Introduction to the Symposium on Joost Pauwelyn and Krzysztof Pelc, “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement”

Abstract

Into the midst of the widely acknowledged crisis of international trade and multilateralism, represented sharply by the breakdown of the World Trade Organization (WTO) Appellate Body, comes a provocative perspective by Joost Pauwelyn and Krzysztof Pelc, in “WhoGuards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” published in the American Journal of International Law.1 Pauwelyn and Pelc suggest that the crisis of the WTO dispute settlement system (DSS) stems not only from external shocks, but also from cracks in its foundation. They argue that the WTO Secretariat operates in a way that has expanded far beyond providing research and logistical support toWTO panelists and Appellate Body judges as they resolve disputes amongWTO states parties. Rather, the Secretariat has amassed a great deal of influence over the substantive analyses that WTO panels and the Appellate Body produce. Some of this influence has arisen as an unanticipated outcome of institutional features that were themselves intentionally put into place, such as the contrast between the full-time and ongoing presence of Secretariat officials, and the time-bound, and therefore less stable, participation of individual WTO adjudicators. Other forms of influence have arisen from developments whose explicit institutional mandate is less clear, such as the emergence of precedent, which the Secretariat is better placed to manage due to its longterm institutional memory than are WTO adjudicators. Pauwelyn and Pelc describe eight distinct administrative functions that the Secretariat performs that contribute to its outsized influence in WTO dispute settlement proceedings.2 These functions combine with asymmetries they identify in training and expertise, as well as with various forms of institutional controls exerted by the Secretariat over adjudicators.3 When taken together, Pauwelyn and Pelc assert, the influence of the Secretariat renders the WTO dispute settlement system less a judicial forum than a “sui generis process of international administrative review.”4 With bracing clarity through this analysis, Pauwelyn and Pelc show that the “judicialization” of the dispute settlement system that had been so celebrated in many ways never existed in its perceived form. Rather,