Imagine that you are a party to a case in a US court. Imagine that your adversary is a company. Imagine that the judge used to work as an attorney for that company. That’s what happens in WTO courts.
The US recently lost a WTO case on our country of origin labeling (COOL) law for meat. Mexico and Canada challenged this law at the WTO saying it discriminated against their products. The lead judge used to work for the government of Mexico in trade negotiations and policies. While this may not have violated ethical rules at the WTO, it violates basic tenets of US legal ethics.
Joel Joseph of the Made in the USA Foundation wrote, a couple months ago:
Cases reviewed by the WTO are determined by “judges” selected for one case even if they have demonstrated conflicts of interest. …
WTO court appointees should not be allowed to be partisans who have represented one county involved in the trade disputes. The panel chair in the COOL case was Ricardo Ramírez-Hernández, a Mexican citizen who has represented Mexico in trade matters. Ramírez-Hernández holds the chair of International Trade Law at the Mexican National University in Mexico City.
Ramírez-Hernández was deputy general counsel for Trade Negotiations of the Ministry of Economy in Mexico for more than a decade and represented Mexico in international trade litigation and investment arbitration proceedings. He acted as lead counsel to the Mexican government in several WTO disputes. He has also served on various NAFTA panels.
The upshot is that the international tribunal system trumps US and state courts. But there are no ethical rules or conflict of interest rules that are core to the mature US legal system. It is a kangaroo court.
That is one reason why we need to reign in the proliferation of the Investor-State Dispute System that is included in the trade agreements. The ISDS allows foreign investors to directly sue the US government for legal changes that interfere with foreign company profits.
