Paralyzing the WTO from the Inside: The Deadlock of the Appointment of Appellate Body Judges and its Repercussions (original) (raw)
Related papers
The Appellate Body Deadlock at the WTO: Identifying Solutions Within the DSU and Beyond
2019
The World Trade Organization has grown into one of the most influential international organizations on the international plane. Its rise to prominence has also been a direct result of the success of the WTO dispute settlement mechanism, which has addressed more than 570 alleged violations of WTO agreements to date. Nevertheless, some WTO Members have sharply criticized the dispute settlement system in the past and have expressed dissatisfaction especially with the functioning and overreach of the Appellate Body. From 2017, the United States government emerged as one of the fiercest critics of the Appellate Body and in order to compel systemic reform, it blocked the selection process for new members to the Appellate Body. Typically composed of seven members, the Appellate Body today has only three members that can accept new cases, the minimum number necessary for it to function. Several academics and governments have worked on solutions to overcome this deadlock. This contribution a...
Journal of Humanities, Social and Management Sciences (JHSMS) Vol. 2, No. 1 (January-June 2021), 50-62, 2021
The World Trade Organization's (WTO's) dispute settlement mechanism, known as the "pearl in the crown," is stalled due to United States (U.S.) obstruction, which prevents appellate body members from being ordained. This situation continues, and the WTO's dispute settlement function is paralyzed since 2019. The WTO has faced a crisis in recent years, and the trade legislation has stagnated. The dispute settlement body was also blocked due to U.S. interference, which led to the failure of the appellate body's members to be selected. The data has been gathered for this descriptive study using secondary research method, including different newspaper articles and the internet, which were outlined and noted. This paper presents and evaluates several existing proposals on how to get out of the impasse. This paper points out whether the existing WTO members can choose to join or not participate in establishing a new appellate body. On this basis, it makes its own relatively unique proposal, namely, to establish a substantial dispute settlement mechanism outside the WTO, parallel to the existing dispute settlement mechanism, and it demonstrates the legal feasibility of the proposal. Immediately, the states should begin negotiations on the significant agreements required for this new appellate body. It will effectively solve the deadlock in the dispute settlement mechanism caused by the United States, blocking the appointment of members of the appellate body.
2021
In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.
The Impasse in the Appointment of Judges to the WTO Appellate Body: Are There Any Viable Solutions?
SSRN Electronic Journal, 2018
The WTO dispute settlement system, often described as the jewel in the crown of the WTO is fast skidding of the path of success due to the US vetoing of appointment of judges to the Appellate Body-the second tier appellate review organ. With the seven-member body now depleted to three, the dispute settlement system and possibly the entire WTO legal system is tethering on the precipice of a constitutional crisis. This has been made even more serious as two of the remaining three members of the Appellate Body-Thomas R. Graham and Ujal Singh Bhatia will complete their second unrenewable terms on 10 December 2019. This article considers viable options for appointing judges to the Appellate Body outside the very stringent rules on consensus established in Article 2:4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding or DSU). It also explores a possible proactive use by the Ministerial Conference and the General Council, of the power to adopt authoritative interpretations under Article IX:2 of the WTO Agreement to help break the current impasse in the appointment of judges to the Appellate Body.
The Judicial Sensibility of the WTO Appellate Body
European Journal of International Law, 2016
When the World Trade Organization's new dispute settlement machinery was created in 1995, no one knew for certain what its consequences would be. Innovative and experimental in crucial respects, it represented an extraordinary gambit by the Uruguay Round negotiators, who agreed to its creation partly out of frustration with the perceived deficits of the General Agreement of Tariff and Trade's enforcement machinery, partly out of fear of unilateralism and partly in the context of a particular moment of post-Cold War faith in the international rule of law. Although a mythology very quickly emerged around this new dispute settlement machinery, according to which it represented a step-change from power-oriented to rule-oriented trade diplomacy, this was in truth always more of an aspirational expression rather than a statement of fact. In the mid-1990s, the new system had many possible futures, and its historical meaning was yet to be made. No one was more conscious of this than the seven original members of the Appellate Body, who understood well the stakes of their endeavour and felt very keenly the scrutiny of the international community as it watched how this institutional experiment would unfold.
The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic
The Appellate Body of the WTO and Its Reform, 2019
The current crisis engulfing the multilateral trading system has crystalized in the dispute over the (re-)appointment of the members of the World Trade Organization's Appellate Body. While the legislative arm of the organization has never lived up to its potential, its dispute settlement arm with the Appellate Body at its apex was seen as a lodestar for other international courts and tribunals. The United States has taken issue not only with individual decisions of the Appellate Body (as well as individual Appellate Body members), but with the institution as such. The article recounts the important institutional redesign that has led to the Appellate Body becoming the World Trade Organization's institutional "centerpiece". These very same developments are now destined to lead to the Appellate Body's downfall with potential reverberations for the entire World Trade Organization's dispute settlement process. Moreover, it threatens the institution as a whole, unless some last minute compromise can be found between various competing visions of global economic governance.
The WTO Appellate Body or Judicial Power Unleashed: Sketches from the Procedural Side of the Story
European Journal of International Law
The Appellate Body's overall judicial policy that Robert Howse analyses in his EJIL Foreword article would have been less sustainable and coherent if it were not underpinned by a distinct approach to decision making or, if you will, by a certain 'procedural sensibility'. This reaction paper contends that there existed, as a complement to, and a cornerstone of, the complex ensemble of judicial policies and decisions analysed by Howse, a procedural judicial policy that played a significant role in facing the legitimacy challenge. Detecting so much complexity, consistency and wisdom in the judicial policy of the World Trade Organization's (WTO) Appellate Body, as Robert Howse does in his extensive EJIL Foreword article 'The World Trade Organization 20 Years On: Global Governance by Judiciary', might raise some suspicion of apologia. 1 The Appellate Body's history indeed looks like a success story, not only for the organ that has established itself but also for a WTO under threat of a crucial disequilibrium between the big players' expectations, pushing for further liberalization and the contestation of the neo-liberal agenda already sanctified during the Uruguay Round. Of course, retrospective readings of a 20-year-long history, rising above and beyond daily business, tend to impart to it a flavour of overall coherence that was not always perceptible as the processes unfolded. Moreover, such a reading of the Appellate Body's history is not completely unprecedented, as its 'rise
International Judicial Lawmaking: A Theoretical and Political Analysis of the WTO Appellate Body
Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
Resolving or Exacerbating Disputes: The WTO's New Dispute System
International Affairs, Vol. 79, No. 4, 2003
As the WTO's dispute settlement system mires in controversy, this article–written in 2003–reminds us how we got here: In 1995 the dispute resolution system of the WTO was transformed to make it more effective in enforcing WTO rules. Ironically, the improvements in the dispute resolution system have contributed directly to greater conflict in the WTO. How can improving a system to resolve disputes actually exacerbate conflict? Alter identifies a number of conflict enhancing consequences of the change in the dispute resolution mechanism. Conflict is not per se bad. Indeed if the outcome of this conflict is that governments must better justify participation in the WTO, then conflict is good. But there is a danger that international courts are more likely than most courts to generate conflict, while the international legal and political system is less adept at weathering controversy and addressing valid public concerns. Left unaddressed, conflicts generated by international legal bodies can erode support for the international legal system and multilateral strategies in general. Alter puts forth solutions designed to build into internationally legalised processes political safety valves, greater political sensitivity, and improved accountability, as well as legitimacy enhancing devices. Demonstrated here in the case of the WTO, Alter's analysis applies to international legal systems generally.