Does It Matter Who Writes Legal Rulings? It Depends.

Does it matter whether rulings delivered by international tribunals are truly written by the adjudicators appointed to the case, as opposed to the permanent staff of a legal bureaucracy working in the background? In his Reply to our EJIL article, ‘WTO Rulings and the Veil of Anonymity’, Armin Steinbach claims there is nothing untoward about unnamed WTO Secretariat staff being the ones technically wielding the pen, so long as adjudicators retain final say over the ruling and its reasoning. In a prior EJIL Talk! post, we showed that international tribunals vary a great deal in their attitudes to this question. Some give assistants of the court a larger role, while others explicitly restrict that role to preserve the legitimacy of the outcome. What can we say about the importance of judicial authorship in the case of the WTO?

The best way of approaching this question may be by asking it in its most general form: under what conditions should we expect judicial authorship to matter? This question has received surprisingly little attention in legal scholarship. We take a first step in accounting for this variation, by arguing that who wields the pen is likely to matter if two conditions are met: (i) treaty texts are sufficiently ambiguous to offer interpretive discretion, and (ii) the range of resulting interpretations matters for subsequent legal outcomes. The WTO dispute settlement system, we argue, meets both these conditions.

Consider the status of authorship across different non-legal settings. At one extreme, we find the poet, who has maximal interpretive discretion. A thousand poets setting out to write a love sonnet will thus produce a thousand entirely disparate texts, and this variation of expression matters for the outcome—it is what determines whether the sonnet is considered good or bad, moving or not. In this context, it makes little sense to distinguish a sonnet’s “intellectual input” from its “style”; the two are indissolubly related. Compare this to literary translators, who also enjoy interpretive discretion, but less so than the original authors of the texts they are tasked with translating, since these primary texts restrict the range of their interpretation. Technical translators, in turn, have their range of interpretation narrowed further still, given how the texts they deal with aim for maximal precision. With each such narrowing, the weight put on individual authorship decreases further.

At the other end of this spectrum, consider a computer programmer. Tasked with writing a script to execute a given function, a thousand different programmers will produce a thousand different scripts, but these differences are unlikely to matter to the final product: the function will be executed in an identical way every time (setting aside a program’s speed, and what insiders may recognize as its parsimony, or even its elegance). In this case, although some measure of interpretive discretion remains, it has no impact on outcomes.

Where does legal authorship in general, and WTO dispute settlement in particular, lie on these two dimensions? How much interpretive discretion do the authors of legal rulings have, how much does the resulting range of outcome matter, and what does this depend on?

Authorship in the WTO

The treaty texts of the GATT/WTO contain considerable ambiguity. The fundamental principle of the trade regime, for instance, prescribes non-discrimination between “like” goods, but the meaning of the term “like” is left undefined. Some of this ambiguity exists by design. As in other international agreements, when negotiators were unable to arrive at an agreed-upon rule, they left interpretive gaps to be filled in at some later date.

The result is what economists call an incomplete contract; one that does not spell out the prescribed behavior for every case. The incompleteness of the contract has meant that adjudicators have little choice but to engage in what is sometimes called “interstitial legislating”. WTO rulings have thus taken up the debate over the meaning of words—“like”, “necessary”, “contribute”—in ways that have shaped the shared understanding of these key terms.

The WTO thus offers considerable interpretive discretion: a thousand adjudicators delivering the same finding of violation on the same case will produce a thousand differently worded rulings. Exercising interpretive discretion is itself a discursive practice. Giving meaning to words is done through more words. For this reason, as per Partasides above, “the act of writing is the ultimate safeguard of intellectual control”—because what is being controlled is the shared understanding of the treaty texts.

Of course, the authors of WTO rulings are a far cry from poets: they are bound by strict norms of legal writing. Nonetheless, this is a body that occasionally expresses itself in highly expressive terms. Consider a line like: “there comes a time when it is more important for the system of dispute resolution to have a definitive outcome, than further to pick over the entrails of battles past. With respect to zeroing, that time has come.” That sentence is from a concurring opinion in the final volley of a series of disputes over the practice of zeroing in antidumping calculations. How much in that passage is form, and how much is “intellectual substance”?

More to the point, does it matter whether this felicitous choice of words was written by an unidentified staff member from the Secretariat, or by the AB member writing a separate opinion? We suspect it does. If it transpired that this infamous passage was in fact the creation of an inspired Secretariat staff member—which is unlikely—it would cause discomfort. What is at the source of that discomfort? As per our argument, it would represent an especially salient exercise of discursive discretion, bearing on one of the more contentious issues in trade law. As a result, the question of who actually wielded the pen becomes especially weighty.

Recalling our two conditions, the next question is whether these differences actually matter on average. Here it is enough to point to how frequently WTO Members contest specific wordings in rulings; how often governments appeal favorable decisions to push for a different formulation; and how powerful governments express their power in part by successfully inserting their preferred wording into jurisprudence. In other words, the main actors at the center of WTO dispute settlement behave as if the words of rulings matter as much as the party they favor, or the treaty text the rulings “interpret” or elaborate on.

This should come as no surprise. Interpretations contained in WTO rulings loom large, because they are the only means by which expectations over the meaning of legal provisions converge over time. Indeed, Members have proved unable to provide authoritative interpretations of their own, largely owing to the high threshold set by the consensus rule. Thus, insofar as we now have greater certainty around the meaning of terms such as “like”, “necessary”, and “contribute” in the WTO context, it is thanks to the gradual accumulation of jurisprudence. As a result, the interpretive discretion that adjudicators have been required to exercise has had a considerable discursive impact, affecting subsequent legal outcomes in numerous ways.

What connects our two conditions of interpretive discretion and discursive impact is the notion of precedent. Under a system of formally binding precedent, interpretive discretion has a decisive impact on legal outcomes, because it directly shapes subsequent interpretations. Of course, the WTO, as the rest of public international law, lacks a rule of stare decisis. And yet there is general agreement over the idea that there nonetheless exists (like it or not) some de facto form of precedent-following. Interestingly, exactly how such de facto stare decisis operates has been driven by various choices of words by adjudicators over the years. The AB thus famously ruled that “absent cogent reasons”, its rulings should be followed by subsequent adjudicators, and it is this precise choice of words that the US has objected to in turning against the dispute settlement system. Does it matter whether the “absent cogent reasons” condition originated with an AB member or a Secretariat staff member? We suspect it does.

Close readers of WTO rulings will be familiar with similar discursive ticks that reoccur across time, coinages that have had far-reaching implications. The notion that the treaty texts should not be read “in clinical isolation” from public international law, for instance, has had deep implications, which would have been different had the chosen formulation been even slightly different. As Nicholas Lamp put it during a related discussion, in an apt turn of phrase the authorship of which bears noting, “with certain figures of speech come certain habits of mind.” Indeed, even within a given ruling, who wields the pen might be thought to matter more in those passages that allow greater discretion than in those that rely on rote formulae, and thus offer less discretion, and less of a chance of affecting subsequent outcomes.

In the same way, if a promising student had written Professor Steinbach’s reply to our article on the basis of his precise instructions, they may not have used the tendentious language about “the tempting fruits of data mining”, or referred to our alleged portrayal of a “power-mongering WTO Secretariat”—but these are part and parcel of Steinbach’s argument, and they may in fact prove its most forceful aspect, precisely because they are the least supported. Rhetorical flourish, as Steinbach’s reply and the separate opinion in US—Continued Zeroing both exemplify, often has a potency that steady reasoning lacks.

Tribunals know this, and deploy such rhetorical flourish strategically. As one of us has shown in separate work, WTO rulings tend to resort to more emotive, affect-laden language when confronted with more politically controversial issues. That is because one of the functions of international tribunals is to furnish governments with the discursive resources that allow them to sell compliance domestically, in the face of opposition from powerful domestic groups who profit from the violation. As the literature at the juncture of political science and international law attests to, international courts can provide governments with valuable political cover. But this relies in large measure on the ability of governments to point to the charismatic authority of judges. It carries less weight if WTO rulings amount to technocratic solutions crafted to strike a balance between countries’ obligations and their political sensibilities. Technocrats enjoy less gravitas than judges. In apparent recognition of this fact, the WTO features elements of stage management that highlight the identity of the adjudicators, while concealing the role of Secretariat members. Whereas the latter are never mentioned, WTO rulings are solemnly “Signed in the original in Geneva this 20th day of January 2009 by: […]”, with a full page for the adjudicators to give their imprimatur to the ruling. The WTO system thus attempts to imbue adjudication with the unique authority of a judicial process, while retaining the high level of political control more commonly associated with a domestic process of agency review.

This brings us to Steinbach’s last point, which takes up the question of legitimacy. Steinbach argues that the Secretariat’s considerable influence over dispute settlement comes at no cost to Member States. The first thing to point out is that the Secretariat’s role in dispute settlement is indeed the Members’ own creation. Yet as the literature on principal-agent relations suggests, the incentives of agents have a way of drifting away from those of their principals.

Yet Steinbach is correct that insofar as the Secretariat’s influence has outgrown the designers’ intent, governments are not the ones most directly affected by it. As the full role of the Secretariat becomes clear, it is most likely to affect the perceptions of domestic audiences, from NGOs to market actors. It is not internal legitimacy that stands to suffer, but external legitimacy. That is because the public authority of rulings delivered by the WTO is bound up in the appearance of a judicial process driven by appointed adjudicators, those who sign “in the original in Geneva” on a given day.

In his 2012 book, How Interpretation Makes International Law, Ingo Venzke discusses the determinants of authority thus:  

“Acceptance is a function not only of the content of the claim that is being made or of the interests and convictions of the accepting actor, but also of the author of the claim. What I say as a scholar about the law has, when compared to a report by the WTO Appellate Body … no influence on what the law means. What matters in legal interpretative practice is semantic authority.”

Venzke’s self-effacing conviction in his own lack of authority, as compared with that of AB rulings, might be lessened if it emerged that the authors of rulings—that is, those individuals actually deploying the semantic resources in question—are legal experts very much like him: permanent staff of the WTO, rather than the individuals publicly vested with charismatic authority of the figure of the judge.

In the passage above, Venzke is drawing on Hannah Arendt, who famously held that “If authority is to be defined at all, then, it must be in contradistinction to both co­ercion by force and persuasion through arguments.” WTO adjudicators’ ability to have sovereign nations, and their democratic audiences, accept their rulings as valid relies not merely on the legal soundness of their reasoning, but also on their very status as adjudicators.

In sum, because of the interpretive discretion that the WTO treaties offer, authorship becomes a source of authority. It bears mention that these terms, “author” and “authority” (not to mention “authentic”), share a common etymology in the Latin auctor, which means to “originate”. The more that origin matters for outcomes, the more the system’s perceived legitimacy rests on the originator being who they claim to be.

As the full role of the Secretariat becomes more widely known, one implication of our discussion is that the institution may forfeit some of the unique authority that comes from the appearance of a strictly judicial process and, as it is now, may be more aptly characterized as a sui generis process of international administrative review, where the result is as much a technocratic exercise as a judicial one. Governments cannot at once retain political control over the proceedings by relying on ad hoc judges picked from the ranks of trade officials, and draw the full benefit that comes from a system that is seen to outsiders as the “World Trade Court.” Something has to give. As WTO negotiators reconsider the design of the institution’s rightly celebrated dispute settlement system in the years to come, they will have to decide what that will be.