WTO Panelists Are From Mars, ICSID Arbitrators Are From Venus: Why? And Does it Matter?

Abstract

At the 20th anniversary of the World Trade Organization (WTO), the WTO’s dispute settlement system is celebrated as one of the organization’s biggest achievements. Compare this to investor-state dispute settlement (ISDS), under heavy fire in both capital-importing and -exporting countries. How is it that today’s perception of two parallel processes of legalization of world politics, on two closely related subject matters of global economic affairs – cross-border trade and cross-border investment -- differs so much? The aim of this article is not to provide a comprehensive answer to this question. Instead, it focuses on only part of a possible explanation: The pool of individuals deciding WTO versus ICSID disputes. Based on new data, the article identifies striking differences between WTO panelists and ICSID arbitrators in terms of nationality, professional background, legal expertise, diversity, status and ideology. It then offers a number of factors that explain these differences centered on appointment rules and conditions and the broader institutional context of the WTO versus ICSID. The contribution this article makes is, first of all, empirical: based on data, demonstrating the differences between WTO and ICSID adjudicators. A second goal is explanatory: to highlight factors that rationally explain these differences. Thirdly, and finally, the article has a normative thesis: rule of law or legalization at the public international law level requires “voice” and political participation; in terms of adjudicators, representativeness, inclusiveness and trust tend to be more important than individual expertise and experience (the rule of law without necessarily the rule of lawyers). Prescriptively, this thesis expects relative continuity in the pool and attributes of WTO adjudicators; it foresees change in who will decide ISDS cases in the future.