Non-legal Adjudicators and the WTO Institutional System

Abstract

The WTO Dispute Settlement System (DSS) is featured by, among other things, high level of participation by trade experts with no formal legal training. This article explores three aspects that the author considers considered essential in understanding why there is such high participation of non-legal actors in the DSS. First, this article reviews the historical evolution of the panel proceedings in the multilateral trading system. It is observed that with the transition from the GATT system established in 1947, to the WTO in 1995, the DSS has become increasingly rule-oriented, giving more weight to the underlying legal texts. However, due to the institutional feature of the WTO system itself (a member-driven organization), non-legal trade experts remain heavily engaged in the DSS. The involvement of non-legal trade experts can be explained by the political or diplomatic nature of the DSS, the fact finding function of the panel, and the type of disputes that are addressed in the WTO Agreements (i.e. Sanitary and Phytosanitary measures, Technical Barriers to Trade, Financial Services, etc.). Second, this article reviews the role of the WTO Secretariat, focusing on the support that it provides to the panels. The Secretariat provides sufficient legal support to compensate for any lack of legal experience of the trading experts involved in the panel. Third, this article analyses how the Appellate Body (AB) exerts its influence on the panels’ work. The AB engages more experts with legal training because its purpose is to review the proper application of the norms without getting involved in the fact finding work associated to the issues being disputed. After reviewing these elements, the article concludes that the participation of the non-legal trade experts as panelists is one of the checks and balances that allows equilibrium to be maintained in the WTO institutional system. That is why, despite the fact that the WTO DSS is more rule-oriented system, compared with its predecessor - the GATT- , there are still a large number of panelists who lack legal training.