Frieder Roessler was a principled pragmatist, who throughout his career never compromised on his high intellectual and ethical standards. He strove for himself and others to thrive in intellectual and professional freedom, creativity, happiness, and, as years passed, serenity.
Two universities marked his academic upbringing more than others: the University of Freiburg, Germany, renowned for its ordoliberal school in economics, shaped his economic thinking; the Fletcher School in Boston, Massachusetts, USA widened his horizon on political science, the rationality and emotionality of political processes, and the policy aspects of law. From childhood, most striking were the catastrophic experiences of his parent’s generation when Germany was destroyed morally, economically, and politically cthrough Nazism. He often said to me that the mission of his generation was to work for a multilateral system built on rules, ethical standards, human rights, social welfare, equity, and inclusiveness so that experiences, such as those suffered by his parents, would never happen again. Early in his life, he was convinced that he had to leave Germany to learn from other political, legal, economic, and cultural systems abroad, which was somewhat unusual at this period in the country’s reconstruction.
Frieder, recognized for his intellectual and professional drive, mastered legal science and economic theory but equally tried to explore and question political paradigms and to comprehend both the rational and irrational realities of political processes and international negotiations. Fully mindful of these realities throughout his international career, he was convinced that being passive was not an option. Relentlessly, he tried, wherever he could, to shape processes and to ensure they were driven by legal and economic science, facts and data, and fundamental rights standards. He was not content to be just a witness or bystander of change, he felt a need to be actively involved in the transition from the GATT 1947 to the WTO multilateral trading system, and to provide support at the Advisory Centre for WTO Law to empower developing and least-developed countries to take their future into their own hands. When he felt he had reached the limits of steering the system and making a difference in the function he held, he did not hesitate but moved to a different international organization, joined academia, or engaged in capacity building. He left a mark on whatever he touched. – It is generally known, but nevertheless an under-researched mystery of the WTO Marrakesh Agreement, that some of its most powerful features did not seem to have emerged from thorough reflection based on fully transparent, inclusive discussions. By the end of the Uruguay Round negotiations, the single-undertaking approach was of course on the table, but quite a number of countries were convinced they would be able to pick and chose, from the many newly negotiated agreements, those that served their interests the most while abandoning those agreements they considered obstacles to economic development. Had the single-undertaking approach been a certainty throughout the Uruguay Round, many developing countries and least developed countries would have approached the negotiations differently, invested more time and efforts in the discussion process, and insisted on different rules for key agreements, such as the TRIPS Agreement and the Agreement on Agriculture. Some claimed they had not been fully aware that WTO Members (with extremely few plurilateral exceptions) would not be able to pick and choose from the agreements resulting from the Uruguay Round.
India, and also other developing countries thought of a creative way out: invoking the non-discrimination clauses of GATT 1947 would allow them not to sign up to some, or most, WTO covered agreements while still being entitled to the conferral of all the benefits of the WTO Uruguay Round results by those countries ratifying the full package. In other words, Members not signing up to all Uruguay Round agreements could take a free ride on the commitments and obligations which Members ratifying all Uruguay Round agreements would be required to extend on a unconditional MFN basis. The consequences of those attempts are known. With Frieder’s expert advice as GATT Legal Division Director, a legal solution was found whereby GATT Contracting Parties and Uruguay Round negotiating parties adopted all the results of the Round as a single package, including GATT 1994 being a part of the covered agreement. At the same time, they terminated the GATT 1947 to prevent such free-riding based on the GATT 1947 most-favored nation clause. Some developing countries felt trapped and protested against such ‘coups’ by the powerful countries that deemed the WTO covered agreements an inseparable package.
When I joined the WTO Secretariat in September 1995, this was still the talk of the day. Frieder was profoundly convinced that this was legally, politically, and historically the right solution but he was visibly affected by the reaction of some Members. For him, this was not a matter of using a legal construct to help the powerful impose their will through a single package of agreements; for him this was innovative institution-building of historic dimensions. In the ‘window of opportunity’ period, right after the fall of the iron curtain, the unique chance arose for the world trading system to take a big leap forward towards bindingness and rule-orientation. In the longer run, this would protect developing countries and the less powerful better than ad hoc opting out from an innovative, rule-based package of agreements confronting the realities of trade in goods, services and trade-related intellectual property rights towards the end of the twentieth century. Perennializing the provisional application of GATT 1947 with partially grandfathered protectionism when the international trade organization failed was in Frieder’s conviction ultimately much more damaging for developing and least-developed countries.
Frieder was a relentlessly creative, visionary thinker, questioning and reinventing constantly his viewpoints. Contrary to other contemporaries, he did not lose his youthful approach to intellectual curiosity as he aged and advanced professionally. He never stopped thinking about the challenge of reconciling – within an internationalized binding system – trade liberalization with the pursuit of legitimate ‘non-trade’ objectives by governments and citizens. Long before the term ‘regulatory space’ was coined, having spent all of his GATT life fostering rule-orientation through dispute settlement and assisting in rule-making by negotiators, he often said that, when the outcomes of the Uruguay Round started taking shape, the exceptions of GATT Article XX would not be not sufficient to resolve the regulatory challenges Member governments and societies would face in the twenty-first century. He felt the objectives listed were too limited and the burden of proof applicable under exceptions too burdensome. For him, the Tokyo Round Technical Barriers to trade agreements was a first step in the right direction. However, as the breadth and depth of WTO rules gained momentum through the Uruguay Round, his dialectic mind prompted him to look incessantly for ways to preserve regulatory autonomy.
Just before the WTO Agreement entered into force, Frieder passionately embraced the ‘aims and effects test’ used by the panel in the US–Taxes on Automobiles case. Some critics at that time wondered why this deferential approach to regulatory autonomy had been proposed when US Congress deliberated on whether to approve or reject the WTO Marrakesh Agreement, with its impressive number of covered agreements and debates that centered on the superpower’s regulatory sovereignty. It is common knowledge that the ‘aims and effects’ text was strongly rejected by subsequent panels and the Appellate Body. I am nevertheless convinced that Frieder (and those who thought alike) anticipated, if not steered, subsequent developments in jurisprudence. They asked the right questions, being mindful that increased judicialization and adequate regulatory space are two sides of the same coin. There were good reasons for rejecting the test endorsed by the US–Taxes on Automobiles panel, but the underlying rationale may well have paved the way for the legitimate regulatory distinction test under the TBT agreement and other twists and turns in Appellate Body jurisprudence under GATT Articles I, III, and XX. In Japan–Alcohol, EC–Bananas III, and later, the Appellate Body eloquently voiced criticism rejecting the test under the GATT and GATS non-discrimination clauses, much to Frieder’s chagrin. However, the Appellate Body changed course, inter alia, in EC–Asbestos and Dominican Republic–Cigarettes, realizing it may have gone too far. It modulated its prior approach largely excluding regulatory motivations and design under the less-favorable treatment step of the analysis. For example since the Dominican Republic–Cigarettes case, measures that did not distinguish between products on the basis of the origin benefited from a more simplified scrutiny in discrimination claims. In EC–Asbestos, the Appellate Body compared the entire categories of imported products with like domestic products and widened the horizon of analysis of consumer perceptions to include regulatory motivations and design. In this way, raising concerns was no longer limited to the exceptions of Article XX. Frieder felt vindicated, but still struggled with the Appellate Body’s caution in refining its jurisprudential course.
The US–Taxes on Automobiles case was the talk of the town for trade lawyers in Geneva when I went for my job interview there in 1994. Frieder immediately drew the questioning to the US–Taxes on Automobiless panel report, eager to hear my opinion. I expressed that the way the ‘aims and effects’ test had been designed and executed by the panel for determining ‘likeness’ and ‘less favorable treatment’ was flawed and resulted in a suboptimal application of the test. The test seemed twice to perform very similar analyses of aims and effects, thereby making the two-step analytical process under national treatment, and importantly, the analysis of objectives and the way challenged measures were implemented under Article XX and its chapeau partially or wholly redundant. I raised my criticism but Frieder – at least in the interview scenario – was listening carefully and did not insist on being right that this test was for him the solution to the production and processing problem and the limited and arguably incomplete list of legitimate policy objectives in Article XX. He wanted to hear how I would plead and stand my ground based on my line of reasoning in addressing his concerns about regulatory space in alternative ways under a ‘traditional’ line of analysis under GATT Articles I, III, and XX. Despite such disagreement and me being inexperienced, fresh from graduate law school he hired me. However, when I finally joined the Legal Affairs Division, he had already sailed away on his boat across the Atlantic to join Georgetown University.
Frieder told me he felt strongly that it was the right thing to hire people with their own legal views, regardless of the extent, or nature, of prior experience. While considering the significance of GATT-insider knowledge, it was far less important to him than creative legal analytical and genuine oral and written argumentation. And he lived what he said. When I joined, I was amazed by the unique characters and brilliant minds populating the small Legal Division at the time. His successor as the director, Bill Davey, at times also seemed shell-shocked by the collection of characters Frieder had bequeathed to him, and I do not hesitate to count myself in here. Both Bill and Frieder led the team with serenity, passion, intellectual curiosity, and self-confidence. Frieder had surrounded himself with a range of extremely different personalities: some stubborn, others not; some great drafters, others not; some great thinkers, others not; some policy-prone, others principle-oriented; some academically interested, others pragmatic and suspicious of too much academic proclivity in the division. In the management class, managers are told to be aware that supervisors often tend to hire staff with similar qualities to themselves, when they should hire people that complement their skills and those of incumbent staff. Frieder certainly followed this advice, hiring the broadest range of different, creative, sometimes outright peculiar legal minds and practitioners, because his thirst for intellectual debate and incessant self-reflection would be best served in a professional environment of diversity, creativity, modesty, passion, and innovation. This legacy undoubtedly strongly influenced me later when striving to build a similar kind of intellectually free and stimulating environment at the Appellate Body Secretariat.
The diverse Legal Affairs Division, which included people with vast skills and experience,would in Frieder’s view strongly benefit those participating in dispute settlement proceedings and ultimately the WTO Membership at large. Frieder did not treat ambassadors and delegates differently than his own staff and panelists. For him, it was no doubt imperative to know what different Member representatives thought, but this neither constrained his thinking nor determined his actions. Rather he listened to them with intellectual curiosity, often taking their wishes, especially those from the most powerful Members, who were inspired by the mantra of the Member-driven organization, as interesting starting points for debate, much to the surprise, and sometimes exasperation, of delegates. However, those delegates could also be sure that Frieder would not lightly agree, but rather debate with the delegates holding opposing views. This was not the easiest way to establish his strong reputation of independence, combined with competence, foresight, and serenity, but it was effective in building his unmatched standing among Members and at the Secretariat.
Some powerful Members, however, were less impressed with so much freedom of thought, perceiving panel reports as unduly promoting trade liberalization and not taking into consideration fair trade concerns. When I last met Frieder in spring 2024, he admitted he questioned himself when the responsibilities for dispute settlement were divided, and partially taken away from him: The Rules Division was created with the competence of handling trade remedy cases, servicing relevant committees and engaging in capacity building with national trade remedy authorities. It was staffed with civil servants from certain trade remedy authorities and specialized practitioners with great depth but less breadth of knowledge, sometimes righteous and with political acumen – different from Frieder’s way of composing a team. The price for this structural change was increased numbers of unadopted panel reports in trade remedy cases under GATT 1947 and Tokyo Round Codes. In hindsight, Frieder said he came to terms with the decision of senior management and Members because, being taken out of line of fire in trade remedy disputes, meant he could experiment and break new ground in other areas of trade law and dispute settlement, publish and pursue academic interests, which eventually led him to academia.
When Frieder felt he had done his job supporting the creation and transition to the WTO and the new Dispute Settlement Understanding at the Legal Affairs Division, he moved on to academia and then to the new Advisory Centre for WTO Law (ACWL). The ACWL was the epitome of his cherished career, at an age when others start to enjoy retirement. He often said that none of his previous positions had prompted such rewarding feelings and positive feedback as did empowering developing and least-developed countries. Frieder again hired a diverse, multi-skilled, and strongly motivated group of lawyers passionately advancing the ACWL’s mission and vision. It is fair to say that Frieder ‘made’ the ACWL, building its reputation from scratch, investing his own personal stature in the new venture. The ACWL enormously benefited from Frieder’s reputation of competence, independence, and wisdom in its first years. While nobody (openly) questioned the need for capacity building and ensuring that developing countries should be at par in dispute settlement proceedings, some donor governments were criticized openly by others as to why they would fund and sponsor an institution that would train developing countries to sue the donor countries. Frieder’s answer was short and sweet: since developed countries would undoubtedly always strive to act consistently with WTO law, there was no reason to fear developing countries having a better (legal) voice. On the contrary, they would know better how to act consistently with WTO law in litigation and negotiations.
When only a few dispute settlement cases were initially raised before the ACWL, Frieder temporarily shifted this new-found mission in life to focusing on expert legal opinions advising Member governments. Thanks to Frieder’s making, the ACWL first made its name by being diametrically different from a litigative law firm, sometimes telling its clients to refrain from initiating a panel case and instead autonomously repairing WTO-inconsistent domestic regulation. This impressed ambassadors and delegates, including the Indian ambassador at the time who once told me he had tried to explain (not always successfully) to capital and constituencies how many millions they had saved by following Frieder’s advice in not fighting lost cause cases. Maybe precisely because the ACWL and the legal advice given was often non-litigious and not profit-maximizing, it was well-regarded and the Centre built the unmatched reputation it enjoys today.
During my final visit to Frieder April 2024 in Perroy overlooking Lake Geneva, he said that sailing epitomized what he cared most about ultimately: freedom. He spoke of the freedom to decide when, on which pathway, and which destination to reach – in sailing and in legal discourse. He was the only visiting professor who ever sailed on boat across the Atlantic to Georgetown University. Developing this image further, sitting on his favorite bench overlooking vineyards, the lake, and the port where his boat was docked, Frieder said that sailing demonstrates that the freedom the ocean promises is not without limitations. When currents, winds, and weather change, and a breeze turns into a storm, the captain has to fight but, ultimately, has to ‘oblige’ to what cannot be controlled. What appears unpredictable and uncontrollable to the layperson, for a seasoned captain, who has studied navigation, technology, and meteorology, he can influence and master what seems at first uncontrollable: humanity has learned to sail even against the wind, but it takes skills, competence, experience, motivation, stamina. and serenity. Frieder was convinced that what is true for a captain navigating a boat, is also true for the director of a division, institution. or system.
Sailing gives you the time to think, when winds recede and calm reigns the ocean. Then there is plenty of opportunity to reflect and question entrenched viewpoints: pristine waters and expanses of the ocean liberate the mind to think outside established patterns, to break new innovative intellectual grounds. But when the tides turns and storms take over, the captain needs to turn multi-faceted reflections quickly into effective action, implement conclusions, and achieve instant, potent results, or capsize and drown. True for the sailor and for the WTO.
Frieder, in my belief, will somehow continue doing exactly that, inspired by the spirituality he found again in recent years at the interreligious Romainmôtier monastery that for more than a thousand years propagated from the Jura mountains values in symbiosis with Frieder’s.
Requiescat in pace, they say in Latin. Se vidimo nad zvezdami (we’ll see each other again above the stars) we say in Slovenian.
