The signing of the Agreement Establishing the Advisory Centre on WTO Law (ACWL) was the most positive outcome to occur during WTO's Seattle Ministerial Conference in 1999. After two years of preparatory work, the ACWL then began operations in 2001.
At the time, the ACWL was very much an experiment in providing legal aid at an international level. The momentum to establish the ACWL clearly revealed that there was significant demand for legal aid for developing and least-developed countries to enable them to take advantage of the opportunities of the rules-based multilateral trading system. The ACWL was, therefore, an idea ‘whose time had come’.Footnote 1
At the time, and certainly also in retrospect, Frieder Roessler was the obvious choice to be the first Executive Director of this fledgling organization. Others have written about Frieder's career in the GATT and WTO in this volume. I will focus on how Frieder was uniquely suited to guiding the ACWL through its initial years and how his work at the ACWL was a natural culmination of his distinguished career.
After retiring from the GATT and WTO, Frieder spent a couple years in Washington, DC, teaching at Georgetown University Law School. He then returned to his home in the Geneva area and was doing some consulting work and a lot of sailing when he was approached and asked to become involved in the nascent ACWL. Frieder hesitated. He appreciated the challenges that the new organization would face. Would developing countries actually use the new organization? Would there be enough donor countries that would be willing to support the creation of a level playing field in the WTO dispute settlement system, even though doing so might result in more cases against their own interests? Would these donor countries attempt to use the power of the purse to influence the new organization to their own ends? Faced with these challenges, ‘should I not retire’, Frieder wondered, ‘and sail with my boat to the Antilles rather than end my career with an attempt to steer a novel institution to Utopia?’.Footnote 2
Fortunately, despite his misgivings, Frieder accepted the challenge. At the ceremony to establish the ACWL, the WTO Director General at the time, Mike Moore, expressed his gratitude that Frieder, ‘after a distinguished career as GATT and WTO legal adviser, and at an age at which he would be entitled to indulge in his favourite pastime, ocean sailing, [would take it] upon himself, as expert helmsman, to bring the Centre up to speed as a top-quality legal aid institution for international economic law’.Footnote 3 It was the ACWL's good fortune, and that of the WTO legal system, that Frieder was willing to sacrifice his plans to take on the challenge of setting up the ACWL and serving as its first Executive Director.
While this new challenge inevitably distracted Frieder from his previous retirement plans and his sailing, it was a perfect fit with his core beliefs in law and in international relations. In addition to Frieder's economic policies, about which Ernst Ulrich Petersmann has written both in this issue and elsewhere,Footnote 4 Frieder was also highly motivated by his childhood experiences at the end and in the aftermath of World War II. These experiences drove his belief in an international legal order that would prevent a recurrence of the horrors of his childhood and in which, in the words of Montesquieu, trade among nations would lead to peace:
In February 1945, when I was six years old, I saw the bombardment of Dresden, and in 1946 my parents left all their belongings and fled with their sons from the part of Germany occupied by the Soviet Union to a city in the then Federal Republic of Germany that had been almost completely destroyed. All this left a deep impression on me. Helping realize the objectives of an organization that made war less likely therefore seemed to me to be eminently meaningful.Footnote 5
Thus, Frieder was motivated by the political benefits of the multilateral system as much as by the economic. For him, the GATT, the WTO, and indeed the entire multilateral system were as much a political as an economic project. In 2018, a book (Globalists: The End of Empire and the Birth of Neoliberalism,Footnote 6 by Quinn Slobodian) appeared that, in Frieder's view, incorrectly described both the GATT/WTO as an institution and him (and GATT colleagues such as Jan Tumlir and Ernst Ulrich Petersmann) personally as driven primarily by a desire to enshrine free market principles at the expense of social justice and redistribution. Frieder felt constrained to interrupt his retirement – and his sailing – to pen a comment on the book that pushed back at this characterization of both the GATT/WTO as an institution and of his own positions. Frieder emphasized that the:
WTO did not contribute to the vast expansion of world trade and the reduction of poverty by obliging its Members to sacrifice social justice on the altar of the world market but by offering them a legal framework they could use to overcome the domestic political obstacles to the adoption of policies furthering the national welfare … As a matter of principle, one can therefore very well be convinced that governments should intervene in the economy to redistribute income and still be in favour of markets open to imports.Footnote 7
Frieder used the example of the United States' Reciprocal Trade Agreements Act in the 1930s, which gave the US President the power to negotiate reductions in the Smoot–Hawley tariffs free of the influence of the political interests that originally gave rise to them. Thus, the purpose was not to enshrine any domestic economic policies, but merely to facilitate the negotiation and the management of international trade relations in a manner that would be conducive to Montesquieu's vision.
Slobodian also misunderstood Frieder's view of the importance of a rules-based order and equality before the law, writing that Frieder saw ‘the Global South as the chief obstacle to a more rational organization of the world trading system’.Footnote 8 This quote related to the negotiating difficulties in the GATT in the 1970s, rather than any political bias on Frieder's part (as most readers will be aware, the consensus principle in the WTO means that each Member is a potential ‘obstacle’). In fact, as his work at the ACWL showed, Frieder was a firm believer that developing countries should enjoy an ‘equality of arms’ in the WTO: ‘My personal experience is that, in DSU proceedings, developing countries wish to face developed countries as equals’. For this reason also, Frieder saw the value of the ACWL: ‘The Advisory Centre is in my view an essential part of the WTO dispute settlement system because it gives that system legitimacy by offering to WTO Members lacking legal expertise and resources the possibility to defend their rights as effectively as other Members.’Footnote 9
In the passage quoted above regarding his childhood, Frieder was referring, of course, to the GATT, not the ACWL. Given the nature of the ACWL's role in furthering the universality of the rules-based WTO system however, it is hardly any surprise that Frieder was attracted to the challenge of getting the ACWL established as a key part of that system. I believe that Frieder saw in the ACWL an excellent way of pursuing his goals and that he derived considerable satisfaction from doing so.
Establishing the ACWL as a going concern was no easy task. The ACWL's status as an international organization meant it was not just a question of setting up a small office (originally intended to have a staff of 3–5 lawyers). Considerable thought and work had to be put into the ACWL's diplomatic status, its headquarters agreement with the Swiss authorities, and other formalities. Here, Frieder's experience in structuring the legal aspects of the transition from the GATT to the WTO was a great resource for the ACWL.
Moreover, the ACWL would be defending the interests of developing and least developed countries, often against the developed countries that would fund its operations. It was necessary, therefore, to ensure that the ACWL was, and was seen to be, independent of the political power and influence of the developed countries that would assume most of the burden of financing its operations. Structurally, this was achieved by having the Executive Director report to an independent Management Board, rather than directly to the Member governments themselves. However, it was equally important that the first Executive Director would command universal respect for his independence and probity. Frieder, of course, was just such a person. His involvement gave immediate credibility to the ACWL as an independent centre that would serve the needs of its developing and least developed country users without any fear or favour.
Frieder's understanding of the workings of international institutions also enabled him to ensure the ACWL's credibility. He understood that to be accepted as a public good, the ACWL would have to stick scrupulously to its mandate to provide legal advice to developing and least-developed country governments. The ACWL would not have been able to develop its reputation as a centre of high quality and impartial legal advice had it strayed into the minefield of intergovernmental politics or had it been perceived as advancing positions or agendas of its own. Again, Frieder was the perfect person to ensure that the ACWL stuck completely to its mandate of providing purely legal advice. Frieder's emphasis on the importance of the ACWL staying within its mandate and not trying to pursue issues or activities that it could, but should not, do continues to drive the ACWL to this day.
Frieder's legal background was as an advisor, including to adjudicators on GATT/WTO panels, rather than as a litigator. This meant that switching to his role in the ACWL required Frieder to have the slightly different perspective of a litigator. But here again, Frieder's background and probity stood the ACWL in good stead. One of the fears at the time of the creation of the ACWL was that it might become a ‘flamethrower’ in the process, encouraging developing and least developed countries to pursue disputes that were unlikely to be fruitful or pursue aggressive litigation tactics that might be harmful to the system.
Neither of these was in Frieder's nature. Instead, Frieder's approach was to give his clearest and most frank possible advice, regardless of whether it was convenient, or what a government would have preferred to hear. Moreover, Frieder's experience, analytical skills, and standing meant that once governments received that advice on the likelihood of success of a potential dispute, they were unlikely to question it. Again, we still strive to follow this approach.
When I first started working with Frieder at the ACWL in 2004, I was struck by how independent and self-sufficient he was. He also expected – or perhaps assumed – that all of us lawyers would be equally independent and self-sufficient. This was quite liberating in that it meant we were all treated as peers, whose views on any given issue deserved equal consideration in the discussions as his own (even when they clearly did not!). It also meant that we were supported and given the freedom to pursue our professional interests, whether it was academic writing or teaching. All of us at the ACWL benefitted hugely from this type of trust and cooperation.
After he retired from the ACWL, for a time, Frieder continued to come to the office to provide some training on the history and core principles of WTO law to the participants in the ACWL's Secondment Programme for Government Lawyers. The young lawyers from around the world that participated in this Programme loved these sessions. For them, it was a unique opportunity to learn from someone whose name was virtually synonymous with WTO law. Many of these lawyers still speak fondly of the willingness with which Frieder gave his time, and his patience and interest in learning and debating their views and positions.
Frieder continued also to support the rules-based system and was a defender of the WTO dispute settlement system, even if he did not agree with all of its decisions. Generally, he considered that ‘the Appellate Body has carefully avoided interpretations of WTO agreements that would have prevented the attainment of legitimate regulatory objectives. The fear that the Appellate Body, as an organ of a trade organization, might systematically favour trade interests over legitimate non-trade interests in its interpretation of the WTO agreements has proven to be unfounded’.Footnote 10 As might be expected, though, Frieder was farsighted in his examination of its flaws. Frieder supported consistency in the rulings of the Appellate Body: ‘Members may often be able to implement a ruling against them only if they can be confident that the interpretation on which the ruling was based will be applied equally to rulings on similar measures taken by any of the other 160 Members’.Footnote 11 However, consistency should not be the sole guiding principle: ‘Given the extreme complexity of WTO law, it is often difficult to foresee all the legal consequences of an interpretation. A new case may for these reasons reveal that the application of an interpretation that offered a reasonable solution to one dispute would have unacceptable consequences in another’.Footnote 12 Frieder criticized the Appellate Body for a lack of clarity in instances in which, he felt, the Appellate Body had changed its jurisprudence without wanting to acknowledge that it had done so: ‘If the Appellate Body makes a change but does not clearly communicate that a new ruling replaces a different previous ruling, then panels and Members are sent conflicting normative signals because they do not know on which ruling they should base their expectations … The Appellate Body's lack of transparency in dealing with changes in jurisprudence consumes for these reasons more of the precious capital of predictability than necessary’.Footnote 13 In other words, Frieder did not think of predictability or the role of precedent as an absolute. It was more important to get the decision right and, if that required going back on a previous decision, to do so openly and clearly. Here, Frieder appeared to bridge whatever divide existed between civil and common law views of the world. It is a shame that his clarity and foresight are not available to help those currently negotiating the reform of the dispute settlement system.
Frieder's analytical approach and insights – discussed more thoroughly elsewhere in this volume – have been a beacon for all of us at the ACWL. When it began operations in 2001, the ACWL was a small office with a staff of two. Twenty years later, the ACWL has 13 lawyers and three administrative staff. It is no overstatement to say that the ACWL has succeeded beyond the expectations of its founding governments and, indeed, those that began work with Frieder in July 2001. Much of the credit for this goes to Frieder. Long after he retired, the ACWL's reputation still rests in large part on the qualities Frieder imparted. He truly is the rock on which the ACWL was built.
In addition to all of these professional qualities, it was also a pleasure for all of us to work with Frieder. For me and all of my colleagues at the ACWL, Frieder was foremost an excellent boss, colleague, and friend. We will miss him greatly, and always remember him with fondness and respect.
