The WTO 20 Years On: A Reply to the Responses

I am greatly honoured and thankful to the editors of EJIL as well as to the five authors, some of the most eminent scholars in the field, who have chosen to engage with my essay. Their observations speak for themselves and in this brief reply I do not intend to tackle them systematically. That task is for future scholarship. Instead, I wish to take this opportunity simply to correct certain misunderstandings concerning the original essay that might be an obstacle to the open-minded reader assessing the debate that the responses have opened. Perhaps the most serious misunderstanding is suggested by the response of Joost Pauwelyn, who says that my core normative claim is that the Appellate Body has achieved a high level of effectiveness and legitimacy; on the contrary, the central inquiry in my essay concerns the normative logic of the judicial techniques and policies that the Appellate Body may have adopted to create and enhance its legitimacy as a true world trade court. As I state at the outset of my essay, I bracket the deep question of what constitutes legitimacy in international adjudication, and assume a common-sense view, widely held, but surely deserving of more scholarly scrutiny, that the Appellate Body is a highly effective international court, issuing many rulings, and experiencing a high level of acceptance and compliance with those rulings, generally speaking. There may well be more to legitimacy than that, and Pauwelyn takes a different view of compliance – fair enough. My essay does not contain any data on compliance and what Pauwelyn is really challenging is not any of my central claims but my starting assumption. A second misunderstanding in Pauwelyn’s response is that I set out for myself the challenge of a comprehensive treatment of the case law of the Appellate Body; hence he takes me to task for devoting only two pages to the case law on trade remedies. In fact, my enterprise is to identify, in that section of the essay, the key judicial policies or jurisprudential techniques of the Appellate Body, not to survey its rulings across different areas of WTO law. A third misreading of Pauwelyn relates to the temporal dimension of my narrative; in portraying the Appellate Body in its early years as fiercely establishing its independence from the political and diplomatic institution of the WTO, I was not suggesting that it has continued to maintain an agonistic relationship to the political and diplomatic institution. Indeed, the increasing acceptance (overall) of Appellate Body rulings, and the abandonment of any concerted effort by insiders to challenge the legitimacy of the Appellate Body, are a part of my own narrative.