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Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO

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Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO Page1 World Trade Review 2016 Is compliance the name of the effectiveness game? Goal-shifting and the dynamics of judicial effectiveness at the WTO Sivan Shlomo Agon Subject: International trade . Other related subjects: Dispute resolution. Keywords: Dispute resolution; World Trade Organisation; *World T.R. 671 Abstract: In line with current research on the effectiveness of international law and institutions, much of the literature on the effectiveness of the WTO dispute settlement system (DSS) has settled on compliance as its primary effectiveness benchmark. This article challenges this trend. It argues that common models gauging the DSS effectiveness through the narrow lens of compliance disregard many other institutional goals pursued by the system, and the conflicts latent among them. Furthermore, existing models are also static in nature--predicated on problematic assumptions regarding the constant supremacy of the DSS compliance objective--what leads them to overlook important shifts amidst the multiple and conflicting goals of the DSS that take place over time and across disputes. Building on the goal-based approach developed in the social sciences, the article introduces a multidimensional framework for analyzing the DSS effectiveness, using the multiple, conflicting and shifting goals set for the system by WTO Members as key effectiveness benchmarks. The article then turns to closely examine the novel concept of "goal-shifting' - essential for effectiveness assessment - and through interview-based analysis of different categories of WTO disputes shows how the DSS goals change with time and context, as a consequence of the changing modalities in which the system operates. 1. Introduction International law and the institutions constituted to reap the benefits of international cooperation affect almost all aspects of our lives: the products we consume, the sustainability of our environment, and our ability to enjoy basic human rights. The increased role played by international law and its institutions has generated, in turn, a growing academic interest in questions about the effectiveness of these social constructs and the assessment of their actual performance. Prominent in this evolving body of research, primarily among jurists, has been the tendency to approach the effectiveness of international law, and international courts in particular, through the prism of compliance with international norms *World T.R. 672 and decisions (see Martin, 2013; Howse and Teitel, 2010; Shany, 2014: 4-5; Shany, 2012b: 227; Hafner-Burton et al., 2012: 93). This focus has been especially conspicuous in the literature on the effectiveness of the World Trade Organization (WTO) dispute settlement system (DSS), as it edged away from its diplomatic orientation under GATT toward a more legalized one with the formation of the WTO. Thus, the effectiveness of the WTO DSS has often been assessed against the benchmark of WTO Member compliance with DSS rulings (see, e.g., Wilson, 2007; McRae, 2008; Davey, 2005; Horlick and Coleman, 2008; Lee, 2011; Davey, 2009; Epstein et al., 2009; Varella, 2009; Posner and Yoo, 2005: 46-50), understood as "a causal relationship between judicial decisions and state practice, leading to a convergence of the two' (Shany, 2012a: 261). This focus on compliance surely makes sense when dealing with international adjudicating institutions like the WTO DSS. Compliance constitutes a central goal of international courts, and embodies the aspiration of lawyers operating in the anarchic international legal system "to bolster the international rule of law' (Cogan, 2006: 191) and foster the "international culture of compliance' (Henkin, 1995: 45). Furthermore, focusing on unchanging, one-dimensional benchmarks such as judgment compliance, simplifies effectiveness studies of complex institutions like the WTO DSS, rendering them more manageable and measureable (Martin, 2013: 591). Despite their intellectual and practical appeal, however, effectiveness models focusing on the fixed benchmark of compliance are not satisfying.1 This is not because of what they reveal about the DSS, which enjoys relatively high judgment compliance rates,2 but because of the many things they leave out. First, common approaches gauging the DSS effectiveness through the limited lens of compliance Page2 rule out consideration of the broader fabric of multiple organizational goals that WTO Members expect the DSS to achieve, of which compliance is not the most prominent. Second, existing approaches disregard the complex interrelations and conflicts between the DSS multiple goals, and the trade-offs such conflicts impose on the outcomes produced by the system. Finally, current effectiveness models are static in nature, predicated on the supposedly unchanging character of DSS goals and the constant supremacy of the compliance objective. Such models thus *World T.R. 673 overlook important shifts in emphasis amidst the multiple goals of the DSS, which take place over time or across different types of WTO disputes, and the consequent effect of such shifts on the analysis of the DSS effectiveness. The need arises, therefore, for a more comprehensive, dynamic, and nuanced analytical framework for studying the effectiveness of the WTO DSS. Building on the goal-based approach developed in the social sciences, this article plants the seeds for such a framework, conceptualizing the DSS effectiveness as the extent to which it achieves the goals set for it by the WTO and its Members. Such a goal-based approach not only brings to the fore the manifold organizational goals of the WTO DSS, beyond compliance; it also enables us to probe the real-life intricacies underlying the system's operation, and consequently its effectiveness, as they derive from the multiple and conflicting nature of its objectives. Furthermore, the goal-based approach provides a fertile framework for generating new hypotheses about the DSS goals and their operationalization in the real world, with important descriptive and normative implications for the study of the work and effectiveness of the system. One such novel hypothesis is goal-shifting, according to which the goals of the DSS change with time and context. Thus, contrary to existing studies, which perceive DSS goals as static elements, we conceive these goals as dynamic in at least two senses. First, DSS goals, or their relative weight, shift vertically, along the various stages of the dispute settlement process or along the system's life. Second, the DSS goals also shift horizontally, across disputes, due to the distinct challenges facing the system in different types of cases reaching its docket. This goal-shifting phenomenon fundamentally challenges the convention that regards compliance as the key objective to be achieved by the DSS over time and across disputes, and consequently as the primary measure of its effectiveness. By framing, instead, the DSS goals as complex, non-binary constructs that change with shifts in the modalities in which the system operates, the goal-shifting concept significantly expands the existing discourse on the DSS and its effectiveness, showing how perceiving its goals and operation in static terms can lead to an imprecise understanding of its performance and outcomes. In developing this goal-shifting concept and the broader DSS goal-based effectiveness framework of which it is part, the article proceeds as follows. Section 2 draws on the social science literature on organization theory to sketch the conceptual contours of the DSS goal-based effectiveness framework, and addresses the notions of goal-multiplicity, goal-conflict, and goal-shifting, which constitute its theoretical underpinnings. Section 3 then lays the substantive foundations of the DSS effectiveness scheme in the form of the multiple, complementing, and conflicting goals entrusted to the DSS by WTO Members. Thereafter, Section 4 explores the shifting nature of DSS goals and probes their inner conflicts on the ground. It does so by focusing on "horizontal goal-shifting', and by means of an interview-based analysis of two categories of WTO disputes shows how the unique challenges facing the DSS in each dispute category generate shifts in the *World T.R. 674 emphases placed on its various goals, as well as conflicts and trade-offs between them. Section 5 concludes. Note that the article does not examine de facto the effectiveness of the WTO DSS. Rather, it lays down a broad conceptual framework and benchmarks that can guide future, more methodical and robust research on the effectiveness of the DSS or specific aspects thereof. 2.1 Re-conceptualizing the DSS effectiveness: the goal-based approach While a broad methodical framework for analyzing the effectiveness of the WTO DSS is missing from current debates, foundations for such a framework may be traced in the social sciences, where questions on organizational effectiveness have long been the subject of academic inquiry. Under the dominant model in the field, known as the goal-based approach,3 effectiveness is defined as the extent to which an organization attains its goals (Scott, 2003: 351-352; Etzioni, 1964: 8); namely, the desired outcomes it is expected to generate in the eyes of relevant constituencies (Scott, 2003: 22; Page3 Etzioni, 1964: 6; Rainey, 2014: 150). Following this definition, the effectiveness of the WTO DSS is conceptualized herein as the degree to which it attains the goals set for it by one dominant group of constituencies, the mandate providers, i.e., the international
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