Does Legal Capacity Matter? Explaining Patterns of Protectionism in the Shadow of WTO Litigation

Issue Paper, International Centre for Trade and Sustainable Development, Geneva, Switzerland

41 Pages Posted: 10 Feb 2008 Last revised: 4 May 2011

See all articles by Marc L. Busch

Marc L. Busch

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS); Georgetown University - Department of Government

Eric Reinhardt

Emory University - Department of Political Science

Gregory Shaffer

University of California, Irvine School of Law

Date Written: February 1, 2008

Abstract

Does legal capacity matter in the World Trade Organization (WTO)? The conventional wisdom is that the right perseveres over might under the WTO's more legalistic dispute settlement system. Yet, others stress that members can only take advantage of the rule of law if they have the resources to protect their rights through litigation. Despite all the interest in this topic, there is virtually no empirical evidence about how legal capacity affects patterns of litigation and import protection. Using an original survey of WTO delegations, we construct a novel index of legal capacity, and include this in a study of 1321 antidumping (AD) investigations between 1995 and 2005 by 17 WTO Members against firms located in 33 countries. We hypothesize that Members with more legal capacity are more likely to challenge AD suits brought against them at the WTO, and less likely to be named in AD petitions in the first place. The results strongly bear out our expectations; legal capacity matters.

Keywords: International, International Economic Law, International Law, Transatlantic Relations, Comparative law, Law & Society

JEL Classification: K00, K33, K23, Q10, Q17

Suggested Citation

Busch, Marc L. and Reinhardt, Eric and Shaffer, Gregory C., Does Legal Capacity Matter? Explaining Patterns of Protectionism in the Shadow of WTO Litigation (February 1, 2008). Issue Paper, International Centre for Trade and Sustainable Development, Geneva, Switzerland . Available at SSRN: https://ssrn.com/abstract=1091435 or http://dx.doi.org/10.2139/ssrn.1091435

Marc L. Busch (Contact Author)

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS) ( email )

Washington, DC 20057
United States

Georgetown University - Department of Government ( email )

ICC, Suite 681
Washington, DC 20057-1034
United States

Eric Reinhardt

Emory University - Department of Political Science ( email )

Atlanta, GA 30322
United States

Gregory C. Shaffer

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

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