2012 Articles

Arbitrating Trade Disputes (Who's the Boss)

Mavroidis, Petros C.

World Trade Organization (“WTO”) dispute settlement has attracted a lot of
interest over the years and there is a plethora of academic papers focusing on
various aspects of this system. Paradoxically, there is little known about the
identity of the WTO judges: since, at the end of the day, the WTO has evolved
into the busiest forum litigating state-to-state disputes. There are many writings
regarding the appointment process in other international tribunals. At the risk of
doing injustice to many papers on this issue, we should mention the following
works: Terris et al. look at various courts and especially those with opaque
procedures regarding the appointment of international judges; Posner and Yoo on
the one hand, and Helfer and Slaughter on the other, reach opposite conclusions regarding the “independence” of courts the composition which does or does not depend on the will of the parties to litigation; Alter examines various fora and concludes that, contrary to domestic process where political branches dominate the process, international judges are less subject to appointment politics or so it seemed. And there is so much more. But there is almost nothing regarding
appointments of WTO judges: Elsig and Pollack and Steinberg are, to my knowledge, the only notable exceptions to this effect; the former concentrate on
the appointment of the Appellate Body (“AB”) members, while the latter’s focus
is on theoretical inquiries regarding, inter alia, the appointment process.