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"Playing power is the game of negotiation [, and] such a game is particularly relevant in the case of asymmetrical negotiations."1
I. INTRODUCTION
In 1978, the terms "power orientation" and "rule orientation" first entered the scholarly lexicon, thus transforming the modern understanding of the international system. Professor John H. Jackson used these terms to describe the evolution of the General Agreement on Tariffs and Trade (GATT) from a loose institutional setting in which asymmetries of power between states had a significant bearing on the outcome of disputes to a firmly established institution, the World Trade Organization (WTO), with predetermined rules and procedures, the effect of which was to constrain the exercise of power by stronger states against weaker ones.2 Over time, the concepts of power orientation and rule orientation became inextricably intertwined with scholarly understandings of the multilateral trading system, the most important element of which is the GATT/WTO dispute settlement system.3
Since 1978, three aspects of the multilateral trading system have influenced scholars' views of the GATT/WTO. First, powerful states like the United States and the European Community (EC) have lost cases in the GATT/WTO dispute settlement system and appear to have complied with adverse judgments.4 Second, the multilateral trading system has undergone a process of institutionalization over the past few decades, culminating in the creation of the WTO in 1995. Third, the GATT/WTO increasingly relies on binding rules and procedures to govern relations and resolve disputes between members, with the basis of all interaction being the sovereign equality of states regardless of the amount of power they possess.5 Based on this evidence, scholars have concluded that the GATT/WTO dispute settlement system has evolved beyond power orientation to embrace a rule-oriented approach to dispute resolution.6
Given the realities of compliance and state behavior in the GATT/WTO dispute settlement system, however, it is reasonable to question the veracity of this scholarly consensus. Upon closer analysis, the evidence suggests that the current characterization of the GATT/WTO dispute settlement system is based on a flawed conception of power orientation. Since 1978, scholars have understood power orientation within a Realist framework, which predicts that in a power-oriented system, stronger states will prevail in disputes with weaker ones and will not comply with the judgments of international tribunals when...