terms of legal capacity manifests itself entirely in pre-litigation negotiations, just as we
hypothesized.
Could the gap, instead, be a result of developing countries’ failure to secure com-
pliance by defendants against whom adverse rulings have been issued, perhaps because
these complainants’ retaliatory threat is not sufficiently credible? Model 4 takes up this
question, looking at the level of concessions in the 41 coded WTO cases in which the
WTO ruled fully against the defendant. Here, too, the complainant’s per capita income
has no effect. A rich complainant has no special advantage over a poor but equal-sized
complainant in securing compliance from a defendant found in violation of WTO obliga-
tions.
Hence the primary difficulty, from the poor complainant’s standpoint, lies early in
a dispute’s origins, not in litigation once embarked upon, nor in the retaliatory endgame,
despite the oft-noted (and valid) point that weak market power severely curtails a com-
plainant’s leverage, even if it wins a ruling. This point, after all, is just as applicable to
Switzerland as it is to Ecuador. Our point is quite different. The complainant’s level of
development speaks directly to its capacity for recognizing, and aggressively pursuing,
legal opportunities as a complainant. Having this capacity, a complainant is in a much
better position to hit the right legal buttons in the request for consultations, to pressure the
defendant on its weakest legal points during consultations, and to give the impression that
the issue might well be pushed to a successful conclusion. Especially with the recent
trend in legal aid and bilateral technical assistance, even a poor developing country may
hire litigators once a dispute is before a panel. Our findings suggest that legal capacity,
as evidenced by level of development, ironically matters less once the parties resolve to
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Convention