Negotiate or Litigate? Effects of WTO Judicial Delegation on U.S. Trade Politics

Abstract

This article argues that the Appellate Body of the World Trade Organization has engaged in substantial lawmaking since its inception and that, in many circumstances, decisions rendered by court-like bodies in the WTO are adhered to even when the same policy would not gain support in multilateral negotiations. The emergence of judicial lawmaking at the WTO is due to largely to the decline of non-reciprocity in the regime, which has catalyzed North-South deadlock in the legislative process. As the prospects for broad legislative rule-making have declined, judicial lawmaking has become more common. Judicial lawmaking is consequential only if the powerful members of the WTO choose to adhere to judicial rulings. To explain adherence, we offer a model of decision-making in the United States and suggest that, in a number of circumstances, the President and Congress find compliance with international court decisions to be in their interest, resulting in trade opening that would not have resulted from ministerial negotiations.

Keywords: WTO, judicial law-making, international court decisions, U.S. Trade Politics