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Frieder Roessler's Contributions to the WTO Legal System

Published online by Cambridge University Press:  14 October 2025

Gabrielle Marceau
Gabrielle Marceau*
Affiliation:
World Trade Institute, Geneva, Switzerland
*
Email: gabrielle.marceau@wto.org
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Extract

On 11 September 2024, I completed 30 years at the World Trade Organisation (WTO). In fact, the WTO was not formally established until 1 January 1995, a few months after I joined the Secretariat. I was lucky enough to be involved in the ‘Prep Com’, the series of works of the Preparatory Committee to the WTO. During that period, the Legal Affairs Division (LAD) was engaged in more than their main function of assisting GATT Panels. Roessler's contribution during that pivotal transition from the GATT to the WTO played a fundamental role in shaping the current architecture of global trade governance. As will be discussed further as we progress, Roessler designed the transition of the GATT and Tokyo Round Codes, and their continuation as an integral part of the WTO. Roessler's mark on the WTO was thus reflected in many areas. Before discussing the amazing architecture of this transition from GATT to WTO, I would like to add a few words on one of Roessler's most enduring contributions to the WTO – his contribution to the dispute settlement mechanism. Frieder's role in the very foundation and birth of the GATT dispute settlement system still stands today.

Information

Type
Reflective Essay
Information
World Trade Review , Volume 24 , Special Issue 3: A Tribute to Frieder Roessler , July 2025 , pp. 334 - 338
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of The Secretariat of the World Trade Organization

On 11 September 2024, I completed 30 years at the World Trade Organisation (WTO). In fact, the WTO was not formally established until 1 January 1995, a few months after I joined the Secretariat. I was lucky enough to be involved in the ‘Prep Com’, the series of works of the Preparatory Committee to the WTO. During that period, the Legal Affairs Division (LAD) was engaged in more than their main function of assisting GATT Panels.Footnote 1 Roessler's contribution during that pivotal transition from the GATT to the WTO played a fundamental role in shaping the current architecture of global trade governance. As will be discussed further as we progress, Roessler designed the transition of the GATT and Tokyo Round Codes,Footnote 2 and their continuation as an integral part of the WTO. Roessler's mark on the WTO was thus reflected in many areas. Before discussing the amazing architecture of this transition from GATT to WTO, I would like to add a few words on one of Roessler's most enduring contributions to the WTO – his contribution to the dispute settlement mechanism. Frieder's role in the very foundation and birth of the GATT dispute settlement system still stands today.

1. Dispute Settlement

The LAD I was inducted into was a small team of three lawyers, each of whom had a prominent and distinct role within the GATT Secretariat. However, that had not always been the case. Frieder Roessler joined the GATT Secretariat in 1973 as one of its first lawyers. Recalling his early days in the GATT Secretariat, Roessler noted that ‘Legal Officer’ was not an official designation at the time, and his colleagues often laughed at the idea of establishing a legal office within the institution.Footnote 3 During that period, legal skills were not considered essential for the working of the GATT Secretariat.Footnote 4 It took almost a decade for the institution to finally create the Office of the Legal Affairs (OLA).Footnote 5 The same year, in 1983, Roessler was transferred to the Office of Legal Affairs along with Ernst-Ulrich Petersmann.Footnote 6

The OLA was created at a time when disputes were dealt with much differently than they are today. At the time, diplomacy played a more dominant role in GATT dispute resolution than strict legal principles, leading to outcomes where the interest of the parties took precedence over legal frameworks, with voluntary export restraints as an example of measures taken to resolve disputes. The underlying idea was to manage disputes, not litigate them.Footnote 7

Roessler always stressed the need to build a rules-based multilateral trading systemFootnote 8 and played a crucial role in legalizing the dispute settlement mechanism.Footnote 9 His most important contribution to the dispute settlement mechanism came on his own initiative. GATT Panels, until that point, used to draw up their own working procedures for each dispute. Noting the benefits of having a standardized panel procedure for GATT Panels, he took it upon himself to prepare such a draft procedure. To his own surprise, the draft was widely adopted by GATT Panels beginning in the mid-1980s.Footnote 10 Consistent application of this procedure led to its incorporation into the Tokyo dispute settlement understandingFootnote 11 and the WTO Dispute Settlement Understanding (DSU).Footnote 12 The origins of the elements of fairness, impartiality, and due process in the DSU can be traced back to Roessler's draft panel procedures. These guidelines ensured that the dispute resolution process would be transparent and that parties could trust the independence, impartiality, and neutrality of those tasked with adjudicating disputes. These efforts cumulatively contributed towards shifting the GATT's approach of managing disputes to applying the rule of law.Footnote 13 Many of such principles were also negotiated as components of the WTO Rules of Conduct. Roessler appointed me as Secretary of this negotiating group. The negotiation process proved to be difficult and sensitive with several key issues complicating the process.Footnote 14 The negotiation finally resulted in the creation of the most detailed and sophisticated provisions on impartiality and independence in an international dispute settlement system. Those rules were later incorporated into the Rules of Conduct of the DSU.

An important milestone in the legalization of the GATT dispute settlement system was the elevation of the Office of the Legal Affairs to the LAD in 1989.Footnote 15 This coincided with the LAD receiving the explicit mandate to assist Panels in the dispute settlement process.Footnote 16 Roessler was appointed its first Director.Footnote 17 During his tenure at the GATT Secretariat, he was a part of the change from lawyers being outside the dispute settlement process to assisting committees relevant to a dispute and, finally, to directly assisting Panels themselves.Footnote 18 During the last stage of the transition from the GATT to the new WTO, Roessler laid down the operational framework of the LAD while servicing Panels.Footnote 19 He ensured that the standardizing practices that he had initiated in the OLA continued into the LAD. Prior to the creation of the Appellate Body, the LAD played a critical role in harmonizing the structure of all GATT Panel Reports.Footnote 20 This contributed to building the membership's trust in a more legalized dispute settlement process.Footnote 21 According to Debra Steger, first Director of the Appellate Body, the model that Roessler laid down at the LAD for servicing GATT Panels was later adopted for the functioning of the Appellate Body Secretariat.Footnote 22

2. The Transition from the GATT to the WTO

One of the critical issues towards the end of the Uruguay Round was the legal status of GATT 1947 and the Tokyo Round Codes.Footnote 23 It was also important for the transition that the practices of the GATT were continued in the WTO and the properties (desks, books) of the staff were transferred.

Despite the widespread support for having a GATT text in the new WTO framework, the initial approach of preparing a new GATT text by removing obsolete provisions from GATT 1947 had failed. This impasse was resolved based on advice from the LAD to incorporate the GATT 1947 in the GATT 1994.Footnote 24 This was important to safeguard legal continuity and stability in international trade governance. Continuity to the GATT practices was provided through specific references within the WTO Agreements.Footnote 25 Having resolved the issue of including a GATT within the WTO Agreement and the creation of a concept of the GATT acquis as composing the GATT 1994, questions remained regarding the legal status of the GATT 1947 on the entry into force of the WTO Agreement. The general understanding among the membership was that once all previously GATT members become members to the WTO Agreement, the GATT 1947 would be redundant and therefore terminated. While Article 70 of the Vienna Convention on the Law of Treaties (‘VCLT’) gave direction on potential conflicts during this transition,Footnote 26 Members desired greater certainty in the rules.Footnote 27

The uncertainty was resolved through a transition plan developed by Roessler for Member consideration that became central to the Decision on Transitional Coexistence of the GATT 1947 and the WTO Agreement (‘the Decision’). According to the Decision, the GATT 1947 and the WTO Agreement would co-exist for one year after which the GATT 1947 would be terminated.Footnote 28 For the transition plan, drafted by Roessler, to be accepted among the membership, it had to address the ‘free rider’ issue. Certain Members, who were parties to both the GATT 1947 and the WTO Agreement, were concerned that a few States might be likely to benefit from the Most-Favoured Nation (‘MFN’) clause in the GATT 1947 without being subject to the obligations under the single undertaking framework of the WTO. Addressing this concern, Roessler suggested insulating the MFN clause under the WTO Agreement from non-members during the transition period. Members incorporated this concept into the Decision allowing Members of the WTO not to extend benefits arising from concessions, commitments, or other obligations assumed solely under the WTO Agreement to States not yet parties to the WTO Agreement.Footnote 29 The concept helped address the concerns of the Members and was included in the draft Decision by consensus, thereby eliminating any room for free riding.

There were also other areas of the GATT framework that required clarity regarding its application during the transition period. The Decision clarified that the dispute settlement rules under the GATT 1947 (pre-Montreal RulesFootnote 30) would not be applicable after the termination of the GATT 1947.Footnote 31 The Decision gave primacy to the WTO Anti-Dumping Agreement and the WTO Agreement on Subsidies and Countervailing Measures over the corresponding Tokyo Round Codes during the transition period.Footnote 32 Correspondingly, the signatories of the corresponding Tokyo Round Codes allowed The Codes to remain in effect for two years for investigations or reviews not subject to their corresponding WTO agreements.Footnote 33 Since the International Bovine Meat Agreement and the International Dairy Agreement included a termination of the previous arrangements in place, there was no requirement for a transition and they were simply terminated.Footnote 34 Similar to the GATT 1947, the GATT Committees also continued operation during the transition period. For the purpose of a smooth transition, it was decided that GATT Committees would co-ordinate their work with the corresponding WTO Committees. Special procedures were drawn with regard to transparency and co-ordination between these committees during the transition period.Footnote 35 GATT Contracting Parties who were eligible to be original Members of the WTO, but were going through their ratification process, were even permitted to take part in the WTO Committees.Footnote 36 The transition also involved the transfer of goods and assets from the GATT and the Interim Commission for the International Trade Organization (ICITO) to the WTO. With the dissolution of the ICITO, contracts of its employees were also required to be transferred to the WTO. The LAD was tasked with developing the legal instruments for this process.Footnote 37

The issues concerning the transition, discussed above, were largely ignored during the Uruguay Round negotiations. It was only on completion of the negotiations that most issues related to the transition were unearthed and addressed in the Implementation Conference. During this final phase, before the entry into force of the WTO Agreement, timely conclusion of the transition was certainly the priority and pragmatism was key. Roessler's interventions through the LAD proved crucial during the period. The transition of the Special and Differential Treatment provision in the Agreement on Implementation of Article VII of the GATT undertaken on 12 April 1979 (‘Tokyo Round Customs Valuation Code’) was one such example. The Tokyo Round Customs Valuation Code allowed for a five-year delayed entry into force for developing countries. However, the same provision in the WTO Customs Valuation Agreement was extended only to those developing countries that were not parties to the Tokyo Round Customs Valuation Code. This was a concern for those developing countries that were parties to the Tokyo Round Customs Valuation Code but had not completed their five-year period. It was a WTO General Council decision, which Frieder assisted in drafting, that allowed this five-year period under the Tokyo Round Customs Valuation Code to continue under the WTO Customs Valuation Agreement.Footnote 38

Born in a generation that had to live through the horrors of the Second World War, Roessler was always motivated to contribute to the organization that he believed made wars less likely.Footnote 39 He believed that a well-governed trade system, based on fair and equitable rules, could foster global economic cooperation and mutual benefit. His contributions to the multilateral trading system indeed turned out to be transformative. Roessler's career spanned a crucial phase in the development of international trade law. His work during the transition from GATT to the WTO laid the foundation for a rules-based trading system where every Member found their voice. His vision for a robust and impartial dispute settlement mechanism has left an enduring mark on the way trade disputes are resolved. Roessler's legacy is one of leadership, fairness, and integrity. These principles should continue to inspire international civil servants in Geneva in the future.

Footnotes

*

Gabrielle Marceau, PhD is Associate Professor at the University of Geneva and Senior Counsellor in ERSD (Research division) in the WTO Secretariat. All opinions expressed are only those of the author and do not represent the view of WTO Members or the Secretariat. Thank you to Anand Nandakumar, for his assistance.

References

1 Marceau, G. (2015) ‘From the GATT to the WTO: The Expanding Duties of the Legal Affairs Division in Non-Panel Matters’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 244CrossRefGoogle Scholar.

2 This was one of the most complex legal and institutional challenges that arose during the transition from the GATT to the WTO. The LAD was also consulted by several negotiation groups for advice on legal matters. After the conclusion of the negotiations, a legal drafting group serviced by the LAD was also established tasked with ‘scrubbing’ the text of the agreements from a legal point of view.

3 Roessler, F. (2015) ‘The Role of Law in International Trade Relations and the Establishment of the Legal Affairs Division of the GATT’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 161Google Scholar.

4 Ibid., 161–162.

5 Ibid., 166.

6 Ibid., 166; Petersmann, E.-U. (2015) ‘The Establishment of a GATT Office of Legal Affairs and the Limits of “Public Reason” in the GATT/WTO Dispute’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 187Google Scholar.

7 Roessler, supra n. 3, 167.

8 Ibid., 163.

9 See Petersmann, supra n. 6, 188.

10 Roessler, supra n. 3, 167.

11 Marceau, G., Porges, A., and Baker, D.A. (2015) ‘Introduction and Overview’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 38, n. 146CrossRefGoogle Scholar.

12 Roessler, supra n. 3, 167, n. 6.

13 Marceau, Porges, Baker, supra n. 11, 28.

14 Marceau, G. (1998) ‘Rules on Ethics for the New World Trade Organisation Dispute Settlement Mechanism: The Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes’, Journal of World Trade 32(3), 57, 68–70Google Scholar.

15 Petersmann, supra n. 6, 187, 188

16 Marceau, G. and Baker, D.A. (2015) ‘A Short History of the Rules Division’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 12310.1017/CBO9781316048160CrossRefGoogle Scholar.

17 Roessler, supra n. 3, 166, 168.

18 Marceau, Porges, Baker, supra n. 11, 38.

19 Marceau, Baker, supra n. 16, 124.

20 Roessler, supra n. 3, 168.

21 Hudec, R.E. (1998) ‘The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure’, in Bhagwati, J. and Hirsch, M. (eds.), The Uruguay Round and beyond: Essays in Honour of Arthur Dunkel. Springer, 101–2010.1007/978-3-662-10413-2_7CrossRefGoogle Scholar.

22 Steger, D.P. (2015) ‘The Founding of the Appellate Body’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 452Google Scholar.

23 Porges, A. (2015) ‘The Legal Affairs Division and Law in the GATT and the Uruguay Round’, in Marceau, G. (ed.), A History of Law and Lawyers in the GATT/WTO. Cambridge University Press, 230Google Scholar.

24 Roessler, supra n. 3, 171. According to this proposal, which was later adopted, the GATT 1947 became a component of GATT 1994. However, GATT 1947 and GATT 1994 were to be legally distinct instruments.

25 Marrakesh Agreement Establishing the World Trade Organisation, Article XVI:1; DSU, Article 3.1.

26 Marceau, G. (1995) ‘Transition from GATT to WTO: A Most Pragmatic Operation’, Journal of World Trade 29(4), 147, 149–152CrossRefGoogle Scholar.

27 Ibid., 153.

28 Decision on Transitional Coexistence of the GATT 1947 and the WTO Agreement, adopted on 8 December 1994 (‘the Decision’), para. 3.

29 The relevant excerpt of the Decision reads as follows: ‘Contracting Parties Decide as follows: 1. The contracting parties that are Members of the WTO may, notwithstanding the provisions of the GATT 1947: (a) accord to products originating in or destined for a Member of the WTO the benefits to be accorded to such products solely as a result of concessions, commitments or other obligations assumed under the WTO Agreement without according such benefits to products originating in or destined for a contracting party that has not yet become a Member of the WTO' (emphasis added).

30 The Montreal Rules were a series of improvements to the dispute settlement rules that existed prior to the Mid-Term Review Conference in Montreal, 1988. The Montreal Rules were adopted by a decision of the GATT contracting parties in 1989. See Decision of 12 April 1989 on improvements to the GATT dispute settlement rules and procedures (BISD 36S/61). The dispute settlement rules that existed prior to the Montreal Rules is referred to as ‘pre-Montreal Rules’, which included Articles XXII and XXIII of the GATT 1947 and the ‘Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance’ adopted on 28 November 1979 (Document L/4907).

31 The Decision, supra n. 28, para. 2.

32 Transitional coexistence of the Agreement on Implementation of Article VI of the GATT and the Marrakesh Agreement Establishing the World Trade Organisation; Transitional coexistence of the Agreement on Implementation of Articles VI, XVI, and XXIII of the GATT and the Marrakesh Agreement Establishing the World Trade Organisation.

33 Marceau, supra n. 26, 157–159.

34 Article VI, International Bovine Meat Agreement; Article (1)(c), International Dairy Agreement.

35 ‘Transitional Arrangements: Avoidance of Procedural and Institutional Duplication’, adopted on 8 December 1994, paras. 3 and 4.

36 ‘Participation in Meetings of WTO Bodies by Certain Signatories of the Final Act Eligible to Become Original Members of the WTO’, adopted on 8 December 1994

37 Roessler, supra n. 3, 171. ICITO was established by a resolution at the United Nations Conference on Trade and Employment in Havana, 1947–1948 as a temporary body that would cease to exist on the establishment of the International Trade Organisation (ITO). However, since the US Congress failed to ratify the Havana Charter establishing the ITO, the permanent body was never created.US ratification was not an essential condition of the establishment of the ICITO.

38 Ibid., 161.

39 Roessler, supra n. 3, 161, 162.