The Judicial Sensibility of the WTO Appellate Body (original) (raw)
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The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic
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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.
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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
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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.
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The Appellate Body of the Dispute Settlement mechanism of the World Trade Organization is at a crossroads. With the impossibility of designating new members to the Body due to the opposition of the United States, the paper explores the history of the WTO and the Appellate Body, analyzes the current situation and presented proposals of reform by some members to solve the impasse. Finally, it presents a group of resolutions to resolve the issue divided by short, medium and the long term.
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In December 2019 the WTO Appellate Body (AB) will cease to operate unless the United States stops blocking new appointments. The US argues the AB has exceeded its mandate and has indicated it wants to ensure that the AB performs the role originally assigned to it in 1995. This paper discusses the Uruguay round negotiating history with the view to establish what "going back to 1995" entails. It concludes that this should not be difficult assuming a willingness of the WTO membership to seriously consider the US concerns and acceptance by the US of a commitment by the membership to ensure that the AB operates consistently with its 1995 mandate.
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The creation of the Appellate Body (AB) of the WTO entails an unprecedented delegation of power to an international adjudicator, since the WTO requires states to ensure compliance of their domestic regulations with the sweeping obligations in WTO agreements. This is legitimized in some academic analysis and much political rhetoric in terms of the rule of law, suggesting that the role of the adjudicator is merely to apply the precise words of the texts agreed by states, according to their natural meaning. The AB has supported this, by adopting a formalist approach which combines an objectivist view of meaning with a legalistic style of judgement. However, both the general structure and many of the specific provisions of the WTO agreements are indeterminate and raise issues of interpretation which were known to be highly contestable. Although the delegation of adjudication in its early phase was considered to be of a narrow technical function, in the current phase interpretation is more clearly seen to involve a flexible application of principles to cases in the light of the policies involved. The AB's role would be better legitimized by adopting a more open epistemology and reasoning which could be accessible to a wider constituency. However, it is constrained by fear of usurping the political legitimacy of the governments to which it is primarily accountable, and they in turn are motivated by a reluctance to admit to their domestic constituencies how much power has been transferred to supranational instances such as the AB.