Does Legal Capacity Matter? A Survey of WTO Members

21 Pages Posted: 25 Aug 2009 Last revised: 2 Sep 2009

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: August 5, 2009

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

Suggested Citation

Busch, Marc L. and Reinhardt, Eric and Shaffer, Gregory, Does Legal Capacity Matter? A Survey of WTO Members (August 5, 2009). World Trade Review, 2009; Minnesota Legal Studies Research Paper No. 09-31. Available at SSRN: https://ssrn.com/abstract=1444385 or http://dx.doi.org/10.2139/ssrn.1444385

Marc L. Busch

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 (Contact Author)

University of California, Irvine School of Law ( email )

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

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