Do International Tribunals Time their Rulings to Accommodate Powerful States?

One of the risks governments take on when they delegate dispute settlement to international tribunals comes from losing control over the timing of dispute outcomes. Policymakers would prefer to have unfavorable information released after elections, and incumbent governments will always prefer to have favorable news released during the run-up to elections. The conventional wisdom holds that this loss of control is one of the main reasons why governments opt to resolve disputes through diplomatic bargaining rather than formal adjudication. In this article, we argue that judges have an incentive to use their discretion over the timing of rulings to accommodate the electoral preferences of governments. This effect should be especially pronounced when dealing with powerful litigants. We test this belief argument by looking to the timing of rulings at the World Trade Organization and the European Court of Justice. As we show, in both cases, unfavorable rulings are significantly more likely to be delivered in the wake of elections, rather than during campaign season, when the ruling would be detrimental to incumbent governments. In fact, we show that judges seem to care nearly as much about electoral timing as policymakers themselves. We create a novel measure of timing bias, which we use to compare the non-randomness of dispute initiation (which governments have control over) to that of rulings (which governments lack control of). As expected, both are non-random; but the release of rulings appears almost as skewed towards the electoral incentives of states as the initiation of cases in the first place. This article thus adds to our understanding of the means by which international tribunals walk a fine line between hewing to the law and recognizing the political constraints imposed by powerful states.