Review of Defending Interests: Public-Private Partnerships in WTO Litigation. Gregory Shaffer. Brookings Institution Press: Washington, D.C., 2003. Pp. 227. $46.95 (cloth).
Much has been written about the increasing legalization of international trade relations, especially the development of the World Trade Organization (“WTO”) Dispute Settlement Mechanism (“DSM”). Professor Gregory Shaffer is at the forefront of this emerging field with his book Defending Interests: Public-Private Partnerships in WTO Litigation, which analyzes the vital role that ad hoc public-private networks play in litigation before the WTO. Shaffer explains that, although only WTO Member States can bring litigation before the WTO, private actors such as corporations and activists play an important role in states’ decisions about which cases to bring. Private actors may also provide states with the information and expertise needed to navigate the dispute settlement proceedings. Shaffer draws on over 100 interviews with critical actors to evaluate the public-private networks and partnerships that drive states’ decisions, primarily examining the networks in the United States and the European Union. Shaffer’s focus is on the actors, but his analysis necessarily includes a brief review of the system itself.
The WTO is unique among international institutions for its legalized dispute settlement with two levels of legal panels and effective enforcement mechanism. Member States can file complaints against any other Member State for actions they believe violate a provision of a WTO agreement. The first step in the procedure is a period of mandatory consultation between the opposing parties. Many disputes are settled at this stage, before actual litigation, due to strategic legal decisions, expediency, or political considerations. If the complaint is not settled during the consultation period, it is referred to a panel of experts for adjudication. The panel’s decision can then be appealed to the Appellate Body, which reviews the case much as an appellate court in the United States would. A decision that survives appellate review is considered final and enforceable. While neither the WTO nor a member country can force a country to change its offending laws or practices, the WTO can authorize the winning country to withdraw trade concessions, effectively imposing sanctions on the loser. The imposition of these sanctions is optional, and, frequently, the states negotiate an alternative settlement instead. This seemingly toothless enforcement mechanism has been remarkably effective in bringing about compliance with WTO agreements.