Most Favoured Nation: Who Really Writes This Newsletter?

Text analysis will confirm it is me

Welcome to the 63rd edition of Most Favoured Nation. The full post is for paid subscribers only, but you can sign up for a free trial below.

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I should start this week’s newsletter by acknowledging I am currently on holiday, looking out over the Cornish coast. As such, MFN may be shorter than usual … for which I hope you will forgive me.

Anyhow, with thanks to Simon Lester and his International Economic Law and Policy Blog for flagging, Joost Pauwelyn and Krzysztof Pelc have published a new paper in which they use “text analysis” to work out who actually authors WTO dispute rulings.

I know what you’re thinking: “God, this really is a slow news week.” But bear with me, it’s kinda interesting.

When a member brings a WTO dispute, the second phase of a dispute settlement process (following presumably failed consultations) is the formation of a panel to review the dispute. The panel usually consist of three or five independent experts, agreed to by the warring parties.

The panelists then review the evidence and write a report and … WAIT NO.

Contrary to what you may assume, according to Joost and Krzysztof the panel reports usually actually end up being written by the WTO Secretariat [emphasis mine]:

The first setting we examine concerns WTO panel rulings. While it would be reasonable to assume that WTO panelists are the ones writing panel reports, here we provide the first hard evidence suggesting that the institution’s bureaucrats, rather than its adjudicators, exert the greater influence by far over the actual drafting of the final rulings. As we demonstrate using two distinct text analysis approaches, the permanent staff of the WTO’s Legal Affairs Division and Rules Division play an under-appreciated role in drafting panel rulings. Although adjudicators may guide and control final outcomes, it is the staff who “hold the pen”: that is, they are the ones who actually sit down and write most of the text of panel reports. This role is not publicized by the institution, but it is tacitly acknowledged by WTO insiders, amounting to what Soave (2019) calls an instance of “collective denial.” In fact, this is one of the few instances in international tribunals where opacity has increased over time: the WTO is now less open about the role of Secretariat staff in panel rulings than it was during its first decade. It no longer publishes the names of staff serving on each case as it once did. We argue that such opacity exists by design. Looking back over the founding history of the Secretariat, we show how Member-states depend on the institution’s permanent staff to strike a balance between a semblance of judicial autonomy and the ability to oversee the work of adjudicators. An equilibrium has been achieved by relying on a body of ad hoc, non-professional adjudicators who are made dependent on permanent, expert staff. The result, we argue, has empowered a rapidly growing bureaucracy beyond what the Member-states originally anticipated. We also show that it is the most complex disputes, with membership-wide implications, that invite most control by the Secretariat staff, and least input from panelists themselves. Accordingly, we also demonstrate that those disputes where the Secretariat has more input go on to shape WTO jurisprudence to the greatest degree.