IPEG 2009 Workshop, York. Friday 12th June, Panel 2 15:00-16.15

1. IPEG 2009 Workshop, York. Friday 12th June, Panel 2 15:00-16.15 Complex agency – the WTO’s Dispute Settlement Body as a Transnational Governance Network and what it means for developing country Member-states Michael Strange (mstran@ruc.dk), Roskilde University.

2. Research problem: Formally only Member-states can launch disputes and be represented in hearings. So, an intergovernmental process. However, there’s a prevalent observation in the literature that WTO dispute settlement includes interactions that exceed this narrow view of agency. So, how to understand this more complex structure of interactions constitutive of WTO dispute settlement? And what does it mean for those developing country Member-states currently under-represented within the system?

3. Research question: • To what extent are non-state actors present within WTO dispute settlement? • What function do they serve? • Can WTO dispute settlement still be described as an intergovernmental process? • If the ’intergovernmental’ label is problematised, how else should WTO dispute settlement be described? • And does this mean those Member-states already struggling to be part of the system face being crowded-out, or can they use these new actors to increase their capacity to be engaged?

4. Theory and empirical data to be used: International Trade Literature: • General consensus that WTO trade law remains an evolving process, subject to not only Member-state negotiations but also the ability of civil society to politicise issues. • Although the proceedings of WTO dispute settlement are based upon the formal rules laid out in the Dispute Settlement Understanding, their interpretation is subject to both a high degree of ambiguity and contestation. • As such, who is involved in WTO dispute settlement proceedings is very important in the further development of WTO trade law.

5. Theory and empirical data to be used: Literature on Civil Society/NGOs: • Politicising role. • Formalised role in WTO. • Legitimating role – democratic accountability? • Or, in that many are Western then only further tilt the WTO system towards Western interests? Literature on private interests: • Sometimes described as ’privatisation’ of multilateral trade governance. • Prominent role in history of multilateral trade regime in lobbying governments, but also defining idea of ’trade’, e.g. ’trade-in-services’. • Seen as important stakeholders.

6. Theory and empirical data to be used: Network literature: • Networks not just at national level but also global, e.g. Transnational Advocacy Networks, Epistemic communities. • Emergence of new actors and interactions. • Necessary due to increasingly complex issue domain, e.g. ’Trade And…’ problem. ’Fuzzy’ borders of WTO. • Attempt to trace out all those understood as stakeholders, beyond formal structure of agency. • And move away from clear hierarchy, but also not as unstructured as a market. Interplay between structure and fluidity.

7. Theory and empirical data to be used: As such, need to look at: • Literature tracing out different forms of agency in WTO dispute settlement; • Specific cases, e.g. EC-Asbestos. • Interviews with those involved in WTO dispute settlement.

8. Argument: WTO dispute settlement as a site of contestation over the structure of social interactions constitutive of the global political-economy. And, one can better understand these interactions by mapping out agency in WTO dispute settlement as a transnational governance network. In addition to acknowledging agency as multi-level, this perspective has the advantage of being able to trace out the complex interplay of different governance mechanisms through which agency can appear both structured and fluid.

9. Context: Dispute settlement mechanism is at heart of WTO as the ’rule of law’ over old ’power politics’ in global trade relations. Only meant to enforce agreements by intergovernmental agreements. But, often agreements are ambiguous. ’Legislation by the bench’. Those rulings aren’t meant to change WTO agreements. Not stare decisis – setting legal precedent. But, in practice, rulings are often based upon earlier rulings. So, stare decisis in practice. So, what cases are brought and how rulings are produced are important to formation of WTO law (and global governance as covering ever-increasing sphere).

10. WTO dispute settlement as an intergovernmental regime: • Administered by Dispute Settlement Body, which is the WTO’s General Council meeting to discuss dispute settlement matters; • So, open to all WTO Member-states, who have exclusive right to vote in decisions. • And, those formally recognised as party to a dispute must be Member-states. Actors: 1) Member-state as complainant; 2) Member-state as respondent; 3) Member-state/s as third party/ies.

11. Expanded list of ’actors’ – deintergovernmentalisation • Legal Affairs division of the WTO Secretariat; • Panel Members; • Appellate Body Secretariat; • Appellate Body members; • Advisory Centre on WTO Law (i.e. assisting and representing Member-states); • Private firms (i.e. providing information to Members, funding private counsel representing Members, participating informally within dispute proceedings); • Non-governmental Organisations (i.e. providing submissions as either part of a Member-states submission, or as unsolicited; also, assisting Member-states); • Private counsel.

12. Empirical evidence: • Only at first stage with interviews with personnel from Legal Affairs division of WTO Secretariat, also AB Secretariat, NGOs, and Advisory Centre on WTO Law. • But, certainly network analogy seems to be confirmed. • And, emphasis on the role of private actors, e.g. in actual proceedings (though controversial). • Also, ACWL and ICTSD (International Centre for Trade and Sustainable Development) active in forming networks where the first, an IG, see the NGO as an ambassador for its work outside of Geneva in forming capacity-building linkages between private interests in developing countries. • Legal network, where personnel move from WTO Secretariat to law firms, who also are active in work with ACWL and ICTSD in developing countries.

13. Discussion: • Response to inability of Member-states to provide governance alone? • But, also due to political decisions, e.g. USTR and EU’s various legal arrangements to effectively allow private firms to launch cases; • So, network linkages due to both new demands required by global trade governance (e.g. issue-overlap, information-heavy), but also a discursive shift in how it should operate (e.g. environmental NGOs).

14. Discussion: • Those Member-states most active within DS – the EU and US – have made extensive use of their relations with private firms and NGOs; • Could network-building allow developing countries to be more engaged in DS, and so shape WTO law more? • Perhaps, but devd better placed to form linkages; • So unlikely to made a radical change; • But, important thing would be to at least help devg better assess the potential relevance of the DS system to their trade interests, which would better highlight inequalities and help push for institutional reforms;

15. Conclusion: • An ongoing project in its initial stages; • Need to collect more data on agency within cases; • But facing problem of where agency is often hard to trace out, e.g. lobbying by private firms; • Still, much to work with.