Copyright (c) 2005 President and Fellows of Harvard CollegeHarvard International Law JournalSummer, 200546 Harv. Int'l L.J. 527LENGTH: 10948 wordsBOOK REVIEW: DEFENDING INTERESTS: PUBLIC-PRIVATE PARTNERSHIPS IN WTO LITIGATION.Gregory Shaffer. Brookings Institution Press: Washington, D.C., 2003. Pp. 227. $ 46.95 (cloth).NAME: Geoffrey D. Antell *BIO: * J.D. Candidate, Harvard Law School, 2007.SUMMARY:... I. UNITED STATES TRADE POLICY NETWORKS ... The compliance stage of a dispute is one example of how transatlantic private partnerships can effect public actor compliance. ... Alsosurprisingly absent in Shaffer's account is an analysis of alternative channels through which private parties and organizations pursue their trade policy goals. ... Shaffer provides little analysis of the public-private network strategies that channel potential litigation into alternative trade remedy provisions. ... Shaffer argues that increased partnership opportunities are leading to a more aggressive use of WTO litigation by the European Union.... The most notable omission in Shaffer's brief book is substantial analysis of developing country interests, and the increasing prevalence of developing countries in WTO litigation. ... This resource disparity is widely recognized as a major factor limiting the ability of developing countries to utilize the WTO Dispute Settlement Mechanism ("DSM"). ... Shaffer ignores the importance of pre-filing bargaining for developing countries--and generally between the United States and the European Union as well--and notes only that developing country filings are down relative to what they were under the General Agreementon Tariffs and Trade, before the formation of the WTO. ... TEXT: [*527] 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"). n1 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. n2 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 andpartnerships 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. n3 Member States can filecomplaints 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 [*528] 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. n4Shaffer's first two chapters briefly outline competing international relations theories and ground his analysis in the analytic work of network theorists. n5 The traditional view of international relations is Realism, which holds that states are the primary actors and treats international law as largely nonexistent or at least unenforceable. n6 Decisionmaking by states occurs in a black box, guided only by self-interest. Realists provide little or no explanation for how self-interest is determined and only limited consideration of the actors involved. Shaffer largely rejects the Realist approach. He focuses instead on the way in which international relations, at least in the realm of trade relations, are strongly influenced by private interests. Even when trade relations are enforced through a formal international agreement in which only states have standing, private actors can still be very influential. Shaffer innovatively applies network theory to investigate the role private actors play in selecting and shaping the cases brought before the WTO. n7 Network theory attempts to peer inside the black box in order to investigate how interactions amongst public and privateactors determine state action. In an increasingly globalized world, according to Shaffer, public actors are dependent on private actors to achieve their goals. This relationship is one of reciprocity, as public actors still retain unique coercive powers that private actors do not. n8 Investigating these interdependencies provides a clearer picture of how these relationshipsinfluence state actions.The ad hoc public-private networks that form around individual WTO disputes are driven primarily by resource interdependencies and the relative stake of an actor in the outcome. n9 Private firms depend on public actors for access to the WTO, while public actors rely on private parties for financial, political, and informational support. n10 Together, these networked partners evaluate the costs and benefits of bringing a claim and litigating or settling [*529] the dispute. These relationships are complicated further by globalized private actors who can exert power and form networks with multiple partners, both public and private, throughout the world. These networks can quickly proliferate
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