Article: Epistemic Contests and Legitimacy of the World Trade Organization: The Brazil – USA Cotton Dispute and Incremental Balancing of Global Interests, 4(1) Trade, L. & Dev. 200 (2012) [available here]
Reply by Arthur Daemmrich
“I say that the just is nothing other than the advantage of the stronger.” Thrasymachus (Plato, The Republic)
I begin with thanks to the introducer (Simon Lester) and reviewer (Joost Pauwelyn) and a warning to those looking for an online dispute about WTO disputes that this reply largely builds on the commentary rather than taking issue with it.
My article drew upon a specific case study of the Brazil – USA cotton dispute to consider the broader emergent phenomenon of epistemic disputes in the international arena. Broadly, the WTO is a fascinating subject for analysis as the world’s premier body grappling with a question fundamental to our current era of globalization: In the absence of global sovereign, how shall we govern? As the WTO dispute settlement body grows in significance, it confronts challenges on a number of fronts, but especially when adjudicating disputes for which claimants develop alternative models, test methods, and even espouse fundamentally divergent theories of risk (or precaution) or economic behavior. I want to highlight 3 points for possible further discussion from other forum participants.
First: Power and Justice. Do we wish for a future of organized and sequential globalization, or for its unfolding in an ad hoc manner? In dialogue with Socrates, Thrasymachus suggests that each ruling group sets its own laws; what is just can vary by society but is determined domestically by the powerful. While legal systems worldwide have moved far beyond Thrasymachus, in the international system, might often means right. Developing countries seeking access to the economic prosperity promised by international trade long argued that joining the WTO meant they had to follow rules that the United States and European countries could flaunt. Yet, as I show in my article, WTO dispute settlement has achieved historically significant parity in recent years. Some developing countries (e.g., Brazil) have invested in the legal and technical expertise it takes to pursue a dispute to resolution. In so doing – and by pushing the WTO to expand the common law governing international trade that is built by dispute rulings – they have advanced international justice. When the reviewer notes the alternative to a technical turn in disputes is not “democratic nirvana” but rather “gunboat diplomacy,” we are in agreement that such an outcome would be a reversal.
So disputes and the dispute settlement process are good for the cause of international justice (for trade), but they also take significant resources to sustain. For example, Brazil could build the legal, technical, and even econometric expertise for the cotton dispute and others, but poorer West African cotton growing countries cannot. As the technical turn in WTO disputes intensifies, where will countries with more modest resources get the human experts and scientific or econometric expertise necessary to sustain the move away from justice by the strong?
Second: Legitimacy. I agree with the reviewer that a “bi-directional interaction of politics and law,” as he puts it, is critical to sustaining and visibly demonstrating the WTO’s legitimacy in the absence of another democratic foundation (e.g., public voting or other forms of representation and decision making). In my article, I sought to draw on the political science literature concerning legitimacy and involvement of organized interests. While some process of ‘voting’ by official parties or the general public would likely undermine the goals, purpose, and even legitimacy of the dispute process, if it remains closed to organized interests, the dispute process runs the risk of failing to demonstrate flexibility. The DSB needs to build legitimacy over time. Open it to all comers and chaos would ensue. Close disputes to any but the country parties and a small number of certified experts and legitimacy is weakened. There is no easy answer to this conundrum, but accepting third-party amicus briefs and similar approaches are a good first step. These will help reduce the power asymmetries that can arise in relation to econometric and scientific studies that both the reviewer and I have identified. Answering my seemingly rhetorical question concerning poorer countries’ access to expertise, the WTO could take a next step by actively inviting studies from scientific associations and others prepared to carry out independent research. In this manner, power asymmetries in the mobilization of scientific or econometric expertise would be reduced, though not eliminated.
Third: Science, Modeling, and Adjudicator training. Courts worldwide struggle with the use of scientific, technical, and economic data and methods, not to mention the human experts called to testify. A significant body of scholarship has developed over the past 20 years regarding science in court, with contributions from academics in law, Science and Technology Studies (STS), and other fields. Three findings relevant to this forum stand out from this work: (1) the specific case in front of the court (or the WTO dispute panel) may not fit with the present orientation of academic science; (2) judges often call for a more definitive answer than scientists are prepared or even qualified to give; (3) legal disputes can open to scrutiny assumptions otherwise unstated due to their commonality within a scientific field or sub discipline. Using the Brazil – USA cotton dispute as an example, there were few academic agricultural economists working on issues relevant to the case and certainly nobody had an off-the-shelf answer concerning either the general market distortions caused by the particular mix of subsidies given by the U.S. government in a particular set of years (especially since the subsidies themselves were contingent on the cotton market’s performance in those years). Science (and by extension, economics) is not an input-output machine ready to provide unambiguous answers. Rather, it embodies theories and practices undergoing constant change, at a pace that can be evolutionary, or sometimes even revolutionary. As the STS scholar Sheila Jasanoff noted 20 years ago in a Jurimetrics article (v. 32, p. 345+): “What is at issue in most legal proceedings is precisely the social dimension of science: the matrix of social practices, conventions, institutions, and interests that sustains scientific progress and gives legitimacy to particular scientific facts.” Along these lines, the reviewer correctly cautions that nihilism is no solution; confronted with contradictory studies, adjudicators should not assume they cancel one another out. He calls for additional training in econometric modeling, which I would endorse with the further recommendation of training in the sociology of science and the sociology of knowledge. Perhaps a short course in econometrics, modeling, and STS for dispute panelists would be a pragmatic next step. May I suggest a week-long summer academy in Switzerland?
I thank Joost Pauwelyn for his insightful comments and the editors of Trade, Law & Development for tackling issues at the forefront of the WTO’s role in global governance as well as academic thinking about expertise and the law.