone Sweet and Mathews, supra note 32, at 139.
Article 114 of the TFEU. For ease of reference, this article refers to the current numbering of EU provisions as contained in the Consolidated version of the Treaty on the Functioning of the European Union (59 OJ C 202, 7 June 2016).
Articles 34 and 35 of the TFEU.
Weiler, supra note 31.
Stone Sweet and Mathews, supra note 32, at 142.
Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville, 1974 ECR 838 (1974), p. 852.
See Stone Sweet and Mathews, supra note 32, at 143.
Weiler, supra note 31, at 217.
Case 104/75, De Peijper, 1976 ECR 613 (1976), pp. 635–638.
Case 120/78, Rewe-Zentral v. Bundesmonopolverwaltung für Branntwein, 1979 ECR 649 (1979), p. 664.
Ibid., p. 664.
See generally Miguel Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Hart, 1998).
Weiler, supra note 31, at 206.
Federico Mancini and David Keeling, “Democracy and the European Court of Justice”, 57 Modern Law Review (1994), 175, 182. See also Schepel and Wesseling, supra note 59, at 186.
See Stone Sweet and Mathews, supra note 32, at 144.
Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution”, 75 American Journal of International Law (1981), 1, 2.
Robert Hudec, “GATT or GABB? The Future Design of the General Agreement on Tariffs and Trade”, 80 Yale Law Journal (1971), 1299.
See generally Pauwelyn, supra note 54, at 18–20.
Gabrielle Marceau, Amelia Porges and Daniel Baker, “Introduction and Overview”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in Multilateral Trading System (Cambridge University Press, 2015), 1, 29.
Marceau, Porges and Baker, supra note 93, at 28–29.
Amelia Porges, “The Legal Affairs Division and Law in the GATT and the Uruguay Round”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 223, 225–226 (referring to GATT Panel Reports, United States Tax Legislation (US – DISC), L/4422, adopted 7 December 1981; Income Tax Practices Maintained by The Netherlands (Netherlands – Income Tax), L/4425, adopted 7 December 1981; Income Tax Practices Maintained by Belgium (Belgium – Income Tax), L/4424, adopted 7 December 1981; Income Tax Practices Maintained by France (France – Income Tax), L/4423, adopted 7 December 1981; Spain – Measures Concerning Domestic Sale of Soyabean Oil – Recourse to Article XXIII:2 by the United States (Spain – Soyabean Oil), L/5142, 17 June 1981, unadopted).
Hudec, supra note 52, at 112. See also Roessler, supra note 27, at 165.
See supra notes 20 and 21 and accompanying text.
See Lindén, supra note 68, at 137.
Marceau, Porges and Baker, supra note 93, at 34.
Hielke van Tuinen, “Remembrance of Things Past: My Time at the GATT”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 131, 133–134.
Dongsheng Zang, “Divided by Common Language: ‘Capture’ Theories in GATT/WTO and the Communicative Impasse”, 32 Hastings International and Comparative Law Review (2009), 426.
Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press, 2018), 223.
Roessler, supra note 27, at 162–164.
Gabrielle Marceau, “From the GATT to the WTO: The Expanding Duties of the Legal Affairs Division in Non-Panel Matters”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 244, 252.
Ernst-Ulrich Petersmann, “The Establishment of a GATT Office of Legal Affairs and the Limits of ‘Public Reason’ in the GATT/WTO Dispute Settlement System”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press, 2015), 182, 183.
Petersmann, supra note 105, at 186.
Petersmann, supra note 105, at 182.
Petersmann, supra note 105, at 198. See also e.g. Ernst-Ulrich Petersmann, “Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration”, 13 European Journal of International Law (2002), 621, 644.
Petersmann, supra note 105, at 184.
Slobodian, supra note 102, at 256–257.
See e.g. Jeffrey Dunoff, “Constitutional Conceits: The WTO’s ‘Constitution’ and the Discipline of International Law”, 17 European Journal of International Law (2006), 647, 657–661; Tommaso Soave, “Three Ways of Looking at a Blackbird: Political, Legal, and Institutional Perspectives on Pharmaceutical Patents and Access to Medicines”, 8 Trade Law and Development (2016), 137, 168–171.
Slobodian, supra note 102, at 223.
Weiler, supra note 31, at 205.
GATT Panel Report, US – Section 337 of the Tariff Act of 1930, L/6439, adopted 7 November 1989, para. 1.2. Of course, Pescatore’s presence on the panel may not have been determinative of the legal outcome.
Ibid., para. 3.60.
Ibid., para. 3.59.
Ibid., para. 5.26.
GATT Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R, adopted 7 November 1989, 74.
GATT Panel Report, US – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, para. 5.43.
Stone Sweet and Mathews, supra note 32, at 157.
Stone Sweet and Mathews, supra note 32, at 158.
See e.g. Ernst-Ulrich Petersmann, “Constitutionalism and International Organizations”, 17 Northwestern Journal of International Law & Business (1996), 398, 431; Deborah Z. Cass, “The ‘Constitutionalization’ of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade”, 12 European Journal of International Law (2001), 39; Stone Sweet and Mathews, supra note 32, at 157.
Kapterian, supra note 73, at 91.
See generally Pauwelyn, supra note 54, at 24–25.
Howse, supra note 1, at 12.
Notable provisions in this regard include the standardization and mutual recognition requirements under Articles 3 and 4 of the SPS Agreement, the corresponding obligations under Article 2.4 of the TBT Agreement, and the minimum intellectual property protection requirements contained in the TRIPS Agreement.
Pauwelyn, supra note 54, at 1. See also e.g. Claus-Dieter Ehlermann, “Experiences from the WTO Appellate Body”, 38 Texas International Law Journal (2003), 469, 479.
Ehlermann, supra note 28, at 485.
In this sense, see e.g. Carl Baudenbacher, supra note 32, at 381.
See Alvaro Santos, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico”, 52 Virginia Journal of International Law (2011), 551, 570–585.
See Schepel and Wesseling, supra note 59, at 174.
Schepel and Wesseling, supra note 59, at 186.
Ehlermann, supra note 28, at 503.
Ehlermann, supra note 8, at 616.
Ehlermann, supra note 26, at 503.
Appellate Body Report, EC – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (16 January 1998), para. 115.
Ibid., para. 117.
Ehlermann, supra note 8, at 620.
Peter Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge University Press, 2005). Recent editions of the textbook are co-authored by current AB secretariat director Werner Zdouc.
Pieter Jan Kuijper, “Some Remarks on ‘Who writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement’”, International Economic Law and Policy Blog (9 October 2019), https://ielp.worldtradelaw.net/2019/10/guest-post-some-remarks-on-who-writes-the-rulings-of-the-world-trade-organization-a-critical-assessm.html (last accessed 11 October 2019).
See e.g. Robert Hudec, “Dispute Settlement”, in J.J. Schott (ed.), Completing the Uruguay Round: A Results-Oriented Approach to the GATT Trade Negotiations (Institute for International Economics, 1990), 180, 191; Debra Steger, “The Rule of Law or the Rule of Lawyers?”, 3 Journal of World Investment (2002), 769, 770; Debra Steger, “The Founding of the Appellate Body”, in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in Multilateral Trading System (Cambridge University Press, 2015), 447.
Peter Van den Bossche, “The Making of the ‘World Trade Court’: The Origins and Development of the Appellate Body of the World Trade Organization”, in R. Yerxa and B. Wilson (eds.), Key Issues in WTO Dispute Settlement: The First Ten Years (Cambridge University Press, 2005), 63, 64. See also Peter Van den Bossche, “From Afterthought to Centrepiece: The Appellate Body and Its Rise to Prominence in the World Trading System”, in G. Sacerdoti, A. Yanovich and J. Bohanes (eds.), The WTO at Ten: The Contribution of the Dispute Settlement System (Cambridge University Press, 2006), 289; Ehlermann, supra note 7.
Georges Abi-Saab, “The WTO Dispute Settlement and General International Law”, in R. Yerxa and B. Wilson (eds.), Key Issues in WTO Dispute Settlement: The First Ten Years (Cambridge University Press, 2005), 7, 10.
Goldstein and Steinberg, supra note 22, at 268.
Howse, supra note 1, at 31.
Appellate Body Report, US – Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R (24 February 2000), paras. 104–119.
Appellate Body Report, US – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R (30 April 2008), paras. 158, 160.
Howse, supra note 1.
Stone Sweet and Mathews, supra note 32, at 160.
Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (11 December 2000), para. 162.
Appellate Body Report, EC – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R (12 March 2001), para. 172.
See e.g. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (3 December 2007), para. 156.
See e.g. Appellate Body Report, US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (7 April 2005), paras. 304–311.
See e.g. Appellate Body Report, US – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R (16 May 2012), paras. 320–322.
See e.g. Filippo Fontanelli, “Necessity Killed the GATT: Art XX GATT and the Misleading Rhetoric about ‘Weighing and Balancing’”, 5 European Journal of Legal Studies (2012), 36, 40–41.
Lang, supra note 74, at 1099.
See generally Howse, supra note 1, at 72–75; Andrew Lang, “Twenty Years of the WTO Appellate Body’s ‘Fragmentation Jurisprudence’”, 14 Journal of International Trade Law and Policy (2015), 116.
At the time of writing, the situation looks quite dire. In December 2019, the US’s persistent veto on the appointment of new AB members left the World Trade Court without enough adjudicators to hear appeals.