In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc describe, in rich detail, the pervasive involvement of the World Trade Organization (WTO) Secretariat in the resolution of trade disputes.1 The authors conclude, rather emphatically, that the Secretariat “exerts more influence over dispute settlement proceedings than the staff of any comparable . . . tribunal.”2 In my view, this conclusion is somewhat misleading, as it portrays the WTO as “exceptional” or “sui generis”3 among international courts. In fact, the invisible army of legal bureaucrats (clerks, registry and secretariat lawyers, arbitral assistants, etc.) plays a “critically important”4 part across the whole field of international adjudication. What is missing is a comparative analysis of the power those bureaucrats wield in different judicial regimes. In this Essay, I outline a basic framework for the comparison, focusing on two main factors: first, the organizational and contractual arrangements that govern the relationship of international judges and bureaucrats; second, the relative distribution of expertise and capital between the two.

In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc make a novel and compelling contribution to our understanding of the secretariat of the World Trade Organization (WTO). Firmly grounded in principal-agent theory, their analysis nonetheless resonates with—and thereby suggests some advantages in pursuing—other, complementary approaches that probe the complex inner lives of the secretariats of international organizations. Two central themes in the article, one explicit and the other implicit, provide especially useful entry points for comparison and linkages with these other approaches. In exploring these themes, this Essay aims to build on Pauwelyn and Pelc's insightful work to encourage more critical engagement with the governance dynamics and effects of international secretariats.

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement”1 through a comparative analysis of the role of the Secretariat within the African Court.2 Despite the growing jurisprudence and influence of Africa's international courts, they continue to be neglected by mainstream scholarship of international courts and tribunals. This is evident in Pauwelyn and Pelc's article, which does not refer to any of Africa's seven international courts and tribunals. For that matter, the article makes no reference to any international tribunal outside Europe or the United States.3 Our analysis illustrates the fact that the influence of the African Court's Registry and Legal Division (Registry) in the process for dispute settlement is not as significant and concerning as that of the WTO Secretariat. As such, the influence of the Registry on the outcome of a case is significantly limited and does not raise any legitimacy crisis like the WTO. We attribute this disparity to the operational and structural disparities between the African Court and the WTO. In the following paragraphs, we examine each of the factors that Pauwelyn and Pelc raise concerning the influence of the WTO staff in WTO panel and Appellate Body proceedings4 in the context of the functions of the African Court Registry.

In “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,”1 Joost Pauwelyn and Krzysztof Pelc argue that the Secretariat of the World Trade Organization (WTO Secretariat) has more influence over dispute resolution than the staff of any comparable tribunal. This influence is the result of the institutional design of the WTO, but also of unexpected factors that extended the mandate of the WTO Secretariat beyond what was originally conceived. The authors claim that this influence has brought benefits but has also raised questions of legitimacy and accountability. It has also had unintended––and not necessarily positive––legal effects. In this Essay, I offer a comparative view of the Secretariat of the Inter-American Court of Human Rights (the IACtHR Secretariat). I first wish to complement Pauwelyn and Pelc's analysis and provide another point of reference to understand the degree of influence that the WTO Secretariat has over dispute resolution. Second, I wish to provide some comparative insights as to the benefits and challenges that come with the existence of a permanent Secretariat playing a pivotal role within international judicial or quasi-judicial systems.

In their article “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc recharacterize the World Trade Organization's Dispute Settlement System (DSS) as a sui generis administrative review system wherein the “Guardians of the System,” i.e., the Secretariat, no longer merely “assists” panels and the Appellate Body (AB) in their reports, but also exerts influence and control over adjudicators. For them “‘the guardians of the system’ may have contributed to the system's demise by the expansion of their influence.” This Essay attempts to illustrate that Pauwelyn and Pelc's fatalistic view of the DSS is overstated, by providing some comments into the practical functioning of the DSS. We argue that, first, the “guardians of the system” are also restrained by suitable accountability mechanisms in their functions relating to appointment and financial “oversight” of adjudicators. Second, while acknowledging that the Secretariat retains a much stronger institutional memory than adjudicators, we suggest that this asymmetry between the staff and adjudicators’ familiarity with World Trade Organization (WTO) law and policy is not as stark and irredeemable as painted by the authors. Rather, the Secretariat's contribution to consistency and predictability in institutional decisions is ultimately desirable. For governments who established and make use of the WTO dispute system, the balance between ensuring legal coherence and preventing over-judicialization is at the core of the DSS. The participation of diplomats as panelists and the simultaneous creation of an office of Legal Affairs within the Secretariat was intended to ensure consistency in resolution of the members’ disputes to preserve a rules-based system. Finally, we contend that there is a strong internal legitimacy to Secretariat roles.

What are secretariats for in international dispute settlement bodies? The question is implicit in much of what Joost Pauwelyn and Krzysztof Pelc have written in their important article, “Who Guards the ‘Guardians of the System?’ The Role of the Secretariat in WTO Dispute Settlement,” but is one that they do not ask outright.1 Pauwelyn and Pelc thoughtfully describe what the World Trade Organization (WTO) dispute settlement secretariat (WTO Secretariat) does as part of their call to determine what the WTO Secretariat is for. Asking what secretariats ought to be for advances the valuable work that has been done on these institutions with an eye to new secretariats that states are now constructing. This Essay makes two points. First, it argues that the work of the WTO Secretariat is typical of many international adjudicatory secretariats, especially those assisting with disputes over matters of international economic law. Seeing those similarities helps us understand how dispute settlement constituencies view the purpose of such secretariats: to carry out the activities highlighted by Pauwelyn and Pelc. Second, the essay picks up where Pauwelyn and Pelc left off and maintains that our collective attention ought to turn to newly envisioned and recently constructed trade dispute secretariats, and their substitutes. The authors provide a platform for examining what experimental designs of secretariats in upcoming trade agreements might look like, and, more important, what we think those secretariats are for.