Does Legal Capacity Matter? A Survey of WTO Members

Abstract

Previous studies of WTO dispute settlement have sought to evaluate whether a Member’s legal capacity influences its odds of bringing litigation before the multilateral trade regime. Because direct measures of legal capacity are elusive, these studies have had to use indirect proxies, such as per capita income or number of delegates in Geneva. Yet, the reliability of these measures is questionable. To gauge legal capacity more directly, we surveyed all WTO Members, posing questions concerning their professional staff; bureaucratic organization at home; bureaucratic organization in Geneva; experience handling general WTO matters; and involvement in WTO litigation. Using responses from this survey, we constructed an index of Members’ WTO legal capacity that speaks more fully to the challenges of dispute settlement than do commonly used proxies, none of which are strongly correlated with our measure. We supplemented this survey with over three dozen semi-structured interviews with Members’ representatives in Geneva, the results of which bear out the importance of properly measuring legal capacity.

Keywords: legal capacity, power and international law, WTO, dispute settlement

JEL Classification: F02, F1