1. The GATT as a Part of International Law

On several occasions, Frieder Roessler described the reserved attitude or disinterest towards law and lawyers which he experienced within the GATT Secretariat during the early years of his career.Footnote ³ The legal interpretation and application of GATT rules became more relevant over the decades that followed. This evolution coincided with the creation of the Office of Legal Affairs and its staff’s (among which was FriederFootnote ⁴) involvement in GATT disputes, by advising and assisting the dispute settlement panels, including in the drafting of their decisions.

Those developments were strongly supported by the United States at the time, which wanted the GATT, a legally binding international agreement, to be applied and enforced by involving legal experts and applying legal principles. This objective was not shared in equal measure by the European Economic Community, mainly because of the common agricultural policy it then operated.Footnote ⁵ Instead, it preferred the GATT to be a forum to settle disputes diplomatically, rather than legally.Footnote ⁶ It is to the European Economic Community’s credit that it finally accepted, in the early 1980s, an Office of Legal AffairsFootnote ⁷ and shifted its position, in the latter phase of the Uruguay Round (negotiations on dispute settlement), by 180 degrees towards strongly supporting a rules-based approach to adjudication.Footnote ⁸

The evolution that ensued in GATT dispute settlement from 1983 involved significant efforts of interpreting and applying the GATT rules in accordance with proper legal standards and of buttressing credibility before the GATT contracting parties, which demanded higher legal quality.Footnote ⁹ A key side effect was the better placement of the GATT, despite its sui generis features, into the family of international treaties and the international legal order. Frieder Roessler, not alone, but in an increasingly senior and influential position, played a central role in this civilizational achievement. Mark Koulen, a colleague of Frieder Roessler in the GATT Secretariat, competently wrote about ‘Frieder Roessler, an intellectual giant who will always be remembered for his contribution to the development of GATT legal theory and practice’.Footnote ¹⁰

Not everybody shared the favourable view that WTO Members, including, prominently, the United States and European Community, and a whole generation of international trade law practitioners and scholars held about the upgraded role of the law and lawyers in the process and outcomes of GATT and WTO dispute settlement. The former European Commission official and early GATT Secretariat official Paul Luyten (later) expressed the opposite view, stating that legal analysis and reasoning had been taken much too far.Footnote ¹¹ There is a legitimate argument that multi-year legal battles and the quest for the most accurate legal analysis are not always the best manner to resolve disputes. This often applies in family or neighbourly relations and can be true also for trade disputes. Hence, alternative methods of dispute resolution exist in the form of mediation, conciliation, or good offices (Article 5 of the WTO Dispute Settlement Understanding). Misgivings about the length of WTO adjudicative decisions are plausible, even if the causes of this phenomenon are more complex than observers sometimes think.

Less coherent is the proposition that a handful of trade diplomats could pertinently determine, without rigorously applying legal methods, whether a GATT contracting party or WTO Member has acted in conformity with or in breach of the GATT or WTO Agreement.Footnote ¹² Be that in 1955 or in 2025. Frieder Roessler described the underdeveloped legal approach of many GATT working parties and panels of the 1950s, 1960s, and early 1970s ‘essentially as conciliation procedures’.Footnote ¹³ While this term may not capture perfectly the early phase of GATT dispute settlement, a fact is that precisely the GATT contracting parties demanded the ensuing trend of juridification and higher legal quality.⁹

The renowned jurist Georges Abi-Saab, then member of the WTO Appellate Body, said at the 2007 WTO Public Forum that, despite decisive differences between international agreements and organizations (in several of which he had been a judge), an adjudicator can only act like a judge or not act like a judge; there is no halfway house. Similarly, one either applies the law (correctly) or does not apply the law; there is no halfway house. A conciliation, in which the law is considered, but without resolving the legal questions fully, may have served the GATT in an early period and on market access issues, but it was not sustainable.Footnote ¹⁴ This holds certainly in relation to national regulations protecting health or the environment. Legal rigour is a necessity, not a luxury, for answering reliably the question of whether a GATT contracting party or WTO Member – in most cases a sovereign State and in all cases an international legal subject – has breached international law.Footnote ¹⁵ For a losing party to remove the breach in its domestic system, a persuasive legal reasoning can be paramount,Footnote ¹⁶ not just the ruling’s binding nature. Frieder Roessler and his colleagues contributed significantly to the attainment and maintenance of quality standards worthy of the underlying importance, of the parties and interests involved, and of the rule of law in international relations.

In 2024/2025, one can say that the world needs more compliance, not less compliance, with international law. If States and other subjects of international law are to comply with their international obligations, they need sufficient knowledge and understanding of what those obligations are. This is why the contribution which Frieder Roessler made to the development of GATT and WTO law was so valuable, also in the years following his career in the GATT and WTO, when he first taught students, then advised and represented developing countries, from 2001 onwards at the helm of the Advisory Centre on WTO Law.

2. Experiences with Frieder Roessler

I first met Frieder in June 2000 at a conference at Harvard’s Kennedy School of Government where I was a student. On the eve of a WTO job interview that subsequently brought me to Geneva, I spoke with Frieder by telephone, where he offered his advice – different from what I had expected given his career. The third encounter was Frieder’s appearance in an oral hearing before the Appellate Body, where he spoke freely instead of reading out a statement prepared in writing. He took a step back from the factual and legal minutiae of the case, and commented on the bigger picture question of whether the challenged measure could possibly be legal. A unique and courageous move, sacrificing details and precision for the sake of a stronger, simpler message.

In 2001, the Advisory Centre on WTO Law conducted its first recruitment of three staff lawyers after having appointed Frieder as executive director. Applications had to be sent to Otto Genee at the Dutch Mission, but Frieder reviewed them, including mine. He called me to explain that he faced objections to the idea of a small staff of four lawyers comprising a second German citizen. We maintained a loose, but friendly contact over the years that followed. Unforgettable was Frieder’s speech, like that of his predecessor and the speeches of his successors as Directors of the GATT and WTO Secretariat’s Legal Affairs Division, at the June 2012 conference on the 30th anniversary of that Division.Footnote ¹⁷ Some of the more telling elements of these speeches featured neither in the (well worth watching) video interviews recorded on that occasion with the former Directors nor in the great book published after the conference by Gabrielle Marceau,Footnote ¹⁸ a famous and influential WTO lawyer, whom Frieder Roessler had recruited to the Legal Affairs Division towards the end of the GATT.

3. Frieder Roessler’s Commitment and Values, Convictions, and Skills

As many have rightly said, paying tribute to Frieder Roessler, he was a passionate international civil servant who devoted his career to international cooperation, economic integration, and the international rule of law. He believed in those values for the sake of prosperity, justice, and peace in the world, a part of which he had seen in shatters as a small child at the end of the Second World War.

There is another angle to Frieder’s personality and character that is no less important, in that same perspective of preventing injustice, repression and aggression: Frieder had a backbone. He was not the type who blows with the wind to avoid controversy or to best promote his career. Frieder Roessler defended his convictions and stood by them. Among the well-recorded examples are: (i) Frieder’s views, after the WTO rulings to the contrary, on the priority of decisions, even if not made, in the Committees on Balance-of-Payments Restrictions or Regional Trade Agreements over WTO adjudicators’ jurisdiction for legal findings under Articles XVIII:B and XXIV of the GATT 1994;Footnote ¹⁹ (ii) Frieder’s faithful attachment to the ‘aims-and-effects’ theory for the GATT’s non-discrimination obligations,Footnote ²⁰ espoused by two panels during his tenure at the GATT (US–Malt Beverages Footnote ²¹ and US–Auto Taxes Footnote ²²), also after WTO panels and the Appellate Body rejected that theory in Japan–Alcohol II Footnote ²³ and EC–Bananas III;Footnote ²⁴ (iii) the thorny question of possible ‘retroactive’ implementation obligations after GATT and WTO dispute settlement rulings (e.g. repayment of subsidies, reimbursement of import duties found illegal), on which Frieder set out his views again in 2007.Footnote ²⁵ This was among the prominent and divisive issues during Frieder’s tenure. Two GATT panel decisions recommending the reimbursement of trade remedy dutiesFootnote ²⁶ arguably contributedFootnote ²⁷ to what Frieder admitted was one of his less satisfactory professional experiences: the July 1992 decision in the GATT Secretariat to reallocate the primary responsibility for legal assistance to panels in the areas of dumping and subsidies from the Legal Affairs Division (which however remained involved during Frieder’s tenure) to the Rules Division.Footnote ²⁸

Most remarkable in Frieder’s brilliance as a lawyer – independently of the roles he held – was the quality, rigour, clarity, and simplicity of his legal analysis, blended into his familiarity with governmental regulation of international trade. These skills enabled Frieder to build sharp and powerful arguments that could be eye-opening and persuasive. Frieder repeatedly covered new ground and provided insights where WTO lawyers had never ventured or not seen clearly.

For instance, in 1975, Frieder Roessler published a foundational article on the GATT law of export restrictions under the title ‘GATT and Access to Supplies’, in which he convincingly countered John Jackson’s view in his 1969 treatise that Article II of the GATT 1994 cannot make export duty commitments binding.Footnote ²⁹ Frieder relied on the word ‘commerce’ as opposed to ‘imports’ in Article II:1(a), pointing also to GATT negotiating history and little known export duty commitments existing in schedules since the late 1940s.Footnote ³⁰

That article and the insights of 1975 remained foundational 30 years later (and also today) when practice and scholarship in this area advanced again.Footnote ³¹ They inspired a new legal model for export duty commitments in WTO accessions: in Russia’s case, unlike in previous accessions including China’s, export duty commitments were not merely inscribed as obligations in the Accession Protocol (thus outside the GATT 1994 and without automatic applicability of GATT exceptions like Article XX), but were also made part of the GATT schedule in a new Part V.Footnote ³²

Around that time, I saw Frieder outside the WTO building and took the opportunity to tell him how seminal his 1975 article continued to be and to ask him if he agreed that Article XXIV:8(b) of the GATT 1994 required of free-trade areas the elimination also of export duties on substantially all trade. I added that I found this obvious already based on the text (‘duties’), but that it was controversial. Frieder replied ‘of course’, in his typical low-key manner, adding a powerful argument: if a free-trade area only needs to eliminate import duties, not export duties, then it need not liberalize anything, because all import duties could be kept, by transforming them into export duties levied by the other side (before, rather than after, goods cross the border). I added enthusiastically that the parties could complete the trick by handing over the collected duties. Frieder’s argument illustrated his legal mastery: it was clever and imaginative, simple and striking, rooted in an understanding of how trade and its regulation work. The situation was also illustrative of Frieder’s generosity in sharing his wisdom and his readiness to engage in stimulating legal discussions. This made Frieder an outstanding interlocutor, who will be greatly missed.

4. The Bigger Picture of How Things Fit Together Legally

A final quality of Frieder Roessler to mention is his supreme knowledge and understanding of overall legal architecture, legal connections and interrelationships. As Steve Charnovitz put it, Frieder ‘understood how the various elements of trade law fit together’.Footnote ³³

An example is the rights of action which the WTO dispute settlement system provides. In 1997, Frieder Roessler wrote a book chapter about the concept of nullification and impairment,Footnote ³⁴ in which he explained that concept, its history and purpose, and the role it plays (and does not play!) in violation disputes under the GATT 1994, the General Agreement on Trade in Services, and Part II of the WTO Agreement on Subsidies and Countervailing Measures. Frieder’s compelling explanation served me for writing for the WTO in 2003 the first edition of the WTO’s Handbook on the WTO Dispute Settlement System, in which ten pages explain ‘the legal basis for a dispute’.Footnote ³⁵ An upcoming article will elaborate on this, in defence of Frieder Roessler’s legacy and to demonstrate how much we can still learn from him.Footnote ³⁶

In 2012, I had an exchange with Frieder – this was sadly the last correspondence between us – in which we exchanged our shared views about legally questionable language in panel and Appellate Body reports in relation to actionable subsidies. Both Frieder and I were of the view that actionable subsidies are not rendered illegal by Article 5 of the Agreement on Subsidies and Countervailing Measures and that WTO adjudicators ought to pay more attention to this detail. This, too, will feature in the upcoming article.Footnote ³⁷ Attention to detail is another virtue, important if not essential for good lawyering, which Frieder had.

In so many ways, all the world’s international trade lawyers stand on the shoulders of Frieder Roessler. We can continue to learn from his knowledge, methods, values, and virtues. Frieder’s legacy, his contribution to the legal quality of dispute settlement decisions and the historic background teach us something for the current period: where the Appellate Body cannot contribute to legal quality, where parties must decide whether to accept a WTO panel report, and where the risk of political pressure is greater, a high legal quality of panel reports protects the credibility, integrity, and independence of adjudication in the WTO.

May Frieder’s soul rest in peace, but his wisdom live on forever.