Unmasking the Phantom of the Opera: Is there a Hidden Secretariat in the WTO Dispute Settlement System?

In their article “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc recharacterize the World Trade Organization's Dispute Settlement System (DSS) as a sui generis administrative review system wherein the “Guardians of the System,” i.e., the Secretariat, no longer merely “assists” panels and the Appellate Body (AB) in their reports, but also exerts influence and control over adjudicators. For them “‘the guardians of the system’ may have contributed to the system's demise by the expansion of their influence.” This Essay attempts to illustrate that Pauwelyn and Pelc's fatalistic view of the DSS is overstated, by providing some comments into the practical functioning of the DSS. We argue that, first, the “guardians of the system” are also restrained by suitable accountability mechanisms in their functions relating to appointment and financial “oversight” of adjudicators. Second, while acknowledging that the Secretariat retains a much stronger institutional memory than adjudicators, we suggest that this asymmetry between the staff and adjudicators’ familiarity with World Trade Organization (WTO) law and policy is not as stark and irredeemable as painted by the authors. Rather, the Secretariat's contribution to consistency and predictability in institutional decisions is ultimately desirable. For governments who established and make use of the WTO dispute system, the balance between ensuring legal coherence and preventing over-judicialization is at the core of the DSS. The participation of diplomats as panelists and the simultaneous creation of an office of Legal Affairs within the Secretariat was intended to ensure consistency in resolution of the members’ disputes to preserve a rules-based system. Finally, we contend that there is a strong internal legitimacy to Secretariat roles.