A column in the New York Times – about how US judges find academic writings irrelevant – reminded me of a question I have had for some time: Why is it that WTO panels and the Appellate Body almost never, ever, refer to scholarly writings (and if they do, it is to Brownlie rather than Jackson)?
On the opinio juris blog the point is made that in public international law, academics have more input than in domestic law. Yet, at the WTO, we must all admit, if you were just to read Appellate Body reports, you could think that there are no trade law academics …
Of course, we would all like to see our writings referred to in WTO reports. But that is not the point. The point is, rather, systemic and raises questions about the WTO "legal system" as such. Why is, for example, the ICJ referring to publications; and not the AB?
I have some possible explanations – the ICJ has Art. 38, the WTO does not; the WTO is or wants to be member-driven; the academic field is too new, divided and often advocacy; disputing parties themselves do not refer to publications in their submissions (but why not?); the AB reads but does not cite to writings, etc. -- but would be most interested in your views.
