Institutional Design and Organizational Structures

The first factor to be considered when comparing international judicial bureaucracies relates to the organizational arrangements that tie those bureaucracies to their respective courts. A fundamental distinction can be drawn between, on the one hand, those systems where clerks are called to serve individual adjudicators and, on the other hand, those other systems where a registry or secretariat supports the whole bench in a collegial capacity. These two diverging models come with specific contractual conditions. Individual clerks are typically recruited on an ad hoc or temporary basis and have no hierarchical superiors other than their judges. Collective bureaucracies, by contrast, are more often hired through public competitions, hold permanent or long-term contracts, and are internally organized by tiers of seniority.

The assistants to investor-state dispute settlement (ISDS) tribunals are an example of the first model. Since investment arbitrators are in competition with one another,Footnote ¹⁰ many of them have created more or less stable legal teams to help them carry out their duties as efficiently as possible. Depending on the affiliation of each arbitrator, these teams may be drafted from specialized law firms, the secretariats of arbitral institutions (e.g., the Permanent Court of Arbitration), or the junior ranks of academia. A tribunal assistant is usually picked by and operates under the close supervision of the presiding arbitrator, who is in charge of coordinating the proceedings. If the parties agree, the assistant can be formally appointed as secretary of the tribunal and tasked with reviewing submissions and evidence, researching factual or legal issues, preparing initial drafts of orders and awards, and providing support during hearings or deliberations.Footnote ¹¹ If the parties do not agree to the appointment, the arbitrators should in principle carry out all those tasks themselves. However, in practice, they sometimes still resort to “ghost” assistants without disclosing their role to the parties. In all cases, the duties of the tribunal assistant complement those of the relevant arbitral institution: the assistant takes care of substantive legal matters, while the institution's staff handles administrative work like the formatting of documents and correspondence with the parties.

As an example of the second model, the Registry of the European Court of Human Rights (ECtHR) is an intricate bureaucracy comprising almost three hundred lawyers, in keeping with the Court's massive caseload. The five judicial Sections of the Court are aided by some thirty case-processing divisions, each handling applications originating in specific member states.Footnote ¹² A division's staff is divided into temporary and permanent legal officers who help judges decide on the admissibility and the merits of disputes, respectively. Meanwhile, the Jurisconsult and his team assist the Court's highest instance, called Grand Chamber. Tasked with “ensuring the quality and consistency of . . . case-law,”Footnote ¹³ the Jurisconsult can highlight discrepancies in jurisprudence, address recommendations to judges, and even request the stay of Section proceedings pending a Grand Chamber ruling on overlapping issues. Despite a much lighter docket, the Inter-American Court of Human Rights (IACtHR) works in similar ways. Its Secretariat, comprising around sixty lawyers, is divided into eight teams, who conduct research and prepare drafts for the seven judges on the Court.Footnote ¹⁴

The International Court of Justice (ICJ) falls in between the two models. Up to the 1990s, the Court relied exclusively on the legal support of its Registry, whose Department of Legal Matters, acting collegially, carried out research and drafting tasks for the bench.Footnote ¹⁵ The department's monopoly ended in the early 2000s, with the introduction of a system of clerks assigned to individual judges. University clerks are selected among promising law school graduates and serve for ten months at the expense of their home universities. Associate legal officers (or simply “clerks”) are recruited through UN job advertisements and serve for up to four years. Albeit formally affiliated with the Department of Legal Matters, all clerks report solely to the judges to whom they are assigned and sit with them in the annex of the Peace Palace. Hence, the ICJ's current functioning sees the coexistence of—and possibly competition between—a permanent collegial bureaucracy and temporary personal legal assistants.

As for the WTO, it is true that the Secretariat operates largely as an “unidentified collective.”Footnote ¹⁶ However, the structure of the WTO's legal bureaucracy was not always meant to look like this. In the early days of the Appellate Body (AB) Secretariat, it was suggested that every AB member should have a personal clerk.Footnote ¹⁷ Eventually, the suggestion was scrapped in favor of Secretariat teams assisting the whole bench. Allegedly, the Multi-Party Interim Appeal Arbitration Arrangement, designed to replace ordinary appellate proceedings, follows a similar blueprint, with a handful of Secretariat lawyers reporting to arbitrators. These seemingly innocuous organizational choices can, in fact, affect the practices, professional allegiances, and power dynamics of the WTO judiciary.

Indeed, as this overview suggests, the institutional arrangements under which judicial bureaucrats operate have a major bearing on their role and influence. Under the ad hoc/clerk model, adjudicators who receive individual legal support may be better positioned to tailor the scope and nature of that support to their specific needs. Their assistants, whose appointment and terms of service are personally tied to those of single judges, may prove more deferential to their superiors and less inclined to steal the show. Conversely, under the collective/secretariat model, the court's bureaucracy may more easily develop its own institutional agenda, thus wielding greater power on the conduct of proceedings, the standardization of judicial practices, and the entrenchment of shared assumptions and dispositions. Thanks to their long-term tenure, collegial bureaucrats can master the intricacies of jurisprudence to a degree that rivals that of judges.

Either way, the principal-agent issues arising from the interplay of adjudicators and legal assistants are not unique to the WTO but pervade the whole spectrum of international courts. For Pauwelyn and Pelc, these issues come “at a high price to external legitimacy,” that is, the perception of judicial institutions by domestic constituencies and public opinion.Footnote ¹⁸ This concern may be overblown, for principal-agent dynamics are found in all governance systems. For instance, voters know that members of congress do not personally write—and seldom read—the bills that shape national life, but this knowledge does not necessarily undermine public trust in lawmaking bodies.Footnote ¹⁹ Yet, the point remains that the internal division of labor between international judges and legal bureaucrats deserves further analysis, as it is capable of “totally redefin[ing]” the official authority of international courts by way of “unwritten practice.”Footnote ²⁰

Expertise, Capital, and Authority

The second factor bearing on the impact of international judicial bureaucracies concerns the distribution of expertise and authority between the bureaucracy and the bench. Ostensibly, judges and their assistants are bound by a relationship of mutual trust and cooperation. In practice, however, their interactions often entail a silent confrontation for control over proceedings and the definition of judicial outcomes. Judges and bureaucrats deploy various “species of power” or “capital”Footnote ²¹ to gain the upper hand. Judicial capital stems primarily from symbolic authority, that is, the official power vested in judges to interpret and apply international norms in order to resolve cases. As the most visible actors in the process, judges are expected to project an image of impartiality, fairness, and responsiveness to the needs of the parties and external constituencies. Bureaucrats, by contrast, draw capital from what Weber described as “technical superiority”—“[p]recision, speed, unambiguity, knowledge of the files, continuity, discretion,” etc.Footnote ²² Their invisibility shields them from external contestation and perpetuates their ability to exert influence behind the scenes.

This competition marks the interplay between the judicial and the bureaucratic team. The amount of each team's capital determines its “relative force in the game” and “the moves” it makes.Footnote ²³ Given their subordinate position, judicial assistants must show a measure of deference and flattery, speak only when given the floor, and avoid gestures that may betray impatience or contempt. At the same time, their command of practice and precedent, their mastery of the record and, often, their long-term service at the court make them a force to be reckoned with.

Take, for instance, the legal advice that bureaucrats provide to the adjudicators. In this regard, the “issues papers” circulated by the WTO SecretariatFootnote ²⁴ are by no means unique. Some ICJ judges regularly rely on clerks when preparing their “notes”—that is, written pieces that express each judge's “views on the case.”Footnote ²⁵ Likewise, ECtHR Registry and IACtHR Secretariat lawyers work together with judge-rapporteurs toward the preparation of internal drafts that contain a preliminary factual and legal analysis of each dispute.Footnote ²⁶ Once ready, the drafts are submitted to the whole judicial formation for deliberation. Arbitral assistants, too, are often asked by tribunal presidents to write internal memoranda that summarize the litigants’ arguments, list the issues to be resolved, identify relevant precedents, and provide an initial assessment of the case.Footnote ²⁷

In their capacity as consiglieri, bureaucrats play a pivotal role in the resolution of disputes. By pre-digesting the files, selecting the salient points of fact and law, compiling jurisprudence, and suggesting potential solutions, they delimit the decision horizon of adjudicators and narrow the range of possible outcomes. The pervasiveness of bureaucratic advice may be inversely proportional to the technical competence of the judges. Here too, WTO “diplomat-panelists”Footnote ²⁸ are nothing new. Some judges sitting on the ECtHR are leading legal experts, while others may be less skillful;Footnote ²⁹ some ICJ judges are more diligent, experienced, or fluent in the Court's working languages than others;Footnote ³⁰ etc. Also, personalities matter. A resolute, hands-on adjudicator may be better equipped to take ownership of their work, whereas a more insecure one may be readier to delegate. Finally, the seniority of bureaucrats may affect the extent to which adjudicators follow their advice. For instance, it is likelier for an ECtHR section judge to heed the Jurisconsult's recommendations than for an ICJ judge to accede to the views of a newly recruited clerk.

Similar considerations apply to the drafting of judgments and awards. The “choice of words”Footnote ³¹ to convey a decision does not result from abstract legal reasoning, but from a material “struggle between professionals possessing unequal technical skills and social influence.”Footnote ³² The bench and the bureaucracy deploy their relative capital to vie for control of the court's “pen.” In some places, like the ECtHR and the WTO, the pen is firmly in the hands of registry and secretariat lawyers, who are in charge of both early drafts and subsequent revisions. In other institutions, like the ICJ and ISDS tribunals, the drafting effort is more evenly divided between adjudicators and their assistants, with continuous exchanges between the two. In all cases, the writing of international judgments does not respond to the overarching rationality of a single “author,” but is a collective and labor-intensive process involving a plurality of voices.

Retracing these internal struggles is not easy: the conclusory, syllogistic texts of decisions are meant to obscure the communications, hesitations, and competition that led to their formation. Some tell-tale indicators, however, can be spotted by a keen eye. Dull, technocratic writing may reveal the predominant role of the bureaucracy in the drafting process, while “stronger, livelier language”Footnote ³³ is more easily attributable to the bench; abridged or cryptic reasoning may signal deep-seated disagreements between adjudicators and their assistants; footnotes that contradict the main text may reflect frictions among drafters; and so on. Such minor discrepancies, non sequiturs, and logical leaps may appear insignificant, but in fact capture the essence of international judicial writing.