VJIL Symposium: Gregory Shaffer and Joel Trachtman Answer to Brewster, Howse, and Pauwelyn

[Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School. Joel P. Trachtman is the Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

We were delighted to learn that Profs. Brewster, Howse, and Pauwelyn had agreed to comment on our article, Interpretation and Institutional Choice at the WTO, on Opinio Juris. Their comments add to our understanding of the important question of how drafting and interpretive choices made by treaty-writers and judges can be understood in terms of allocation of authority. Rachel Brewster adds some important dimensions to this study, asking whether we can identify pro-liberalization or majoritarian impulses in Appellate Body decision-making. Rob Howse illuminates these questions by noting that the Appellate Body seems determined to resist pressure from other branches of the WTO. Howse also highlights the delicate and evolving line that the Appellate Body seems to tread between referring to non-WTO international law in circumstances where it may be jurisprudentially questionable to do so, and avoiding the challenge to the legitimacy of the WTO legal system that might arise if the Appellate Body were to ignore non-WTO international law in its decision-making.

The commentators capture our aim to provide an analytic framework for helping lawyers, judges, scholars, students, and policy makers understand and evaluate institutional choices in the drafting and interpretation of the WTO agreements. These choices have welfare and distributive consequences, which are mediated by how the choices delegate and allocate authority to different social decision-making processes. In the article, we apply the framework both to choices in the drafting of the WTO agreements and their interpretation in case law.

Our goal in writing the article was to provide an analytical template in order to highlight the ways in which different drafting and interpretive choices may be understood in terms of their allocation of decision-making to different institutions, including the market, ultimately affecting social welfare and participation.

Some lawyers and legal scholars may feel uncomfortable with the social science convention that positive assessment is not to be influenced by normative analysis, but is rather to inform it. In our article, we follow this convention and avoid providing our own normative assessment of the interpretive choices made by treaty-writers and judges. Our comparative institutional analysis is rather intended to illuminate the consequences of choice by providing a template for analysis. For example, interpretive choices include the decision to limit the role of non-WTO law in WTO dispute settlement, or to defer to certain standard-setting bodies in WTO dispute settlement. We do not engage in empirical analysis of the impact of these choices in particular cases. Rather, we draw suggestive links between these choices and dependent variables that can be understood as normative desiderata: principally, welfare enhancement and participation in social decision-making. We explicitly note that there are tradeoffs in these institutional choices, and that the tradeoffs must be evaluated both generally and on a case-by-case, contextually-situated, basis.

Therefore, our article should not be understood, as Joost Pauwelyn suggests, as making conclusions about the magnitude or quality of these links, or as he puts it “which type of authority is ‘better’ in welfare and participation terms.” Nor do we equate all WTO law to “trade liberalization” but rather address the disparate values at stake which, in turn, call for nuanced comparative institutional analysis. The statements in our article that he cites for these propositions should be read directly, and the reader will readily see that we do not advocate any type of authority as “better” from a general vantage. For example, he says that we argue that treaty drafters can be presumed to maximize welfare and offer more transparency, accountability and legitimacy than the judiciary, citing page 111 of our article. Instead of advocating for treaty rules rather than judicial standards, our aim, which we thought was explicit, is to set up bases for evaluation. It is certainly true that treaty drafters have no monopoly, or even advantage, when it comes to welfare maximization, transparency, accountability, or legitimacy. But there is great variation in terms of the institutional choices at stake, which our article elaborates. Here is the relevant language from page 111 in full, regarding treaty drafting:

To the extent that the WTO treaty is understood as a contract freely entered into, we can assume that specific rules agreed among the parties are designed to maximize welfare. Whether negotiators are maximizing economic welfare or public choice welfare depends on the accountability of the negotiators to their own citizens. We also can assume that a freely concluded treaty has reasonable distributive consequences, if we ignore strategic problems and asymmetric allocation of power. In terms of transparency, accountability, and legitimacy, these specific rules draw a great deal from the domestic processes of negotiation and ratification: If domestic politics are transparent, accountable, and legitimate, the rules produced are more likely to be so as well.

Surely this cannot fairly be read as an argument that the political process by which treaty rules are specified is somehow better than adjudication, or other sources of authority. Rather, it is a call to further analysis based on the comparative institutional analytic framework that we provide and apply to WTO texts and case law. Similarly, we never argue, or suggest, that the WTO is “better” than standard-setting bodies. The language that Pauwelyn cites at page 113 of our article sets up some comparisons between the WTO and standard-setting bodies in terms of welfare and legitimacy. In addition to the language that Pauwelyn quotes from page 113 is language explaining how the work of standard setting bodies can be more efficient than that of formal treaty-making, and how it involves different types of participatory processes. In the case of each institutional alternative, we note both deficiencies and attributes which need to be assessed from a comparative international perspective. Our work thus cannot be understood to advocate the WTO over standard-setting bodies

However, we note that Professor Pauwelyn explicitly takes the position that standards or informal norms are “in many cases” more accountable and efficient than traditional international law because they “often” involve “thick stakeholder consensus.” For the reasons we articulate in our article, we believe that there is still room for traditional international law, and that such international law can intersect with less “formal” standard-setting processes in different ways (as explained by one of us here in the project to which Professor Pauwelyn refers). As to Professor Pauwelyn’s broader point, we believe that it is important to address not only the reasons for interpretive choices, but also their consequences, in the hope that such analysis will indeed supply reasons for choice. Our analytic framework, in this sense, can be complementary to his. Nuanced comparative institutional analysis may be demanding, but it is also essential. We provide an analytic framework of how to do it, and we have elsewhere applied it to different WTO decisions, such as here.

We are thankful to Professor Howse who addresses recent cases in the evolution of WTO jurisprudence to which our framework applies, such as EC-Aircraft and China-CVDs. Our one caveat is to Professor Howse’s last sentence where he states that the Appellate Body (AB) “provides a finality of interpretation that cannot be disrupted through political action in the WTO, at least not easily.” This statement is correct in comparison with the former GATT system. We just make two points with which we imagine Professor Howse agrees. First, from a descriptive perspective, our article notes that the WTO dispute settlement system interacts in a dynamic manner with other political and market processes, and thus the AB decision is not final, in this sense. Parties, for example, typically negotiate after the AB decision and in light of it. Moreover, as our article points out, the AB decision may be informed by the AB’s anticipation of likely responses. Second, from a normative perspective, since the AB judicial-like process is also an imperfect one, subject to tradeoffs, different forms of formal and informal checks are important which in order to induce the AB to allocate authority in different ways through the interpretive choices that it makes, whether involving judicial balancing, deference, process-based review, or strict scrutiny under a bright line rule.

Finally, Brewster nicely captures the broader implications of our framework for assessing not only treaty drafting and interpretation in the WTO context, but international law more broadly.