International trade law and policy is a complicated amalgam of law and economics. The two disciplines coalesce as well as intertwine in a complex fashion to churn out a quagmire of law and policy. A question that often dominates my mind is the dominance of "economists" or "trade specialists" in the discourse as against international trade law experts. Ofcourse, a lot is about international trade theory, principles of comparative advantage, international economics and trade related principles. Legalese is left to the dispute settlement mechanism. The extensive use of economic principles, theories and understanding dominates many panel and Appellate Body Reports of the WTO. Is the multilateral trading system dominated by economists rather than trade law specialists? Is there an underlying friction between the two streams? I have blogged about the use of economic principles and the danger of its unguided use, as reflected by Gregory Shaffer and Joel Trachtman's work, here.
The evident and obvious friction between trade policy diplomats and lawyers is reflected in Pascal Lamy's, Director General of the WTO, remarks at the celebration to mark 30 years of the Legal Affairs Division of the WTO said:
"Mr Dunkel’s decision to create a legal office in the GATT Secretariat would not have been taken lightly, as the GATT community generally was resistant to introducing all forms of legalism. Fortunately, none followed the advice of Dick the Butcher in Shakespeare’s Henry the Sixth to ‘kill all the lawyers’. But it must be said that old-school trade diplomats were quite sceptical about having lawyers meddle in the interpretation of rules that had been so carefully negotiated. So Mr Dunkel was a brave man.
In a house no stranger to irony, the office of legal affairs was created on the condition that the head of the office not be a lawyer."
The dichotomy also reflects the divergent underpinnings of trade negotiations as against dispute settlement. While the latter is premised on trading power and political economy of trading realities, the latter is rule based and predictable.The dispute settlement mechanism of the WTO is often referred to as the crown jewel of the WTO reflecting the efficiency, fairness, transparent and predictable mature of rules. It reflects the dominance of a rule based system over a "power" based system. It reflects the equity in a system where a weak trading power can take on even the most powerful trading power on an issue that it views as violative of WTO obligations. The possibility of ensuring compliance in these cases reflects the power of the law to provide justice and protect rights. Trade relations as well as the history of international trade rules has always been seen in the context of negotiations that have involved compromises and have reflected unequal power structures. the dispute settlement mechanism is a challenge to this reality.
The Dispute Settlement mechanism has many successes to its credit including the scope of its coverage, time taken as well as compliance. It would be interesting to see how the failure of political negotiations is reflected in functioning of the judicial wing of the WTO? Will it take over some of the functions of rule making by being "activist"? We have seen national judicial systems perform this rule when the "executive" branch fails to deliver. Will we see a similar current here? What impact would that have on the effectiveness of the dispute settlement mechanism? How far can it be stretched?