Author: Joel P. Trachtman

VJIL Symposium: Gregory Shaffer and Joel Trachtman Comment on Sungjoon Cho’s “Beyond Rationality”

[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 are grateful to Professor Cho for writing this Article (Beyond Rationality: A Sociological Construction of the World Trade Organization) as a critique of our earlier Article (Interpretation and Institutional Choice at the WTO). Our article examined the choices in WTO interpretation in terms of their institutional implications, which in turn affect social welfare and participation in social decision-making. Cho’s main point is that our approach is “blindsided” by failing to understand WTO rules and interpretations from the standpoint of a discourse-based constructivist or sociological approach. He contends that norms at the WTO arise from discourse, and that actors judge the behavior of others and formulate their own behavior on the basis of these constantly evolving norms. Cho’s article, in our view, does not engage with our central focus — which is to increase understanding of what is at stake in WTO drafting and interpretation in terms of the implications for not only social welfare, but also (and relatedly) for participation in social decision-making processes. We did not aim with this article to take sides in the rationalist-constructivist debate. We rather believe that our framework is open to addressing the role of both ideas and interests, and is by no means “textualist determinist” (p. 325) and “rationally predetermined” as Cho contends (pp. 325, 334, 347, 353). Readers of our article and users of our analytic framework can decide for themselves. To turn to Cho’s sociological approach, it seems to imagine a closed discursive community endogenously or autopoetically generating norms. Our approach highlights instead the exogenous consequences of interpretive choices, however those interpretive choices are informed, including by norms developed interactively, or by interests and perspectives that are not endogeneous to the “WTO community.” We question what it could possibly mean for welfare (however one views it) for the world to be structured as Cho conceives of it, as a place where international organizations such as the WTO have an internal discourse that determines norms which in turn determine behavior. How would these norms be judged? Cho argues for some independent “values”-based metric, but seems to fail to recognize that different individuals have different values, perspectives, and priorities; that different states represent different constituencies; and that what people value and prioritize affects welfare. Our framework, in contrast, makes clear how interpretive choices allocate authority to different institutional decision-making processes, which mediate expressions of diverse values and priorities in different ways (each of them imperfect, but some better than others in different contexts).

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: 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.