The EU as an effective trade power? Strategic choice of judicial candidates in the context of the World Trade Organization

International Relations

Volumn 27, Issue 3, 2013, Pages 325-340

  Elsig, Manfred ^a  

^a UNIVERSITY OF BERN   (Switzerland)

Author keywords

Court; Effectiveness; European Union (EU); Foreign policy; International organization; Legalization; World Trade Organization (WTO)

Indexed keywords

EID: 84883398099     PISSN: 00471178     EISSN: 17412862     Source Type: Journal    
DOI: 10.1177/0047117813497301     Document Type: Article

References (82)

1. I refer to European Community (EC) when explicit reference is made to the pre-Maastricht period, otherwise I use the term European Union (EU).
2. Michael Johnson, European Community Trade Policy and the Article 113 Committee (London: The Royal Institute of International Affairs, 1998).
3. Manfred Elsig, The EU's Common Commercial Policy: Institutions, Interests and Ideas (Aldershot: Ashgate, 2002).
4. Arne Niemann and Charlotte Bretherton, 'EU External Policy at the Crossroads: The Challenge of Actorness and Effectiveness,' International Relations, 27(3), pp.261-275.
5. Stephen Woolcock and Michael Hodges, 'EU Policy in the Uruguay Round,' in Helen Wallace and William Wallace (eds), Policy-Making in the European Union (Oxford: Oxford University Press, 1996), pp. 301-24.
6. Sophie Meunier and Kalypso Nicolaïdis, 'Who Speaks for Europe? The Delegation of Trade Authority in the European Union,' Journal of Common Market Studies, 37(3), 1999, pp. 477-501.
7. Alasdair Young, 'The Adaptation of European Foreign Economic Policy: From Rome to Seattle,' Journal of Common Market Studies, 38(1), 2000, pp. 93-116.
8. Dirk De Bièvre and Andreas Dür, 'Constituency Interests and Delegation in European and American Trade Policy,' Comparative Political Studies, 38(10), 2005, pp. 1271-96.
9. See also Arlo Poletti and Dirk De Bièvre, 'The Political Science of European Trade Policy: A Literature Review with a Research Outlook,' Comparative European Politics. Epub ahead of print 4 February 2013. DOI: 10.1057/cep.2012.35.
10. Sophie Meunier and Kalypso Nicolaïdis, 'The European Union as a Conflicted Trade Power,' Journal of European Public Policy, 13(6), 2006, pp. 906-25.
11. Meunier and Nicolaïdis, 'Conflicted Trade Power,' p. 907.
12. This supports the point made in the introduction that studies have exposed the lack of (genuinely) normative intentions/commitment. See: Niemann and Bretherton, 'Challenge of Actorness and Effectiveness.'
13. Hazel Smith, European Union Foreign Policy: What Is It and What It Does (London: Pluto, 2002).
14. Roy H. Ginsberg, The European Union in International Relations: Baptism by Fire (Lanham, MD: Rowman & Littlefield, 2001).
15. Arne Niemann, 'Conceptualising Common Commercial Policy Treaty Revision: Explaining the Stagnancy and Dynamics from the Amsterdam IGC to the Treaty of Lisbon,' European Integration Online Papers, 15, 2011, Article 6.
16. Elsig, The EU's Common Commercial Policy.
17. Niemann and Bretherton, 'Challenge of Actorness and Effectiveness.'
18. Such a conceptualization fuses two of the elements proposed to capture actorness: 'output cohesion' and 'autonomy,' see Joseph Jupille and James A. Caporaso, 'States, Agency and Rules: The European Union in Global Environmental Politics,' in Carolyn Rhodes (ed.) The European Union in the World Community (Boulder, CO: Lynne Rienner, 1998), pp. 213-29.
19. See also Niemann and Bretherton, 'Challenge of Actorness and Effectiveness.'
20. Oran R. Young, International Governance: Protecting the Environment in a Stateless Society (Ithaca, NY: Cornell University Press, 1994).
21. India and Brazil have been active members in the GATT/WTO system since the late 1980s. The Russian Federation joined the organization in 2012. Only, the impact of China that acceded to the WTO in 2001 has been increasing in recent years.
22. Thomas Bernauer, Manfred Elsig and Joost Pauwelyn, 'The Dispute Settlement Mechanism: Analysis and Problems,' in Amrita Narlikar, Martin Daunton and Robert M. Stern (eds), Oxford Handbook on the World Trade Organization (Oxford: Oxford University Press, 2012), pp. 485-506.
23. Other reform steps include the 'right to a panel' (e.g. agreement to abandon the option to block the launching of a case), the automatic adoption of reports (e.g. the losing party can no longer block a report), an institutionalized 'decentralized' system of sanctioning, where the winning party is granted the authority to apply sanctions against the losing party if the latter does not comply with the reports' recommendations.
24. Given that the EU and US are often involved in disputes (as complainant or defendant), it is not unusual to find the US or the EU ABM is sitting on a division that hears such cases.
25. Manfred Elsig and Mark Pollack, 'Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body,' European Journal of International Relations. Epub ahead of print 5 September 2012. DOI: 10.1177/1354066112448201.
26. WT/DSB/1 (10 February 1995).
27. Erik Voeten, 'The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights,' International Organization, 61(4), 2007, pp. 669-701.
28. See Elsig and Pollack, 'Agents, Trustees and International Courts'.
29. WT/DSB/1 (10 February 1995).
30. WT/DSB/1 (10 February 1995).
31. This acceptance is significant from a presence perspective, see David Allen and Michael Smith, 'Western Europe's Presence in the Contemporary International Arena,' Review of International Studies, 16(3), 1990, pp. 19-37. The EU and the US even demanded two seats each in the run-up to the first selection. This demand, however, was not seen as legitimate by other parties and was not accepted. Yet, it bolstered the case for a permanent seat (Elsig and Pollack, 'Agents, Trustees and International Courts').
32. Elsig and Pollack, 'Agents, Trustees and International Courts.'
33. WT/DSB/M9 (1 and 29 November 1995): the original members of the AB were from the EU, the US, New Zealand, Egypt, the Philippines, Uruguay, and Japan.
34. 'It was political in the sense that countries wanted to be represented; [...] it was a question of prestige, [...] and ambassadors worked hard for pushing one of their nationals through' (Interview, 1 July 2010).
35. The EU Commissioner for External Trade Leon Brittan and the USTR Mikey Kantor agreed to support candidates who were working for the integrity of the system and would not represent WTO Members (Interview, 23 September 2010).
36. Interview 4 June 2010.
37. Interview, 7 July 2010. Ehlermann was a former Director-General of the Legal Service of the European Commission and had acted as Director-General of the Directorate-General Competition. Around the time of appointment, he also was appointed professor at the European University Institute in Florence.
38. Interview, 7 July 2010.
39. Elsig and Pollack, 'Agents, Trustees and International Courts.'
40. WT/DSB/M9 (1 and 29 November 1995).
41. Ehlermann himself had good relations with the German State Secretary for Economic Affairs and former EU trade negotiator Hugo Paeman who encouraged him to run. He also knew WTO Director-General Renato Ruggiero who served on the G6 (Interview, 4 June 2010).
42. Interview, 4 June 2010.
43. Peter Van den Bossche, 'From Aftermath to Centerpiece: The WTO Appellate Body and its Rise to Prominence in the World Trading System,' in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds), The WTO at Ten (Cambridge: Cambridge University Press, 2006), pp. 289-235.
44. James Bacchus, Trade and Freedom (London: Cameron May, 2004).
45. Former ABM Julio Lacarte, public statement at a conference on 'Face to Face with AB Members' organized by the Graduate Institute of International and Development Studies, Geneva, 27 May 2008.
46. These three judges were selected initially for 2 years and were reappointed for another 4 years. The idea was to decouple future selections and not to face the situation again of having to select seven new ABMs at once. However, the fact that two ABMs died during their tenure and that some did not seek reappointment (or were no longer supported by the nominating state for a second term) meant that, over time, selections were no longer grouped in large packages.
47. Elsig and Pollack, 'Agents, Trustees and International Courts.'
48. Interview, 30 August 2010.
49. Interview, 15 July 2010.
50. Interview, 2 June 2010.
51. Interview, 30 August 2010.
52. Interview partners recalled candidates from Belgium, Germany and Italy.
53. Interview, 6 July 2010.
54. Interview, 15 July 2010.
55. Interview, 30 August 2010.
56. Interview, 30 August 2010.
57. Interview, 30 August 2010.
58. WTO Members did not like the position of the AB that unsolicited briefs by nongovernmental organizations were to be accepted by panels, see, for instance, Petros Mavroidis, 'Amicus Curiae Briefs before the WTO: Much Ado about Nothing,' Jean Monnet Working Paper 2/01 (New York: NYU School of Law, 2001).
59. One ABM suggested that the AB was more holistic in its approach toward interpretation, Interview, 6 June 2010.
60. Interview, 25 June 2010; there are only a few examples where a single ABM would offer a dissenting or concurring opinion. This has been a deliberate policy of the first generation of ABMs. However, the pressure on candidates to dissent is increasing.
61. Interview, 2 June 2010.
62. Interview, 2 June 2010.
63. Interview, 6 July 2010.
64. Email exchange, 30 April 2012. Spain also had a candidate who was not ranked in the top 3. The intervention was an attempt to push for its preferred candidate knowing that the WTO Ambassadors in Geneva might opt for this candidate. Interview, 23 April 2012; email exchange 30 April 2012.
65. Interview, 18 June 2010
66. Interview, 18 June 2010
67. Interview, 18 June 2010
68. Interview, 18 June 2010.
69. Interview, 2 June 2010.
70. Interview, 5 July 2010.
71. Adverse selection exists when principals (Members) choose the wrong agent (candidate) who is able to hide his true intentions before delegation takes place.
72. Japan has lost this privilege (strictly speaking, it never had a permanent seat).
73. Brazil and India rotate with other countries in their respective regions.
74. Elsig and Pollack, 'Agents, Trustees and International Courts.'
75. The other US candidate was a well-known academic in the field of international economic law, but not a WTO insider.
76. Interview, 23 September 2010.
77. Interview, 23 September 2010.
78. Elsig and Pollack, 'Agents, Trustees and International Courts.'
79. Inside US Trade, 9 September 2011.
80. Richard Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political Constraints,' American Journal of International Law, 98(2), 2004, pp. 247-75.
81. Elsig and Pollack, 'Agents, Trustees and International Courts.'
82. Manfred Elsig and Cédric Dupont, 'European Union Meets South Korea: Bureaucratic Interests, Exporter Discrimination and the Negotiations of Trade Agreements,' Journal of Common Market Studies, 50(3), 2012, pp. 492-507.