The Judicialization of Governance in the WTO: ‘Strategic Litigation’ as an Explanatory Factor?

Abstract

While negotiations in the World Trade Organization (WTO) linger in gridlock, the WTO’s Appellate Body has become a strong international court in all but name. Over the years, increasing relative judicial power has lead to a judicialization of governance in the WTO: Appellate Body decisions have become increasingly authoritative and determinative not only for the solution of individual disputes but also for changes in the WTO’s overall legal and institutional setup. Offering explanations, some find an ‘activist’ Appellate Body that engages in inappropriate and illegitimate judicial lawmaking. Others observe a ‘capitulation’ of the WTO’s membership as a result of intractable collective action problems; like that the judicialization of governance in the WTO occurs because the members have handed over norm-creation powers to the judiciary. While both explanatory approaches add a number of valuable insights, they remain unsatisfactory.Starting from there, the present paper argues that ‘strategic litigation’ may be another factor for the increasing judicialization in the WTO: WTO members pursue, it is argued, long-term, systemic goals towards WTO governance (also) in the rather unlikely forum of WTO dispute settlement and in their capacities as litigants. After clarifying core concepts and introducing the setting in which strategic litigation takes place, the paper illustrates two incidents of successful strategic litigation on the part of the European Union (EU), which have both preserved and even strengthened the trend of a judicialization of governance in the WTO. Rather than judicial activism or member state passivity, a convergence of preferences and strategies between the EU and the Appellate Body can explain the outcomes in the incidents described. Compared to the United States (US), the EU is found to be a more likely and more successful strategic litigant, due to factors at the level of trade policy making within the US and the EU.