Clearing the smoke: The legitimation of judicial power at the WTO

What role, if any, does the search for judicial legitimacy play in judgments rendered by the World Trade Organization (WTO) Dispute Settlement System (DSS)? And with which audiences, and through which judicial means does the WTO DSS try to communicate in order to sustain its legitimacy? Empirical evidence generated through semi-structured interviews with WTO practitioners demonstrate that since its inception, the interstate WTO DSS has been engaged in a continuing quest for legitimacy amidst multiple audiences, well beyond WTO Member States.This quest – prominent in the dispute-category known as ‘trade-and’ disputes – has manifested itself in both the rhetorical, procedural, and substantive judicial choices taken by WTO adjudicators. Also, this quest has not been static, but rather dynamic in nature, whereas in response to some audiences’ demands, jurisprudential, procedural and rhetorical readjustments have been made along the way. The article demonstrates these assertions through discursive analysis of the recent US-Clove Cigarettes dispute, while revisiting several earlier jurisprudential milestones on the DSS’ road to legitimacy. Coupling this analysis with insiders’ views, the article sheds a novel empirical light on how the DSS’ legitimacy challenges in ‘trade-and’ disputes are experienced ‘from within’, and the manner in which they are subsequently weaved into the choices taken by WTO adjudicators in their strategic judicial space. [M]ost adjudicators have a sense at an intuitive level as to what the main elements of ‘legitimacy’ are. One would be transparency, due process… consistency with existing case law, like arguments being treated the same way….And one of those things… would be understanding the audience… knowing who the audience is for a particular type of decision and drafting the decision, at least stylistically in some respects, in a way that the audience will perceive it as being legitimate, and the audience for a dumping case will be different from the audience for US-Clove Cigarettes.