Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body

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.

The role of the state in investor-state arbitration

The Role of the State in Investor-State Arbitration is a collection of contributions from lawyers, arbitrators and political scientists on the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration. The book analyzes the limits of the host State as a regulator, studying issues such as attribution and the role of State-Owned Enterprises and sub-State entities; the changing role of the home State in Investor-State disputes, including its direct participation in Investor-State arbitration and State to State dispute settlement; and the overall role that both home and host States can play in the improvement of Investor-State Dispute Settlement.