VJIL Symposium: Rachel Brewster Comments on “Interpretation and Institutional Choice at the WTO”

[Rachel Brewster is an Assistant Professor of Law at Harvard Law School.]

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.

I have the pleasure of commenting on Gregory Shaffer and Joel Trachtman’s innovative and important article, “Interpretation and Institutional Choice at the WTO,” recently published in the Virginia Journal of International Law. The authors present an analytical framework for assessing the interpretative choices made by treaty drafters and the WTO judicial bodies based on social welfare and participatory values. This framework provides international law scholars with a comprehensive overview of the different forms by which international law can be established (the drafting stage) and the various methods by which the law can be understood and applied (the interpretation stage). By integrating the drafting and the interpretation processes, the authors address important questions in international law concerning the tradeoffs treaty drafters consider, how specific texts like the WTO Agreements relate with other international laws and institutions, and the consequences of different approaches to treaty interpretation. The article is of great interest to international legal scholars and also sociologists, economists, international relations theorists, and policymakers.

In this short comment, I want to highlight one point that I particularly appreciate in the article and want to explore further. It is the relationship between the drafting text and the interpretative methods of the Appellate Body. One of the few places that the treaty drafters were explicit about the interpretative methods that WTO panels and the Appellate Body should use was in the Anti-Dumping Agreement. That interpretative rule requires deference to national government actions when the action is within a “permissible interpretation” of the Agreement. As the authors note, several commentators believe that the Appellate Body has not been constrained by this rule and has adopted a more exacting substantive review process than the drafters intended. Indeed, this issue has raised the question of whether Appellate Body rulings have precedential status for subsequent WTO panels, because panelists have disagreed with the Appellate Body’s interpretation of the appropriate standard and failed to apply the Appellate Body’s rule.

This issue seems to be an interesting one for the authors’ framework because it raises several questions. First, what drives Appellate Body decision-making? As the authors discuss, the possibility of a legislative veto is relatively low because of the reverse consensus rule and the infrequency of new multilateral agreements (although the Appellate Body selection process may remain influential). As a result, the interpretative approach of the Appellate Body (Part III of the Article) is particularly important to international law scholars and international relations theorists who question what judges will do with policy discretion in treaty implementation.

Second, this issue also suggests some other judicial interpretative choices. One would be a substantive pro-liberalization policy aimed at reducing barriers to trade, even though the WTO is more of a managed trade organization (several barriers to liberalization are permitted). Another would be a majoritarian approach where an appellate court ruling is driven by what the court perceives to be the preferred policy of a majority of states. This is similar to the argument of some U.S. constitutional scholars, such as Michael Klarman, that the U.S. Supreme Court often decides issues with a majoritarian bent. This is certainly a plausible way (although certainly not the only way) to consider the Appellate Body’s rulings and explains the Appellate Body’s rejection of the United States position in the anti-dumping cases (where the vast majority of states are opposed to the American anti-dumping practices). But this issue raises a host of questions about whether judicial bodies are supposed to be counter-majoritarian to preserve the value of negotiated concessions as well as participatory values.

In short, this is a wide-ranging and innovative Article that sheds new light on a host of important questions in international law.