Precedent Citation at the WTO - Shifting the Empirical Focus to Panelists

Abstract

Scholars of judicial decision making have long theorized and studied how personal characteristics are related to judicial outcomes in the domestic sphere. But few such studies have been done in the international legal environment, where scholars largely neglect the person of the judge as a relevant dimension for understanding decision making and judicial outcomes. We turn our attention to the WTO dispute settlement system and its rules on precedent usage. Since the WTO’s official rules on precedent usage is ambiguous — and thus fail to provide determinative guidance — we show that personal characteristics may matter greatly in how individual panelists approach precedents usage in panel decisions.Applying both parametric and non-parametric methods, we find that panel chairs who are lawyers cite precedents with less frequency than chairs who are not lawyers. By contrast, we find insufficient evidence to support that chairs from common law countries cite precedent at rates differing from those of chairs from non-common law countries. Overall, our findings suggest that the background of those appointed to the panels plays an important role in the creation and flexibility of WTO rulemaking through the use of precedent.