A Conversation with Joseph Conti

BY ANDREA LAM

NORTON SOCIOLOGY

Q: In your book Between Law and Diplomacy: The Social Contexts of Disputing at the World Trade Organization (Stanford University Press, 2011), you discuss the tension between law and diplomacy as manifested in the WTOs dispute processes. What patterns or models did you discover? My book takes as its subject matter the complex relationship between law and diplomacy in the dispute settlement processes of the World Trade Organization (WTO). One of the novel things about the WTO is how, over the course of the last 60 or so years, it has adopted legal concepts and practices for settling disputes between member nations. Prior to the GATT/WTO trade disputes were largely diplomatic and military affairs. With the gradual introduction of law in the international trading system, the WTO has in some ways come to resemble what you might think of as a domestic court: there are people that play the role of the judge, adversarial parties that make arguments and introduce evidence. At the same time, law has not completely replaced diplomacy and power politics. The parties are always encouraged to settle, there are formal stages in the disputing process designed to achieve conciliation. But, most importantly, at the end of the disputing where the questions turn to how to get a WTO non-compliant party to change its trade practices, the legal features of disputing almost entirely reverts to diplomacy. For these reasons, the WTO disputing process is quasi-juridical. It is best understood as a complex mix of diplomacy and legal work, hence the title of my book. The incorporation of legal concepts and practices into the WTO regime began well prior to the inauguration of the WTO at the end of the Uruguay Round negotiations in the mid 1990s. The turn to legal concepts and practices of the trading system, was the result of an ad hoc and iterative negotiation of solutions for specific problems encountered in the global trading system. This process began almost immediately after the formation of the General Agreement on Tariffs and Trade (GATT) in 1948. Such problems included how to go about settling a dispute and what the legal criteria was for initiating a dispute. The practices of law over a half a century, in the case of trade, lead to its formal encoding in the rules of the WTO. In interviews with trade lawyers from WTO country delegations, I found that there are multiple motives employed in the decision to initiate a dispute. Most commentators assume that countries engage in a cost-benefit calculation when deciding whether to initiate a dispute. One of the problems with that view, other than it had never been empirically investigated, was that it is often the case that the true cost of WTO-incompliant measures are not known prior to engaging in dispute. Another problem is that these disputes are not purely legal or economic but take place in a political and social context. For instance, a potential complainant will weigh whether a dispute will help them achieve some a broader set of foreign policy goals. The Brazilian dispute with the U.S. over its cotton subsidies was identified as a good case in part because it helped to raise the international profile of Brazil, to secure its leadership position of the G-20 as well as to communicate to a global audience the problems caused by U.S. subsidies for farmers in the developing world. Disputes have symbolic and communicative dimensions beyond the economic and legal. Trade delegates also consider the risks of losing at the WTO, both in terms of personal embarrassment and in domestic political costs. What I call a good case is a dispute that maximizes many of these symbolic, communicative, legal, and economic motives.

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I also found that repeat players tend to develop specific and specialized forms of expertise that provide them with advantages over infrequent players in shaping the processes of disputing. Together, these findings show how the WTO is a complex social forum that is reproduced through the activities of many people engaged in WTO disputing for a variety of reasons, including personal, professional, and organization rationales. The international isnt anarchic or defined solely by material power relations between states. Instead, it is a place for symbolic struggles and inhabited by people making exercising agency under constrained conditions. I think this is an example of how sociolegal research developed in the domestic contexts can be fruitfully adapted to new kinds of research subjects related to globalization. Q: You also discuss how law mediates pre-existing international power dynamics. Can you talk a bit about how this happens and what that means for the world political economy? By introducing legal ideas and processes into the management of the global trading system, the WTO has shifted the terms of international struggles and contests over trade between economic competitors into the language of the law. This is not to say, as many of the proponents of the WTO argue, that power has been banished from the trading system. That is far from the case. The so-called playing field of international trade has not been leveled, despite the pervasive rhetoric to the contrary. What it does mean is that countries that are able to invest in the mastery of WTO law, which is no small task, are able to join the fights over the meaning and application of the rules of the trading system. Some countries, such as the United States, have tremendous advantages in this system because of what Greg Shaffer has called its comparative advantage in lawyering. The WTO legal system is increasingly adversarial, fact-intensive, and takes a case-by-case approach, which is similar to how law is practiced in the United States. Moreover, the U.S. and Europe are home to the worlds largest private law firms, which do the bulk of private WTO legal work. These capacities to use the law still operate as a form of international inequality specific to the WTO. At the same time, because many of the struggles of trade have been shifted into the legal field, an opening has been created for other countries to take advantage of its rules. Brazil is a primary example of a developing country investing in the building of legal capacity and deploying it to significant effect in the WTO and, to the expense of the worlds largest trading powers, the U.S. and E.U. Most developing countries and even some industrialized countries do not have the ability to build legal capacity for the WTO. because they lack the public funds to dedicate to it, or they dont have the right kind of specialized legal training in their universities or there isnt enough trade work to produce a private market in trade lawyers, or other reasons. There are still ways for such countries to take part in disputing, such as hiring a private law firm based in Washington DC or, if they qualify, employing the services of the Advisory Centre on WTO Law (ACWL), which is a kind of legal assistance service for developing country members of the WTO. But private lawyers tend to be very expensive and neither the ACWL nor private lawyers lead to the sustained ability to assert their interests or affect the development of WTO law over time. So on the one hand, the quasi-juridification of trade merely replicates the old power inequalities in the international system of states through the requirements for effective participation. But, on the other hand, those power relations are reconfigured and create a new type dynamic whereby power is filtered through legal practices. One interview subject, who is a strong proponent of the WTO, put it like this: in the old days, if his country, a relatively small country in terms of the volume and diversity of their international trade, had a problem with trade with the United States, they would meet with a lower level bureaucrat to discuss it in a windowless room in the State Department in Washington. With the advent of the WTO, his country had a platform for expressing their grievance and even if the possibility of forcing the U.S. to change its trading practices remained remote. Q: One of the major themes of your research is the complex nature of the interactions between law and society. What methods do you use to study the effects that each has on the other? Rather than conceptualizing law and society as in opposition, as though they were distinct phenomena, I think a better way to think about the kind of work I do might be the phrase law in society. This is a way of saying that law takes place in social contexts. If we want to understand better how the law works, we need to place it in its social contexts and see how it works in practice.; in other words, as we say here at the University of Wisconsin, law in action. In terms of methods, I think that they must be chosen to fit the type of research questions that are being pursued. In my work, I have tried to select the best methods for answering questions in a

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reliable and valid way as possible. This has lead me to use both quantitative and qualitative techniques, including interviews, surveys, and statistical analyses of quantitative datasets. In my research on the World Trade Organization, I relied on interviews and a basic event history analysis of a dataset related to the disputes initiated before the WTO. In my view, these methods complement each other, allowing access to different dimensions of international trade law in action. For instance, by relying on statistical techniques I was able to demonstrate that countries that are serially engaged in disputes systematically affect the likelihood of a case proceeding through the WTOs process of disputing rather than falling out through a settlement or abandonment by one of the litigants. I found that in disputes where the complainant was the more experienced player, the dispute was likely to end prior to the first round of adjudication. And when the more experienced party was responding to claims made by another party, the dispute was more likely to proceed through the full disputing process. The statistical analysis, however, could not fully demonstrate why repeat players adopted the particular strategies that they did and it did not reveal why repeat participation could be the basis of an advantage in WTO litigation. So, I conducted a number of interviews to answer questions related to the motives for disputing as well as to learn more about the kinds of advantages that accrued to repeat players. For instance, interviewees were able to shed light on the kinds of expertise that is required for success in WTO litigation and is to a large degree derived through direct experience rather than formal training. They also shed light on how Repeat players cultivate a reputation as being litigious so as to stave off potential disputes and bring existing ones to earlier close. Q: Much of your research is focused on power and international trade, primarily in the context of the World Trade Organization. What are your thoughts on how the recent global economic crisis has affected the power structure of international trade? I think that the financial crisis has deepened the realization that economic might is shifting away from the United States and that there are a growing number of countries with the ability and desire to influence global governance. In fact, that the U.S. was the origins of the global slow-down and its economy has remained sluggish may be viewed as something of an opportunity by advanced developing countries to shape the agenda of global governance in ways they view as more advantageous. I think that the crisis has shown to many that the existing system of economic governance is weak and insufficient to manage the volatility of global markets. This shift in thinking can be seen in the longoverdue but cautious acceptance by IMF of the utility of capital controls for countries trying to manage financial instability. A shift in power relations is also evident in the prominence of Brazil and the G-20 at the WTO, as well as the influence of China, Brazil and India at the IMF, and other international forums. I think that the sustained attack on U.S. and European agricultural policies is also evidence of changing power relations. It is remarkable that U.S. and European support for their agriculture markets has stayed at the top of the international trade agenda for so long. The rules of the global trading system for agriculture have long been skewed in favor of producers in wealthy countries. But it is only the last decade or so that developing countries have been able to mount an effort to change that situation. The failure of the Doha round negotiations is indicative of the inability of the U.S. and E.U. to extend their trade agenda while continuing to force developing countries to accept a trade regime hostile to concerns for economic and social development. The U.S. is pushing to extend WTO rules for the liberalization of services, such as finance, but the G-20 are resisting that until changes are made in how the WTO handles developing country interests, such as in agriculture. I think many countries are deepening their trade ties with China as it is increasingly seen as more dynamic and productive than the United States in addition to establishing more general connections within the global South. One of the arguments that I raise in my book is that the WTO, because of how it partially substitutes legal capacity and expertise for diplomacy and geo politics in the management of international trade disputes, may be well suited for a multi-polar global trading system. This is because other countries can invest in the mastery of WTO law and engage in the continuing battles to define what the WTO is and what it should do. In the end, I may be proved wrong about this and the shrinking power of the U.S. may result in a collapse of the WTO trading system and the rise of a different, or multiple different trade regimes. But, I dont think so. As developing countries industrialize and engage more in international trade, they will be more deeply invested in maintaining an orderly and unified trading system.

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RECOMMENDED RESOURCES
Conti, Joseph A. Between Law and Diplomacy: The Social Contexts of Disputing at the World Trade Organization. Forthcoming, Stanford University Press. 2011. Conti, Joseph A. 2010. Learning to Dispute: Repeat Participation, Expertise, and Reputation at the World Trade Organization. Law & Social Inquiry 35:1, 625-62. Conti, Joseph A. Producing Legitimacy at the World Trade Organization: the Role of Expertise and Legal Capacity. Socio-Economic Review 8 (1):131-155.

Q: What led you to study the WTO specifically? After college, I was trying to figure out what to do with my self. I was working various jobs and doing some volunteer work on the side with an advocacy group in Denver, where I grew up. This was in 1998 and 1999, which coincided with the planning for the protests of the WTO in Seattle, which occurred in September 1999. As a part of that planning, I found myself writing essays about the WTO, about which I knew very little. That bothered me. Here was this big, important international organization that had prompted thousands of people from around the country and the world to come out into the streets and to try and shut it down. But, I knew little about how it worked or the kinds of power relationships that supported it. I needed to know more about what kind of power it held and what that meant for democratic control over the economy. I started graduate school the next year and realized that there were very few sociologists looking closely at the WTO and how it operated in practice. So I guess I saw an opening there and decided to write my masters thesis on which countries win and lose WTO disputes. Ive been working on it ever since. Q: What are your thoughts on how law affects contemporary globalization? This is a very big question. One point is that at the center of the global economy are symbolic struggles over the meaning and application of the law. The international trade law field asserts symbolic power to arbitrate economic relationships between countries, and by extension the producers within those countries. This raises questions for me about the trajectory of law in global affairs. Legal scholars have been documenting the proliferation of international courts and tribunals. Different scholars have different accounts of how many there are, but there has been a pretty clear trend, particularly after the fall of the Soviet Union for more and more domains of international economics and politics to come under the supervision of some kind of legal structure. So one question is what explains this trend towards greater reliance on law international affairs, and another question is, why law rather than some other mode for organizing social and economic relations? These questions have me wondering whether it is appropriate to think about international juridification as a process of rationalization and pacification of international politics through legal-rational modes of domination and bureaucratization. My hunch is that the cumulative effect of these transformations is that the Westphalian system is undergoing a massive transformation that is quite out of the full control of any given state, even a powerful one like the United States. Here, the juridification of international affairs is cumulative, driven by the legitimacy of legal modes of order and not reliant upon, but working through and beyond, the delegation of state authority to international organizations. Q: Are there other sociologists, living or dead, whom you particularly admire? If so, what about them or their work do you find inspiring? I find that Webers sociology of law to be a recurrent source for thinking about law and economics in the context of globalization and I have embraced in my work his interpretative approach to placing social actions in their social contexts. At the same time, some of my favorite sociologists work in areas removed from globalization or law. For instance, C. Wright Mills Power Elite was an important inspiration for me in terms of thinking about how the structures of power are populated by certain types of people, who like everyone else are constrained by their social location, but unlike everyone else, their institutional position provides them with disproportionate influence. As something of a hobby I have spent a fair amount of time trying to see if there was any material connection between Millss book and Eisenhowers famous speech about the military-industrial complex. My wife and I paid a visit to the Eisenhower museum in Abilene, KS to talk to an archivist. Unfortunately, there is no record of Eisenhower having ever read Millss book, though the publisher did send a copy to the White House. Perhaps a more likely answer is that Mills was situated in a intellectual conversation about the nature of power and so that certain ideas about the institutional foundations of elite power were in circulation at the time and picked up my Eisenhowers speech writers. This Interview has been condensed and edited. JOSEPH CONTI is Assistant Professor of Law and Sociology at the University of Wisconsin Madison.

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