The role of lawyers in the World Trade Organization.

• Author: Ehrenhaft, Peter D.

The World Trade Organization is a marvelously ambitious effort of now 140 countries to bring the rule of law to international trade. The WTO is a logical extension of the inspired ideas of the draftsmen of the General Agreement on Tariffs and Trade (GATT), who recognized at the end of World War II that the seeds of that conflagration were sown, in part, by the chaotic condition of international trade following World War I.

During that inter-war period, the United States adopted its Antidumping Act of 1921 and its Smoot-Hawley Tariff Act of 1930. Both survive to this day. By 1934, however, the Roosevelt Administration proposed reciprocal trade agreements intended to soften the impact of the barriers to our markets those laws created. The GATT was a logical extension of that concept, essentially enshrining as the two keystones of freer trade "national treatment" and "most-favored nation" commitments. Indeed, the GATT is sometimes characterized as two paragraphs--with two thousand pages of exceptions. The WTO Agreements now cover twenty-seven thousand pages.

From the beginning, the GATT addressed the settlement of disputes between trading nations. Disputes were recognized as inevitable. The GATT dispute resolution procedure was part mediation and part arbitration. It depended on the good offices of experienced representatives of unaffected members to help the disputing parties find common ground to settle their differences. Increasingly, however, particularly representatives of the United States sought a more rigorous procedure leading to a judgment that one party was right and the other one was wrong--and the latter had either to correct its ways or provide compensation to the aggrieved complainant.

Increased American attachment to this rule of law model through the 1980s prompted U.S. negotiators of the WTO agreements to seek a greatly strengthened Dispute Settlement Body (DSB). This Body maintained the previous system of panels to hear--and settle--trade disputes. In addition, an Appellate Body was to be created with semi-permanent judges to review the legal issues raised in panel reports. Moreover, and critically, the judgment of a panel was to be implemented by the affected parties unless a consensus of all the WTO's members decided it need not be adopted.

Paradoxically, although these results of the WTO negotiations appeared to be a triumph of the rule of law, the United States, in particular, was quite diffident about the notion that private lawyers should have a role in the system. The concern of the United States about including private lawyers as participants in the dispute resolution procedures of the WTO sprang from a number of factors. They included, first, a fear that such lawyers might be excessively aggressive and unable or unwilling to recognize the possible advantages of compromise and only partial victory. Concern was also expressed about such lawyers' possible conflicts of interest and their inability to keep confidential the information to which they might be given access in the course of such proceedings. In negotiating the NAFTA before the conclusion of the Uruguay Round creating the WTO, both Canadian and U.S. negotiators were reluctant to give private counsel the right to appear on behalf of specific industries or economic interests in their countries before NAFTA dispute settlement bodies--other than under Chapter 19 that created special panels in lieu of court review of antidumping and countervailing duty orders. Neither government wanted the lawyers for U.S. Steel to argue independently for their client's views in other NAFTA--or, later, WTO--fora, lest it lessen the governments' ultimate control of their trade policy.

This perspective, arguably proper in the NAFTA context, lacked an appreciation of the problem of many members of the WTO. Small and often new states in the organization rarely employ experienced WTO specialists in their governments. They often lack any lawyers versed in WTO procedures, able to represent their positions in WTO dispute settlement proceedings. If their rights are to be protected or vindicated, they need access to advocates, likely to come from the private bars of the U.S. or U.K. Eventually, the Appellate Body agreed and the practice appears to have evolved to the point that private counsel employed by a government participant can now appear in both appellate and panel proceedings on behalf of a government. From that narrow prospective, the private bar has won its battle for access.

Attached as Appendix A is a document from the American Bar Association. It includes the recommendation of its Section of International Law and Practice, adopted by the Association's House of Delegates in 1998, urging the WTO to take formal action to permit private counsel to appear in dispute settlement procedures. The recommendation was accompanied by a report that provides a historical perspective of the issue and attaches a proposed "Code of Conduct" that the Committee preparing the report thought would be useful to address some of the concerns of the U.S. government with regard to this development. The Author chaired the Committee that prepared this report.

Private counsel do now appear in WTO dispute settlement proceedings, but no "Code of Conduct" has been adopted. Perhaps it is unnecessary. Nevertheless, it provides an interesting focus for further discussion.

Quite apart from the narrow question of counsel in dispute settlement proceedings is the far larger question of the role of lawyers and "hard law" in a body such as the World Trade Organization. Is the WTO the type of organization that can and should be viewed as bound by the law existing at its creation, as expressed in the agreement signed at the time and then ratified by the members? Or is it capable of making new laws that are not subject to unanimous consent or ratification? If it has a rule making function, is it accountable to its members in terms of such values as democracy and transparency?

These are the much more interesting and pervasive problems than the simple issue of private lawyer participation in WTO dispute resolution proceedings. They impact our vision of the proper role of the WTO in a fast-changing world of diverse states that are at different stages of development and with often competing values.

Lawyers, particularly those trained in the United States, are concerned about accountability and transparency in the law. The citizens of other countries may mock the extent to which U.S. lawyers take to court issues that they would never present for adjudication. They decry the volume of our litigation. At the same time, few, if any, other countries have developed our keen appreciation for the need for imposing accountability by all who can exercise control over others. Be they presidents or teachers, CEOs or shop stewards, or even parents and social workers, everyone must be ready to explain their behavior to a judge and abide by core principles in exercising their authority. Some of our ideas, such as class actions, punitive damages, and freedom of information, to cite but three relatively unique elements of the U.S. legal system, are instrumental in achieving that accountability. It is a necessary part of our concept of legitimate government.

Can we fit the WTO into that model? Its members designate representatives pursuant to their constitutional government organization. But they may also delegate to the WTO decision-making and law-creating rights and obligations that are beyond practical accountability. Is the United States prepared to cede some elements of its sovereignty to such an organization? If so, must it assure access to the organization's decision-making bodies by ordinary citizens and non-governmental organizations? The civil society representatives claim that their access is necessary to render the Organization's decisions legitimate. But most NGOs are self-selected, self-funded and often no more representative of democratic values than any industry, company, labor union, or other interest group. Moreover, the unequal funding of NGOs and their concentration in but a few countries provides an added base for questioning their claims that their participation is indispensable to legitimate rule making.

It is in this area of legitimization of the WTO in which our concerns about the rule of law should be most pointed. Hopefully the commentaries and presentations at this symposium will help us to focus on these transcendent issues.

Obviously this issue is much larger and deserving of much more time than my brief comments permit. But I will venture a few points.

First, lawyers could be welcomed at all levels of the DSB. As this has been achieved, there is not much more that need be said other than that a Code of Conduct may be a useful adjunct to this practice.

Second, it is not the proper role of the Secretariat to provide counsel to members involved in dispute settlement procedures. As a way to obtain advice "on the cheap," some of the less developed countries have relied on advice given by current or former GATT officials or lawyers who are also paid by the organization. This type of legal aid to governments by the body that is deciding cases is inappropriate and inadequate. A separate body--external to the WTO and funded outside the WTO budget--could usefully provide expert legal services to countries lacking human and monetary resources independently to pursue their rights and obligations. Moreover, I do not doubt that highly expert lawyers in a number of countries--including the United States--would be willing to appear on a pro bono or reduced fee basis in the WTO for states that cannot afford U.S. billing rates. But observing the entertainment budgets of many missions to Geneva also makes me skeptical of the claims that funds are lacking to retain counsel for disputes important enough to pursue.

Third, U.S. requests for transparency in dispute settlement procedures, no...