Table talk: around the table of the appellate body of the World Trade Organization.

• Author: Bacchus, James
• Position: WTO Appellate Body

In this Article, James Bacchus describes his experiences as a "faceless foreign judge" of the World Trade Organization. In this capacity, Bacchus and his six colleagues on the WTO Appellate Body hear appeals in international trade disputes among the 144 member countries and other customs territories that are Members of the WTO. Bound by the WTO Rules of Conduct, he cannot comment on cases or the specific deliberation process, but rather comments on the processes and role of the Appellate Body relative to the WTO.

**********

I am often asked, What is it like to be one of the "faceless foreign judges" of the World Trade Organization--the WTO--in Geneva, Switzerland?

I will try to answer that question, or at least part of it. I must begin, however, by offering an apology to those who may be hoping for exhaustive and revealing detail. I am bound by the constraints I have accepted in the WTO Rules of Conduct. I cannot elaborate on past decisions by the WTO. I cannot comment on pending cases in the WTO. I cannot offer my views on how WTO rules might be improved--if at all--by being changed. If I did, anything I said could rightly be used against me in a "court" of law--namely, the WTO dispute settlement system. So I will say less, and in less detail, than I might prefer ideally to say if I were free to do so.

All this said, what, then, is it like to be one of the "faceless foreign judges" of the WTO?

We meet at ten every morning around a round table in a corner room of a quiet wing of the Italianate Villa that serves as the global headquarters of the WTO in Geneva, Switzerland. The windows of our chambers look out on a broad green lawn that slopes down to the shore of the lake of Geneva, Lac Leman. Across the lake are the medieval heights of the old town. Beyond are the snowy peaks of the Alps. We work in a picture postcard.

We see the sun stream through the windows of our chambers in the morning. We see it make its way slowly across the southern sky throughout the day. We see it sink slowly into the darkness of the evening. Watched by the sun, we sip endless cups of a French coffee-and-milk concoction called renverse while we pursue the work we share.

We have met around this table, morning after morning, for nearly seven years. We began doing so in 1995 after more than one hundred countries agreed on the treaty that transformed the General Agreement on Tariffs and Trade (GATT) into the newly created WTO. (1) We were appointed then by the Members of the new WTO to a supposedly "part-time" job that most of us do, in reality, full-time.

Since then, the faces around the table have changed. The table has not. The same wooden table in Geneva, with its smoothly polished surface, and with a few scratches here and there, has seen both faces and cases come and go.

We are seven around the table. We are from seven different countries. We are from seven different regions of the world. We are from seven different legal traditions. We are, in the words of the WTO treaty, "broadly representative of membership in the WTO." (2) I am the only American, and also the only North American, among the seven. I am also the only one remaining of the original seven who were first appointed by the Members of the WTO in 1995, and who first sat together around our table in Geneva and sipped renverse.

Then I was the youngest, by fourteen years, of the original seven. Today, I remain the youngest of the current seven. I confess that, at 53, I find it increasingly difficult to find pursuits in which I am "the youngest." Having been asked by my six colleagues to do so, I now serve as Chairman of the Appellate Body and, thus, chair our meetings.

The seven original and founding Members of the Appellate Body who first worked together around our table were: Julio Lacarte-Muro of Uruguay, Claus-Dieter Ehlermann of Germany, Florentino Feliciano of the Philippines, Said El-Naggar of Egypt, Mitsuo Matsushita of Japan, Christopher Beeby of New Zealand, and yours truly of the United States of America. My colleagues Lacarte-Muro, Ehlermann, and Feliciano all served six years, and retired at the end of 2001. My colleagues El-Naggar and Matsushita both retired after four years, in 1999. My dear. friend Chris Beeby died in Geneva in 2000 while working at the WTO.

The seven who work together around our table today are: Georges Abi-Saab of Egypt, A.V. Ganesan of India, Yasuhei Taniguchi of Japan, Luiz Olavo Baptista of Brazil, John Lockhart of Australia, Giorgio Sacerdoti of Italy, and, still, yours truly. We are aided in our work by the Appellate Body "Secretariat," which is a fancy way of describing our very fine staff. For more than five years, the director of our Secretariat was a superb international lawyer and former trade negotiator from Canada named Debra Steger. She has been succeeded by another gifted Canadian lawyer named Valerie Hughes. Through the years, numerous bright young lawyers on our Secretariat have worked with us and joined with us from time to time in the discussions around our table.

The subject of these discussions is what we call the "covered agreements." The "covered agreements" are the GATT and the numerous other international trade agreements that comprise the WTO treaty and that bind all WTO Members. (3) We seven are, according to the WTO treaty, "persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally." (4) As such, our job is to help the Members of the WTO fulfill the terms of the "covered agreements." Our job is "to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law" as a final forum of appeal in WTO dispute settlement. (5)

We do not wear robes. We do not wear wigs. We do not wear the white bibs that are often worn by jurists on other international tribunals. We do not have all the institutional trappings that have accrued to other tribunals with the passage of time and the accretion of tradition. We do not even have titles. The WTO treaty speaks only of a "standing Appellate Body." (6) The treaty does not say what the seven "persons" who are members of the Appellate Body should be called. So we call ourselves simply "Members of the Appellate Body."

Others do not seem to know what to call us. Some observers of the WTO describe us as "trade experts." Some trade experts describe us as "generalists." Journalists, in reporting our rulings, often describe us generically and anonymously as simply "the WTO." And, yes, some, sometimes, call us "faceless foreign judges."

We are called "faceless" perhaps because few in the world seem to know who we are. Few in the world who write about the WTO, few who criticize the WTO, and few even who defend the WTO, know who we are. We always sign our opinions, but, for whatever reason, few ever mention our names. We may be called "faceless" as well because the WTO Members have mandated in the WTO treaty that all our proceedings must be "confidential." (7) So we meet behind closed doors. No one who has not participated in one of our appeals has ever seen us work.

We are called "foreign" perhaps because we are, by treaty, "unaffiliated with any government." (8) We do not represent our own countries in our work in Geneva. Instead, each of us and all of us have been appointed by all the Members of the WTO to speak for all the Members of the WTO by speaking solely for the WTO trading system as a whole. We are independent.

And we may be called "judges" because, whatever we may call ourselves, that word may best describe what we do. For our job is to "judge" appeals in international trade disputes affecting the lives of 5 billion people in the 95% of all world commerce conducted by the 144 countries and other customs territories that are--currently--Members of the WTO. Moreover, the scope of our jurisdiction seems to grow daily. At this point, every country in the world is either a Member of the WTO or seems to want to be. At last glance, more than two dozen additional countries had applied for admission in a process we call "accession." China and Taiwan are the newest Members. Russia, Saudi Arabia, Vietnam, and Ukraine are among those waiting to become Members. Among the others awaiting membership are about half the Arab states and a handful of former Soviet republics.

Technically, the Appellate Body is rightly described as "quasi-judicial." (9) To have legal effect, our rulings must be adopted by the Members of the WTO. But a ruling by the Appellate Body in an international trade dispute will not be adopted only if all the Members of the WTO decide " by consensus" that it should not be--including the Member or Members in whose favor we may have ruled. (10) Thus far, this has never happened.

But whether our work is described as "judicial" or "quasi-judicial," and whatever we may be called, we have much to do around our table in Geneva. We have much to do because, among all the international tribunals in the world, and, indeed, among all the international tribunals in the history of the world, the Appellate Body of the WTO is unique in two important ways.

The first way in which we are unique is that we have what we lawyers call "compulsory jurisdiction." All WTO Members have agreed in the WTO treaty to use the WTO dispute settlement system to resolve all treaty-related disputes with other WTO Members. A WTO Member that does not do so may be sued by another WTO Member for not doing so in WTO dispute settlement. Thus far, this, too, has never happened.

The second way in which the Appellate Body is unique is that we make judgments that are enforced. Our judgments are enforced, not by us, but by the Members of the WTO themselves through the power of economic suasion. Like all treaties, the WTO treaty is in the nature of a contract. Indeed, the members of the GATT, which preceded the WTO, were often called "Contracting Parties."...