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Apparent Dichotomies, Covert Similarities: A Response to Joost Pauwelyn

Part of: Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”

Published online by Cambridge University Press:  20 January 2017

Catherine A. Rogers
Catherine A. Rogers*
Affiliation:
PluriCourts, Center for Excellence, University of Oslo, Penn State Lawand Queen Mary, University of London
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In his thoughtful article, Joost Pauwelyn poses a perplexing question: How can it be that trade and investment are converging in their substantive “legal orders,” but diverging in terms of perceived legitimacy? Investor-State Dispute Settlement (ISDS), he argues, is in a “state of crisis” whereas World Trade Organization (WTO) dispute settlement is generally regarded as “successful.” Pauwelyn’s provocative and counter-intuitive explanation for this paradox focuses on the apparent differences between the pool of decision-makers in each regime: WTO disputes are resolved by nameless, faceless, panel-inexperienced bureaucrats who often lack legal training, whereas “investment arbitrators are typically high-powered, elite jurists” with more expertise and experience than their WTO counterparts.

Type
Symposium on Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 294 - 301
Copyright
Copyright © American Society of International Law 2015

References

1 Pauwelyn, Joost, The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators Are from Mars, Trade Adjudicators from Venus, 109 AJIL 761 (2015)Google Scholar.

2 Id. at 763.

3 Id. at 764.

4 Id. at 777.

5 Puig, Sergio, Social Capital in the Arbitration Market, 25 EUR. J. Int’l L. 387 (2014)Google Scholar.

6 Pauwelyn, supra note 1, at 768-783.

7 Id. at 77.

8 Jara, Alejandro, The Legal Affairs Division at thirty and beyond, in A History of Law and Lawyers in the WTO 604 (Marceau, Gabrielle ed., 2016)Google Scholar.

9 Malacrida, Reto, WTO Panel Composition: Searching Far and Wide for Administrators of World Trade Justice, in A History of Law and Lawyers in the WTO 311, 313 (Marceau, Gabrielle ed., 2016)Google Scholar.

10 See Jara, supra note 8, at 612.

11 Elsig, Manfred & Pollack, Mark A., Agents, Trustees, and International Courts: The Politics of Judicial Appointments at the World Trade Organization, 20 Eur. J. Int’l Rel. 391, 404 (2014)Google Scholar.

12 Id. at 405.

13 Pauwelyn, supra note 1, at 787.

14 Id.

15 Elsig & Pollack, supra note 11, at 407.

16 Id. at 410.

17 Id. at 407.

18 Id.

19 Pauwelyn, supra note 1, at 795.

20 Jarle Trondall Et Al., Unpacking International Organizations: The Dynamics of Compound Bureaucracies 99 (2010).

21 Id. at 97.

22 Pauwelyn, supra note 1, at 796; see also, Mavroidis, Petros C., Arbitrating Trade Disputes: Who’s the Boss?, 23 ARB. Int’l 481 (2012)Google Scholar (In appointing, the Secretariat’s “incentive remains the same: the stronger the Panelists, the weaker the position of the Secretariat throughout the process.”).

23 Pauwelyn, supra note 1, at 796.

24 These statistics are for the entire Secretariat, not only the Legal Affairs and Rules Divisions.

25 Apparently, no separate breakdown of nationalities is available for the Legal Affairs and Rules Divisions.

26 Costa, José Augusto Fontoura, Comparing WTO Panelists and ICSID Arbitrators: The Creation of International Legal Fields, 1() Oñati Socio-Legal Series 23 (2011)Google Scholar.

27 Pauwelyn, supra note 1, at 802.

28 Global Affairs Canada, Agreement Between the Government of Canada and the People’s Republic of China for the Promotion and Reciprocal Protection of Investments, Government of Canada (2014).

29 This analysis was presented by Christopher Thomas in his keynote speech at the 4th Annual Asia Pacific ADR Festival in Seoul, Korea (2015).

30 David Gaukrodger, Joint government interpretation of investment treaties, OECD Insights (Feb. 15, 2016).

31 Pauwelyn, supra note 1, at 803.

32 Id. at 762.

33 Global Exchange, Top Reasons to Oppose the WTO.

34 Peter Constantini, What’s wrong with the WTO? (2001).

35 David C. Korten, WTO Is Anti-Democratic, Anti-People, and Anti-Environment, YES! Magazine, Nov. 30, 1999.

36 Aurelie Walker, The WTO has failed developing nations, Guardian, Nov. 14, 2011.

37 Shefali Sharma, WTO Decision Making: A Broken Process, Institute for Agriculture and Trade Policy WTO Cancun Series Paper No. 4 (2003).

38 Claims based on plain packaging legislation are also pending in other fora, and the legislation is not always faring well—in the United Kingdom, similar legislation was struck down by Lord Hoffman as unlawful and violative of EU law. See Trevor Little, Plain packaging battle escalates as WTO prepares for hearings on challenges to Australian regime, World Trademark Review, May 26, 2015.

39 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union, of the Other Part art. 8.27.

40 Garfield Mahood, Liberals can help stub out smoking epidemic, STAR, Jan. 18, 2016.

41 Dillard, Hardy, A Tribute to Phillip C. Jessup and Some Comments on International Adjudication, 62 Colum. L. Rev. 1138 (1962)Google Scholar (this citation and related observations are borrowed from the insightful work, Crook, John R., Fact-finding in the Fog: Determining the Facts of Upheavals and Wars in Inter-State Disputes, in The Future of Investment Arbitration (Rogers, Catherine A. & Alford, Roger P., eds. 2009)Google Scholar).

42 See Pulp Mills on the River Uruguay (Arg. v. Uru.), Dissenting Opinion of Judge ad hoc Vinuesa, 2010 ICJ Rep. 147 (Apr. 20).

43 Collins, David, Institutionalized Fact-Finding at the WTO, 27 J. Int’l L. 367, 370 (2006)Google Scholar (noting a “tendency for governments to ignore panel requests for facts.”).

44 See id.

45 Pauwelyn, supra note 1, at 802.