'Judges Shalt Thou Make Thee in All Thy Gates': Reforming Judicial Office in the WTO Dispute Settlement System

Abstract

The design of judicial office is ostensibly a technical issue. Moreover, its component elements - seemingly procedural points such as the number of judicial decision-makers to a court, their term in office, eligibility for and methods of appointment to office, and procedures for dismissal - are important determinants of judicial independence, efficiency and credibility. The article critically examines the design of judicial office in the WTO dispute settlement system (Panels and Appellate Body) and proposals for its improvement within the Doha negotiations. Theoretical insights from political science are applied to a comparative study of judicial office in the WTO, the International Court of Justice (ICJ), and the European Court of Justice (ECJ). This analysis identifies many attributes of judicial office in which judicial independence and efficiency in the WTO are lacking, mainly in the Panels, but also in the Appellate Body. A blueprint for reform is offered on this basis, urging the creation of a permanent Panel Body, an increase in the number of Appellate Body Members, and several other finer points of reform. These changes must be implemented in order to enable the judicial element of the WTO to bear the burden that is placed upon it; they should neither await nor preclude the urgent, parallel need to strengthen the norm-creating capacities of the political organs of the WTO.

Keywords: World Trade Organization, International Trade Law, International Dispute Settlement, Judicial Independence