National Antipathy and Judicial Bias at the WTO

The WTO Appellate Body has four new members: Ms Lilia R. Bautista of the Philippines and Ms Jennifer Hillman of the United States for four years commencing on 11 December 2007; and Mr Shotaro Oshima of Japan and Ms Yuejiao Zhang of China for four years commencing on 1 June 2008.

The most interesting part of the appointment process was the Taiwenese diplomatic manuevers with respect to the Chinese candidate. Simon Lester over at the International Economic Law and Policy Blog has been covering the issue closely. (See here, here, here, and here).

I must say that I think Taiwan has a point in challenging the appointment of a Chinese Appellate Body member. When we discuss impartiality and independence of international judges or arbitrators we typically focus on bias in favor of a particular party. International arbitration rules quite frequently prohibit an arbitrator of the same nationality as one of the parties from serving on the panel. There is a presumption of bias based on nationality. That may be part of Taiwan’s concerns: Will a Chinese judge be willing to rule against China?

But the Taiwenese concerns extend beyond that. They also fear national antipathy toward another WTO Member State. Can a judge from China have the requisite impartiality and independence such that he would not automatically rule against Taiwan in any dispute pending before the WTO? A Taiwan spokesman stated that Taiwan “has reservations about WTO’s planned appointment of Zhang Yuejiao because in China the judicial system takes orders from the Chinese government…. We know this too well because we have had many unpleasant experiences of being unfairly treated by China in international organizations, so we must protect our interests.” The Taiwanese delegate reportedly said that “we have deep concerns on the question of impartiality and qualification of one of the recommended candidates.” It’s a fair question.

I have seen similar concerns raised before. When I worked at the Iran-United States Claims Tribunal I watched the Iranian judges display quite open and obvious bias toward Iran and against the United States. In fact, when I was there in the early 1990s one of the American judges surveyed the rulings of the Iranian judges and found that in the entire history of the tribunal no Iranian judge had ever ruled against an Iranian party or ruled in favor of an American party. (Needless to say the converse could not be said of the American judges).

Will the Chinese Appellate Body member have the requisite judicial freedom and independence to rule in favor of Taiwan or against China in forthcoming WTO disputes? Time will tell.