The WTO Secretariat’s ‘Open Secret’: Unpacking the Controversy

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Over the past two years, we have had the opportunity to present the findings from our EJIL article, ‘WTO Rulings and the Veil of Anonymity’, to a number of audiences spanning fields from international law to political science and quantitative methods. Though the article makes a number of claims about transparency in judicial settings, the design of trade rules, and the anonymity of dissenting opinions, the one finding that has invariably attracted most attention has been our use of text-as-data methods to show that the permanent staff of the WTO Secretariat have more influence over the final text of WTO rulings than the adjudicators themselves.

This finding has met with two quite different responses. Initially, the reaction was disbelief: how could adjudicators—over whose appointments litigant governments argue vehemently, and most often fail to agree on—have so little influence over the actual text of rulings which feature their signature? These incredulous readers pushed us to ensure that our findings were not due to some artifact of the data, a confounding variable that correlates with dispute type, citation practices, or the manner in which panelists or Secretariat staff are appointed to specific cases.

Once we accounted for these possibilities, by controlling for a battery of dispute characteristics, running a series of placebo tests, and obtaining the same result using two entirely different text analysis approaches, we were met with a very different response. This one came from Geneva insiders, familiar with the inner workings of the WTO system, who conceded that while Secretariat staff do in fact draft WTO rulings just as our findings suggest, there is, after all, nothing remarkable about this. In many tribunals, various court assistants are involved in writing the first draft of rulings. Moreover, given the Secretariat staff’s professionalism and expertise, this is all to the good. There is nothing untoward about Secretariat staff being the ones technically wielding the pen, so long as adjudicators retain final say over the ruling and its reasoning.

In his Reply to our findings, Armin Steinbach manages to embody both of these views, which offers us a welcome opportunity to respond to them in turn. As a legal scholar and former WTO panelist, Steinbach has an inside view of the system, from which he responds to our findings with three points: (i) the first is that our approach does not actually capture “legal authorship:” while our methods pick up who holds the pen, they cannot say who wields control over what he varyingly calls the “intellectual authority,” “intellectual input”, “intellectual substance”, or “substantial content” of rulings. (ii) Steinbach then argues that our findings are actually “not surprising” given the expertise of Secretariat staff. Since they are “apt in legal drafting and master the presentation of legal arguments”, “leaving the final drafting [to the Secretariat] is then a matter of sensible workload sharing.” (iii) Steinbach concludes by arguing that the Secretariat’s influence is thus normatively unproblematic: by enforcing consistency across rulings, it does not take away any power from Member-States over the adjudication process.

In response, we offer two points of our own. First, while “not surprising” to insiders, the Secretariat’s influence remains a closely guarded “open secret”, and one that has become more closely guarded with time. This results in an odd disjoint: the Secretariat’s expansive role is at once unsurprising and something that is best not talked about. This may be because—while tribunal assistants do play important roles in a number of courts—the WTO is actually unique among state-to-state tribunals in the sheer scope of that influence. Imagine if clerks at the US Supreme Court were the ones appointing the justices, controlling their remuneration, and providing them with their starting arguments and questions for the parties before the justices ever met to discuss a case. These are all functions the WTO Secretariat has come to wield.

Secondly, Steinbach and others cling to a specious distinction between “style” and “substance”. They claim there is no issue with staff drafting rulings, so long as adjudicators retain “intellectual control” over the ruling’s “intellectual substance”. Writing, by contrast, is presumably carried off with no recourse to the intellect. In the case of the WTO, we suggest, the distinction between “style vs substance” is especially illusory, and we outline some of the reasons why.

As we insist in our conclusion, however, this does not lead us to take a normative stance either for or against a powerful Secretariat. Yet as we argue in a related article in the AJIL, full recognition of the Secretariat’s current influence over dispute settlement proceedings should lead us to recast the system in a new light, and view WTO rulings as more akin to technocratic outcomes than judicial ones. 

An Open Secret

As its title suggests, our EJIL article is primarily concerned with transparency in judicial settings. In many ways, we are interested precisely in the gap between the two reactions to our findings: the space between disbelief and knowing shrugs. Our main argument, which Steinbach does not mention, is that the WTO Secretariat’s role, such as it is, remains hidden from view, and that this opacity exists by design: it serves to strike a delicate balance between judicial autonomy and political control. A powerful but unseen Secretariat allows Member-States to continue to rely on ad hoc adjudicators picked mostly from the ranks of trade officials, rather than professionalized judges, who might be insufficiently deferential to government interests.

That the full role of the Secretariat remains hidden is an essential part of this compromise, one that offers the appearance of a strictly judicial process, while retaining considerable political deference to state interests, all the while ensuring that egregious mistakes of law, such as occurred before the creation of appointment of Secretariat staff to disputes in the 1980s, would not occur.  The result has been described as an “open secret”: a fact known by a closed group, but not talked about openly. As Tommaso Soave quipped in the excellent collected volume, Legitimacy of Unseen Actors in International Adjudication, edited by Freya Baetens, the WTO Secretariat is akin to Area 51, the military base whose existence the US government does not officially acknowledge.

This is how the Secretariat itself undoubtedly prefers it. While most aspects of the WTO have grown increasingly transparent over the last two decades, the role of its Secretariat has actually become more opaque: the names of Secretariat staff assigned to specific panels used to be made public; this practice ceased sometime after the first decade of the WTO. It will come as no surprise that when we asked the WTO for information about what staff were assigned to the remainder of WTO panels, our request was politely declined. And although the Secretariat of the Appellate Body performs a similar role to that of panel staff (Steinbach is right when writing that “there is no reason to believe that the WTO AB division would be less influential, less competent, or composed of less experienced lawyers than their colleagues from the Legal and Rules division”), the names of Appellate Body staff working on a specific appeal have never been disclosed.

A handful of legal scholars did draw attention to this opaque role and its implications. Weiler referred to “schizophrenia in the self-understanding of the Secretariat” back in 2001. As he elaborated:

“the relationship between Panels and legal secretary is not only skewed in terms of command of the law but is, overall, neither transparent nor healthy for a judicial system. Organically, the legal secretary reports to his or her supervisor. Their de facto primary loyalty is normally not to the ‘judges’ at whose service they are working.”

Thus, while insiders like Weiler have long provided anecdotal reason to suspect the Secretariat’s degree of influence, no one had offered empirical evidence of it. This is what we do in our EJIL article.

There is something incongruous in the claim that “it is not surprising” to find Secretariat staff exerting greater influence over the texts of rulings than the adjudicators themselves, while simultaneously insisting that it would be better if the fact were not too widely known. This, however, is likely to change. As growing attention is paid to the “unseen actors” in international organizations, perhaps no other setting is likely to be as affected as the WTO. The current equilibrium is likely to prove unsustainable, relying as it does on a powerful but hidden Secretariat. In our companion article in the AJIL, we outline some of the possible paths for reform now facing the institution.

Style vs. “Substance”

One recurrent response to the revelation that Secretariat staff write both the initial take on every dispute (the so-called “issues paper” that lays out relevant case law and possible solutions for adjudicators before they ever meet to discuss the case), and the draft of the final ruling, is that writing and deciding are wholly separate functions. And while the Secretariat may hold the pen, it is the adjudicators who have final say. As Steinbach puts it, our analysis can only ascertain “stylistic identity” and thus it “cannot say much about the legal substance that is merely manifested by that style.”

The premise that Steinbach and others cling to is that one can separate the pedestrian act of writing from the strictly cognitive task of adjudication. The true legal author, in this sense, is whoever originates the “substance” of the ruling; how it is expressed, or by whom, is of comparatively little importance.

Legal scholars presumably do not apply these loose standards of authorship to themselves. If it were suddenly revealed that Steinbach, to save time, had given precise instructions to a promising student to write up his response to our findings on the basis of the three claims contained in his abstract, his reputation would likely suffer. If he then insisted that the “intellectual substance” of his argument was entirely contained in his instructions to the student, and that he “maintained control” over the ultimate version of the article, his reputation would suffer some more.

That is because the academic world generally attributes authorship to the person holding the pen. This reflects a belief that words in academic discourse matter. It speaks to a set of expectations around the figure of scholar as sole author of her scholarly output. So while scholars frequently rely on research assistants to help them with assembling data and reviewing the literature, asking a research assistant to draft the resulting article without recognizing them as a co-author would swiftly be condemned as academic fraud.

It is worth pointing out that various tribunals abide by similar principles of authorship. The United Nations Commission on International Trade Law (UNCITRAL), in its Notes on Organizing Arbitral Proceedings, draws clear boundaries in this respect: “it is recognized that secretaries are not involved and do not participate in the decision-making of the arbitral tribunal.” The International Council for Commercial Arbitration (ICCA) similarly holds that “while the arbitral secretary may be present during the deliberations, care should be taken by the tribunal not to allow the arbitral secretary to participate in the deliberations”. Similarly, the recent USMCA trade agreement between Canada, the US, and Mexico explicitly provides that “[o]nly panelists may take part in the deliberations of the panel. Assistants, Secretariat personnel, interpreters, or translators may be present if the panel determines they are necessary” (see Rules of Procedure for Chapter 31, Article 9). The International Chamber of Commerce (ICC) used to explicitly preclude Secretariat staff from engaging in substantive legal work:

“The duties of the administrative secretary must be strictly limited to administrative tasks. … Such person must not influence in any manner whatsoever the decisions of the arbitral tribunal. In particular, the administrative secretary must not assume the functions of an arbitrator, notably by becoming involved in the decision-making process of the tribunal or expressing opinions with respect to the issues in dispute”.

The EU-Ukraine Association Agreement states that “[t]he drafting of any ruling shall remain the exclusive responsibility of the arbitration panel and shall not be delegated” (see its Rules of Procedure for Dispute Settlement, paragraph 13).

And let it be clear: WTO staff not only draft rulings after the panel’s deliberations. They write an “issues paper” and draft proposed solutions even before the adjudicators have ever met. In addition, they are not only present but actively participate in the panel’s confidential, internal deliberations which usually start with a presentation of the Secretariat’s proposals (as Steinbach points out, “the judges at the European Court of Justice … deliberate among them without presence of the référendaires”). This sequence is important: it is not as if panelists first express their individual views, then debate collectively and finally instruct staff to draft a ruling. Instead, staff takes the first steps and provides proposals to the three panelists as a collective (they do not normally assist or otherwise empower individual panelists) after which it is, so to speak, for panelists to “rebut” staff proposals. Given the asymmetries in expertise and institutional knowledge between staff and panelists and the culture of following precedent and avoiding dissent, this protocol (both the sequencing and the fact that advice is to the collective, rather than individual panelists) is key. It also risks instilling “groupthink”: staff views and proposals become the default option; it takes a confident, well-informed and vocal panelist to move the ruling away from staff views, let alone to write a dissent. As dissents tend to deviate from the conventional, staff view, the adjudicator herself will need to put more effort in explaining her disagreement. Though staff may still be assisting with the writing of dissents, adjudicators are, therefore, more likely to “hold the pen,” writing what are normally brief dissents. In this sense, Steinbach is correct that “the alleged influence of the WTO Secretariat is not one prevailing consistently across all spheres of dispute settlement alike”. This also explains why in our EJIL article, we can detect adjudicator authorship of Appellate Body dissents, all the while finding clear evidence that staff write panel rulings.   

Legal observers have come down on both sides of the question. Similarly to Steinbach in his reply to our article, Hugh Thirlway points to Registry staff assisting ICJ judges (where the role of staff, similarly to the WTO, has arguably grown with time), and draws a distinction “between the decision on the issues in a case, and the expression of that decision in the best words possible.” In his view, “[t]he first task is for the judges alone; but the Registry staff can and do help in the performance of the second”. Yet he immediately follows this up with a warning: “[l]aw is a matter of words; and it may be said that the choice of words to convey a legal point is in itself the decision of, or a decision on, that point”. In a 2002 article on “the fourth arbitrator”, Constantine Partasides also points to the difficulty of separating the two: “[t]he act of writing is the ultimate safeguard of intellectual control. An arbitrator should be reluctant to relinquish it”.

All these positions are vested in a given judicial setting. By contrast, our own stance is informed by a more comparative approach, one that highlights the great variation in the treatment of legal authorship across different tribunals. Given this variation, the most relevant question would seem not so much whether authorship matters, but under what conditions should we expect it to matter? This is the question we take up in our second EJIL Talk! post.

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    Comments

    Alexander Ferguson says

    August 19, 2022

    Thanks for the post and interesting work. Picking up on the points about dissent, two effects are identified from lifting the veil: leading a dissenter to be more reluctant or more willing to dissent (p16-17) . How do you account for the unseen effect of the dissenter when they are able to influence the other two to their position? Is it more important to consider when a dissenter is able to sway the other two? Although this may be harder to identify?

    James Flett says

    August 22, 2022

    It would be interesting to hear more about whether or not it matters if there is controversy between two actors: if not, do the precise words matter so much (there are different ways to say the same thing); if yes, that usually drives towards ambiguity as compromise. It would also be interesting to focus on application (which is usually 95% of dispute settlement) rather than interpretation. If a particular measure is to be classified as a "tax" within the meaning of the law (as opposed to interpreting the term "tax" in abstract terms) are the chosen words more or less important, or does it make no difference?