Originally from American Review of International Arbitration - ARIA

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The WTO’s innovative dispute settlement system has quickly become one of the most frequently utilized mechanisms for international dispute resolution. The unique features of this system – including a right to appellate review and the possibility of sanctions for noncompliance – and the complex jurisprudence developed by WTO panels have given rise to a number of difficult and controversial issues. But perhaps no issue is as controversial as the legitimacy of the WTO’s dispute settlement system.

For this reason, trade lawyers and scholars will be grateful to Professor Joseph Weiler for his significant contribution to the legitimacy debate.1 Professor Weiler provides a subtle discussion of the tensions between the legitimacy of the WTO’s dispute resolution system within the trade community, and its legitimacy in the “real world” outside of the Geneva-based trade cognoscenti. His discussion of the interplay of law and politics at the WTO raises systemic questions about the uses and limits of judicialized dispute resolution at the international level. The paper implicitly raises a number of other important questions: Why do we see such a highly legalized system at the WTO, but not in other international regimes? Is it possible to enhance both the WTO’s internal and external legitimacy? What can we learn from the WTO system that can be applied to other forms of interstate dispute resolution?

These are large and difficult questions, and I cannot possibly address all of them in this short comment. Instead, I want to try to complement Professor Weiler’s paper by presenting three frameworks that might help us understand his arguments, and the questions they raise. First, I will locate Professor Weiler’s analysis within the context of larger debates over the WTO’s legitimacy. Second, I will outline an alternative framework that can be used to understand legitimacy issues, one that focuses less on the internal issues that Weiler highlights and more on the external issues. And third, I will suggest a slightly different way to understand the interplay between WTO law and politics, and how this different understanding may begin to point us out of the legitimacy dilemmas that Weiler so ably outlines.