- The Washington Times - Monday, January 19, 2004

The World Trade Organization should open its hearings, now conducted behind closed doors, to the public as a way of boosting confidence in the way it settles disputes, the global trade body’s former top judge said.

James Bacchus, from December 1995 until December 2003, was the chairman and the lone American on the WTO’s top court, officially called the appellate body.

He has weighed in on some of the most important trade disputes facing the United States, touching on products from beef to steel, and domestic laws from tax codes to customs rules. The rulings have required the United States to change its laws or face millions, sometimes billions, of dollars in trade sanctions.

“The best thing that could be done by the WTO to enhance its credibility in the world would be to open the doors of dispute settlement to public observation and public scrutiny. Then the world would see the process is open and fair and just,” Mr. Bacchus said in an interview.

Now a private citizen — he recently was hired to lead the law firm Greenberg Traurig’s global trade group — Mr. Bacchus for the first time feels free to critique publicly the global trade body where he worked for eight years. And he also aims to defend it as the best system ever devised for settling disputes between sovereign nations.

Critics have accused the WTO of creating new rules out of thin air and political decision-making.

“The WTO dispute settlement process has gone badly wrong and … changes are needed to bring it back on course,” Sen. Max Baucus, Montana Democrat, said last year following a government report detailing decisions for and against the United States.

A WTO decision on steel tariffs, imposed by President Bush in March 2002 to protect an ailing industry and ruled against by Mr. Bacchus’ court in November 2003, prompted further outrage.

“Dispute-resolution is not working and has been guided by politics rather than law,” Rep. Phil English, Pennsylvania Republican, said after the ruling.

Mr. Bacchus, a former House Democrat from Florida, will not comment on specific cases or the thinking of appellate body members in ruling on those cases. But he staunchly defends the dispute settlement process, while at the same time offering suggestions to bolster support for the WTO.

“If the doors were open, then the world would see that the process in the WTO is a legal process where due process is respected and every issue is examined exhaustively and fairly and independently and impartially,” he said.

The Bush administration already has proposed opening the dispute-settlement system to increased public scrutiny. The suggestion from the WTO’s top judge shows how important such an opening might be for the system’s credibility.

“It is only because the doors are closed that critics of the WTO can talk about star chambers and kangaroo courts,” Mr. Bacchus said.

The road to such a change in dispute settlement points to at least one clear shortcoming at the WTO. All 146 members of the organization must agree, by consensus, to new trade rules. But since the organization was founded they have been unable to do so.

Negotiations on a number of topics, including dispute settlement, began in 2001 but missed a series of deadlines and finally stalled in September 2003. The Bush administration is trying to breathe new life into the talks.

Mr. Bacchus said the WTO needs to agree on a new decision-making process.

“We have a very effective system for interpreting and upholding rules. We need a more effective system for making and revising rules,” he said.


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