Sausage-Making at the WTO: Looking Behind the Curtain of Dispute Settlement Procedures Over Time

Abstract

There often exists a gap between public perceptions about how the proverbial sausage is made, and the reality of sausage-making. Just as often, sausage-makers have an incentive to preserve this gap between fact and perception. This chapter considers the analogous incentives of the various sausage-makers in international judicial settings, with a focus on the World Trade Organization (WTO). First, I describe findings showing that WTO adjudicators are not the only, or even the main, authors of WTO rulings, and the WTO Secretariat plays a large role in the preparation and drafting of rulings. I then consider the implications: does it matter who the authors of rulings are, so long as adjudicators retain the final say over the direction of the ruling? Finally, I show how we are now able to identify, using available text analysis methods, the authors of Appellate Body dissenting opinions. The implications are considerable: insofar as judges rely on the anonymity of dissents to safeguard judicial autonomy, the loss of this nominal protection calls for a rethinking of the institutional design of international tribunals.