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Judging from Venus: 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

Gabrielle Marceau ,
Catherine Quinn  and
Juan Pablo Moya Hoyos
Gabrielle Marceau
Affiliation:
Legal Affairs Division of the WTO
Catherine Quinn
Affiliation:
UNIGE
Juan Pablo Moya Hoyos
Affiliation:
Legal Affairs Division of the WTO
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In this short response, we offer some additional context to the appointment of government officials as World Trade Organization (WTO) panelists, some information on the role of the Secretariat and areas of cross-fertilization.

The Involvement of Panel Members Working for Government

Pauwelyn emphasizes that a significant proportion of WTO panel members have a substantial government background. His numbers indicate that for the period 1995-2014, 88 percent of WTO panelists had worked a minimum of “three years in government as diplomats, negotiators, bureaucrats, ministers and so on.” However, if we look at whether the panelists are employed by governments, either as diplomats or trade specialists, at the time of their appointment as WTO panelists, the figure changes dramatically: only about 50 percent of WTO panelists are employed in government at the time of their nomination. In accordance with Article 8.9 of the Dispute Settlement Understanding (DSU), the procedural rules applicable to WTO dispute settlement proceedings, panelists serve in their individual capacities and not as government representatives.

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. 288 - 293
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, 772 n. 73 (2015)Google Scholar. He also notes that 72% of Appellate Body Members appointed to date were also members of the public service.

2 On average, over the last ten years.

3 For more information, see generally Historic development of the WTO dispute settlement system, World Trade Organization.

4 GATT Understanding regarding Notification, Consultation, Dispute Settlement and Surveillance, Annex, para. 6 (iii), GATT Doc. L/4907 (Nov. 28, 1979).

5 Id. at para. 13.

6 GATT Council of Representatives, Report on Work since the 37th Session, 7, GATT Doc. L/5414 (Nov. 12, 1982).

7 On the reasons for the common use of current or former governmental individuals as WTO panelists, see also Malacrida, Reto, WTO Panel Composition: Searching Far and Wide for Administrators of World Trade Justice, in A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System 311, 324, 330-331 (Marceau, Gabrielle ed., 2015)CrossRefGoogle Scholar.

8 Pauwelyn, supra note 1, at 773.

9 Id. at 772-773.

10 Id. at 791.

11 GATT Contracting Parties, 38th Session, Ministerial Declaration, GATT Doc. L/5424 adopted on (Nov. 29, 1982).

12 Id. at 7.

13 Nongovernmental and governmental panelists both receive a per diem in accordance with United Nations standard rates.

14 Pauwelyn, supra note 1, at 771.

15 Id. at 770.

16 Panel Report, United States—Continued Suspension of Obligations in the EC—Hormones Dispute, WT/DS320/R (Adopted Nov. 14, 2008); Panel Report, Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, WT/DS321/R (Adopted Nov. 14, 2008).

17 Pauwelyn, supra note 1, at 771 n. 63.

18 The Chairman of the ICSID Administrative Council (the President of the World Bank) under Article 38 of the ICSID Convention or the individual agreed to by the disputing parties or designated by the Secretary-General of the Permanent Court of Arbitration under Article 6 of the 2010 UNCITRAL Arbitration Rules.

19 Pauwelyn, supra note 1, at 795-796.

20 The text proposed by the European Union dated 12 November 2015 is available at Trade, European Commission.

22 Article 8.27–8.28

23 Pauwelyn, supra note 1, at 761-762. See also, Stephan W. Schill, US versus EU Leadership in Global Investment Governance, J. World Inv. & Trade (2016).

24 Panel Report, China—Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum, para. 7.319, WT/DS431/R, WT/DS432/R, WT/DS433/R (Adopted Aug. 29, 2014).

25 Id. at para. 7.322.

26 Appellate Body Report, United States—Final Anti-Dumping Measures on Stainless Steel from Mexico, para. 160, n. 313, WT/DS344/AB/R (Adopted May 20, 2008).

27 In United States—1916 (Act) (EC), the Appellate Body referred to ICISD Arbitration Rule 41(2) in support of its statement that certain questions of jurisdictions can be raised at any time during the proceedings (Appellate Body Report, United States—Anti-Dumping Act of 1916, para. 54, n. 30, WT/DS136/AB/R (Adopted Sep. 26, 2000). Investment arbitration awards have been cited by disputing parties and third parties in support of their argument: see Panel Report, Colombia—Measures Relating to the Importation of Textiles, Apparel and Footwear, para. 7.64, n. 155, WT/DS461/R (Circulated Nov. 27, 2015); Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Annex C, C-9, n. 151, WT/DS285/R (Adopted Apr. 20, 2005). In some cases, disputing parties have referred to general practice at ICSID: see Panel Report, United States—Anti-Dumping Measures on Shrimp from Ecuador, Annex C-15, C-25, n. 1, WT/DS335/R (Adopted Feb. 20, 2007); First Written Submission of the European Union in Panel Report, United States—Continued Existence and Application of Zeroing Methodology, Annex A, A-23, para. 82, n. 79, WT/DS350/R (Adopted Feb. 19, 2009).

28 See Draft Article X.02 (General Exceptions) of Comprehensive and Economic Trade Agreement between the European Union and Canada available at Global Affairs Canada, Consolidated CETA Text, Government of Canada (2014).

29 In accordance with Article 13 of the DSU.