Recent Posts

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.

VJIL Symposium: Joost Pauwelyn Comments on “Interpretation and Institutional Choice at the WTO”

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.] 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. Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate. This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114). I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig). Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.

VJIL Symposium: Robert Howse Comments on “Interpretation and Institutional Choice at the WTO”

[Robert Howse is the Lloyd C. Nelson Professor of International Law at the New York University School of Law.] 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. The Article by Shaffer and Trachtman is a tour de force: it identifies and explains many of the most important interpretative choices that panels and the Appellate Body have made in adjudicating disputes under WTO law, and speculates on the implications for the WTO as an institution, its economic and political economy functions, and for the relation between international law and politics, both domestic and transnational. I assigned this article in one of the introductory classes for my advanced course in WTO law at NYU, because it canvassed so many of the issues that students need to think about when they are consider the WTO case law as a jurisprudence. One of the issues that the authors discuss, which intersects with my own scholarship about the WTO and about fragmentation in international law more generally, is the role of non-WTO international law in WTO dispute settlement. Here the authors place considerable emphasis on the EC-Biotech case, where the panel made a highly dubious interpretative choice to exclude non-WTO international law relevant to to the regulation of GMOs from its consideration of the meaning of the WTO norms at issue. The authors thus tend to the conclusion that non-WTO has been marginalized in WTO dispute settlement, with possibly serious consequences for the legitimacy of the system; as they note, on such a scenario, there is an effective assertion of the supremacy of WTO rules or other international law norms that may be applicable to the matter at hand. Can such a supremacy be sustained legitimately from the perspective of the international legal system as a whole? My sense is that the Appellate Body is cautiously distancing itself from the narrow approach in EC-Biotech. In EC-Aircraft, the Appellate Body, seemingly influenced by the ILC Working Group on Fragmentation Report, suggested that considerations of systemic integration in international law might suggest a fuller embrace of non-WTO international law in appropriate cases, even where not all WTO Members are parties to the non-WTO international agreement. In the China-AD/CVD case, the AB based its interpretation of an important concept in the WTO Subsides and Countervailing Measures Agreement (that of a "public body") almost entirely upon the ILC Articles on State Responsibility. I sense that the AB has returned the orientation of the jurisprudence to the greater openness to non-WTO international law that had been displayed much earlier in the case of Shrimp/Turtle, where the AB brought a number of non-WTO international legal instruments into its adjudication of that dispute, particular those concerned with biodiversity. A very shrewd observation of the authors is that, in a number of doctrinal areas, the AB has chosen approaches that entail judicial balancing, or case-by-case weighing of multiple factors or considerations, to "bright lines." They are right that such an interpretative choice tends to be very (self-) empowering of the judicial branch. It is also a way of managing political conflict or disagreement in a fashion that may help preserve the legitimacy of the judiciary, since "bright lines" can often appear to favor systematically one value or one constituency over another in an area of normative contestation (the authors discuss the now clearly rejected (Shrimp/Turtle) "bright line" that the unadopted Tuna/Dolphin panels invented on PPMs, which systematically excluded a whole range of activist environmental strategies from consistency with WTO law): here we should consider Cass Sunstein's thinking about "one case at a time."

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.

VJIL Symposium: Introducing “Interpretation and Institutional Choice at the WTO”

[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. First, we would like to thank the Virginia Journal of International Law for inviting us to participate in this online discussion and Opinio Juris for hosting this discussion on our recent Article, "Interpretation and Institutional Choice at the WTO." Our article develops a new framework for understanding the drafting and interpretation of the agreements of the WTO, based on comparative institutional analysis. Our aim is to provide a better means for describing and assessing the consequences of choices in treaty drafting and interpretation. Both treaty drafting and judicial interpretation implicate a range of interacting social decision-making processes, including domestic, regional, and international political, administrative, judicial, and market processes — which we collectively refer to as institutions. Our framework focuses attention on the way that choices among alternative institutions implicate different social decision-making processes, thereby affecting participation and welfare. We draw on specific examples from WTO case law to illustrate our framework. While our article focuses on the WTO, the framework that we develop has general relevance for understanding the interpretation of international and domestic legal texts from “law and economics” and “law and society” perspectives. It builds on work by Grief, Komesar, North and Williamson. We develop further the comparative institutional analysis suggested by these and other authors. Like any dispute settlement body confronting a legal text, WTO panels and the Appellate Body have choices in applying the text to particular factual scenarios that are not specifically addressed by the text. More than one WTO provision or WTO agreement may apply to the factual situation, whether the provisions are drafted as fairly precise rules, more open-ended standards, or exceptions. The resolution of these interpretive arguments has important consequences, not only regarding who wins or loses a particular case, but also regarding broader systemic issues of domestic and international policy.