The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 27, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased rule development explains this disparity. This Article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.
WTO, Dispute settlement, international trade, positive theory of litigation, empirical legal studies
Place of Original Publication
Vanderbilt Journal of Transnational Law
42 Vanderbilt Journal of Transnational Law 383 (2009)
Colares, Juscelino F., "A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development" (2009). Faculty Publications. 19.