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

Elsig, Manfred; Pollack, Mark (2014). Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body. European journal of international relations, 20(2), pp. 391-415. Sage 10.1177/1354066112448201

[img] Text
ElsigPollackEJIR.pdf - Published Version
Restricted to registered users only
Available under License Publisher holds Copyright.

Download (359kB) | Request a copy

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.

Item Type:

Journal Article (Original Article)

Division/Institute:

02 Faculty of Law > Department of Economic Law > World Trade Institute
10 Strategic Research Centers > World Trade Institute

02 Faculty of Law > Department of Economic Law > NCCR International Trade Regulation
03 Faculty of Business, Economics and Social Sciences > Social Sciences > Institute of Political Science

UniBE Contributor:

Elsig, Manfred

Subjects:

300 Social sciences, sociology & anthropology > 340 Law
300 Social sciences, sociology & anthropology > 380 Commerce, communications & transportation
300 Social sciences, sociology & anthropology > 320 Political science

ISSN:

1354-0661

Publisher:

Sage

Language:

English

Submitter:

Manfred Elsig

Date Deposited:

01 Sep 2014 10:33

Last Modified:

31 May 2017 12:36

Publisher DOI:

10.1177/1354066112448201

BORIS DOI:

10.7892/boris.49454

URI:

https://boris.unibe.ch/id/eprint/49454

Actions (login required)

Edit item Edit item
Provide Feedback