A critical reaction to Joost Pauwelyn and Krzysztof Pelc’s “The WTO Secretariat’s ‘Open Secret’: Unpacking the Controversy”

In their EJIL:Talk! posts of August 18  and 19, in which they respond to a Reply by Armin Steinbach, Joost Pauwelyn and Krzystof Pelc heavily criticized the role of the WTO Secretariat in supporting the WTO panels. In their opinion, which is based on previous research by them published in a recent issue of AJIL and a recent issue of EJIL, they submit that (if I may summarize the authors’ position with my own words) the set-up of the panels system, based on non-professional, often occasional, ad hoc panelists  (arbitrators), mostly picked by the Director General of the WTO ( de facto by the Secretariat) among trade diplomats, with the Secretariat holding the pen and actually writing the draft of the reports that decide the disputes is unique as compared to other international adjudicatory systems. This constellation, which moreover, in their opinion, is not  generally known, thus offending the requirement of transparency, compresses the proper role of the adjudicators to the point of undermining the legitimacy of the decisions and rendering the system akin to administrative review rather than adjudication. In their view “those who holds the pen make the decision” while Steinbach maintains that intellectual authorship is not affected by the fact that an actual drafter acts pursuant to a decision reached by the adjudicator.

In addressing the debate, I would like to debunk the posts’ authors criticisms based, in part, on my experience and knowledge as a “WTO insider”, having been a member of the WTO Appellate Body from 2001 to 2009, besides having had experiences in other international adjudicatory contexts. The relevant questions are in my opinion the following:

• Is it true that the WTO Secretariat (Legal and Rules divisions) has such an extensive, unique role?
• Is this by design or as an unforeseen result of the set-up?
• What are the criteria for deciding whether this situation is not acceptable and needs to be corrected?
• What are the preconditions for such a correction?

Does the WTO Secretariat have an extensive and unique role in the adjudicatory process?

It is true that the system relies on the assistance, expert knowledge, drafting abilities of the able lawyers of the WTO Secretariat in researching the factual and legal basis  of cases and in the actual drafting of the panels’ reports at a level not found in other international adjudicatory systems. This is not to say that other systems do not rely extensively on legal staff (be they a part of a collective pool or clerks/référendaires assigned to individual judges). In my view, the authors unduly amplify the differences in this respect between the WTO and other Courts. Thus, it is common knowledge in Luxemburg that, in cases where precedents are clear, the reférendaires of the CJEU meet among themselves to prepare decisions’ drafts.

It is not necessary to have recourse to complex computer-based stylistic analysis of the texts to realize that panels’ reports are the result of a collective work in which the staff provides a major contribution. Also other courts, such as the ICJ, the CJEU, or the German or Italian Constitutional Courts, have their typical distinct style that of course stems from the collective work of the institution (judges and staff) and ensures continuity, quality and distinctiveness to the output. No one really criticizes these courts because of this.

I would add that most of the text of any decision comprises the history of the dispute, facts of the case (the respondent’s measure(s) at issue), summarizing the parties’ arguments, which can be routinely assigned to staff. I can assure the readers that Appellate Body (AB) members – and so I believe panelists – read, review and correct each single word of various successive  drafts  before putting their signature under a final report.

When it comes to really important issues, no one can really believe that it was not the panelists in charge – or the members of the AB division – that decide the key issues, such as in Hormones, Shrimp and Turtle, the GMO case (not appealed), or the Asbestos case. The Authors do not doubt that famous dicta such as that the WTO does not exist in “clinical isolation” from public international law, or “absent cogent reasons” as standard for following precedent, come from the mind, research and pen of the adjudicators.

Panelists are chosen with care, especially when the subject matter involves  new, politically sensitive issues. I can testify that the Director General Azevedo in person begged Georges Abi Saab to accept to chair the Ukraine-Russia panel which had to address for the first time Article XXI GATT (and which was not appealed).

Is the role of the WTO Secretariat by design or as an unforeseen result of the set-up?

It is self-evident that ad hoc non-professional panelists could not absolve their function without a massive support of dedicated competent legal staff. Part-time  panelists, who are normally engaged in other activities, may not always have, (understandably) the legal writing abilities, the full knowledge of the ever-growing WTO case-law and  availability, required to produce within a limited period of time the sophisticated text of a report, although they will be fully aware of the issues and how they are deciding them. Is this the result of the GATT tradition, or of the desire of the Uruguay Round negotiators not to “over-judicialize” the dispute settlement system, or the belief that the Members’ experts could have a valuable role as panelists, ultimately relying as to legal correctness on the introduction of a professional AB to review panel reports? All these factors may have had an impact. Where I strongly disagree with the authors, is that through the Secretariat WTO Members would exercise a political control on the panels. The staff is independent and professional and is not answerable to the Members, even less to individual Members (although it is common knowledge that the US exercised a distinct influence on the Rules Division to which trade remedies cases where assigned, at least as long it was headed by an American: cf. the persistent upholding of zeroing by panels notwithstanding its rejection by the AB). Rather, the participation of national experts as panelists enhances the sense of participation and ownership of the system by individual Members, as I have personally experienced, much to my surprise, when I visited high trade officials and legal departments in some capitals.

I also disagree that since the Secretariat has often an important role in selecting them, panelists are under the “control” of the Secretariat. The lawyers assisting panelists are different from the senior staff members assisting the DG in the selection. Should this function be considered unsatisfactory (but is it so?) a different selection system should be envisaged.

What are the criteria for deciding whether this situation is unacceptable and needs to be corrected and would be the preconditions for such a correction?

I come now to the question whether this extensive or pervasive role of the Secretariat is detrimental? I would answer in the negative if the yardsticks are – as they should be – the independence and impartiality of the adjudicators, the quality (correctness, accuracy) of the legal analysis and of the result, the consistency of the jurisprudence for the benefit of the whole membership. Does this situation prejudice the legitimacy of the system and of individual decisions? Discounting that losing parties always tend to complain, looking at the DSB minutes, at commentators and other stakeholders’ reactions, criticism of the system does not appear to be focused on this set-up.

This is not to say that, especially as an academic, I would not welcome more “autonomy” and individual responsibility by panelists, in accordance with the standard feature of international adjudicatory bodies; but would this improve quality, reputation, legitimacy? Coming to the preconditions to attain such a result, I dissent from the authors’ suggestion that the names of the Secretariat’s members assigned to each panel should be disclosed. Their choice (by the head of the Division) may depend on specialization, availability, linguistic abilities. Personalizing the position of the staff would run contrary to the increased independent role of panelists that the Authors advocate. It is a fact that the names of the secretary of ICSID tribunals are published in the awards and that assistants are named  in the recent panel reports in the EU-Ukraine and EU- South Africa/SACU disputes under the respective FTAs – but does it make a difference?

Enhancing the role of the panelists would require professional panelists (at least the chair) chosen from a limited roster of dedicated high-quality legal/trade experts which should moreover be compensated for such availability, a substantial change from the current set-up. Informal proposals in this direction were made twenty years ago, notably by the EU, but did not convince the membership, which is apparently satisfied with the current set-up. On the contrary, WTO Members agreed after 2015 that the number of legal staff be increased to cope with the increase and complexity of cases.

Finally, this “opaque” role of the staff may have advantages. By exercising an extensive role, the Secretariat puts somehow in the shadow individual panelists. By being “faceless” they are protected from being singled out by unsatisfied powerful litigants. Indeed, it is an open secret at the WTO that some frequent panelists, although recognized as prominent experts, have been “blacklisted” by certain powerful members because of their decisions. The difficulties often encountered by the DG in the formation of panels under Article 8(7) DSU (on which litigants should not have a say while they often do object to names proposed) is a testimony of this situation.