Pauwelyn & Pelc: Who Writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement
The figure of the judge or adjudicator in international tribunals has been garnering growing attention. Yet we know relatively little about how adjudicators actually produce their rulings. Anecdotal evidence suggests that for all the attention panelists and Appellate Body (AB) members at the World Trade Organization (WTO) receive, the Secretariat plays an overlooked and increasingly important role, from selecting panelists and writing an initial “issues paper” for the adjudicators, to participating in internal deliberations and assisting in the drafting of the actual ruling.
We examine this role in greater detail, and ask who, of the Secretariat vs. adjudicators, exerts more influence over the drafting of WTO panel reports? We rely on two different text analysis approaches to attribute authorship. In both cases, the findings are unambiguous: the WTO Secretariat exerts significantly more influence over the writing of WTO panel reports than panelists themselves. We then examine what factors have led to the Secretariat’s rise to prominence. Originally a response to “rogue” GATT panels in the 1980s, its functions grew over time as a result of the greater experience and expertise of its (permanent) staff, compared with (part-time) adjudicators, and its limited accountability. We also elaborate on how the Secretariat’s role matters, affecting the role of precedent, the low number of dissents, and the increasing length of proceedings and scope of rulings.
Designed to keep “rogue” panels in check, the Secretariat may thus have contributed to the very “overreach” that members like the US are lashing out against. Correcting this “overreach” and resolving the current crisis at the WTO may then, paradoxically, require a greater voice for adjudicators, and a reduced role for the Secretariat.
