Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization

Posted: 11 Jun 2011 Last revised: 12 Aug 2013

See all articles by Manfred Elsig

Manfred Elsig

University of Bern

Mark A. Pollack

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

Date Written: June 9, 2011

Abstract

Scholars have increasingly theorized, and debated, the decision by states to create and delegate authority to international courts, as well as the subsequent autonomy and behavior of those courts, with principal-agent and trusteeship models disagreeing on the nature and extent of states’ influence on international judges. This article formulates and tests a set of principal-agent hypotheses about the ways in which, and the conditions under which, member states are able use their powers of judicial nomination and appointment to influence the endogenous preferences of international judges. The empirical analysis surveys the record of all judicial appointments to the Appellate Body (AB) of the World Trade Organization over a 15-year period. We present a view of an AB appointment process that, far from representing a pure search for expertise, is deeply politicized and offers member-state principals opportunities to influence AB members ex ante and possibly ex post. We further demonstrate that the AB nomination process has become progressively more politicized over time as member states, responding to earlier and controversial AB decisions, became far more concerned about judicial activism and more interested in the substantive opinions of AB candidates, systematically championing candidates whose views on key issues most closely approached their own, and opposing candidates perceived to be activist or biased against their substantive preferences. Although specific to the WTO, our theory and findings have implications for the judicial politics of a large variety of global and regional international courts and tribunals.

Keywords: international law, international courts, judicial appointment, World Trade Organization, principal-agent, trustee

JEL Classification: K33, F10, F13

Suggested Citation

Elsig, Manfred and Pollack, Mark A., Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization (June 9, 2011). Available at SSRN: https://ssrn.com/abstract=1861443

Manfred Elsig

University of Bern ( email )

Gesellschaftsstrasse 49
Bern, BERN 3001
Switzerland

Mark A. Pollack (Contact Author)

Temple University - Department of Political Science ( email )

461 Gladfelter Hall
Philadelphia, PA 19122
United States

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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