Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire (original) (raw)
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WTO Appellate Body: nature of its function and a proposal for reform
2019
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.
To AB or Not to AB? Dispute Settlement in WTO Reform
Journal of International Economic Law, 2020
Recent debates on the operation of the World Trade Organization’s dispute resolution mechanism have focused primarily on the appellate body. We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of depoliticized conflict resolution that is reflected in the negative consensus rule for the adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to World Trade Organization working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the appellate body crisis. Effective, coherent, and consistent World Trade Organization dispute resolution need not include an appellate body. An appropriately redesigned single-stage process can serve just as well, if not better.
The WTO Dispute Settlement System and the Challenge to Multilateralism: Is the Rule of Law in Peril?
SSRN Electronic Journal
The Dispute Settlement System (DSS) of the WTO has been praised as the most successful example of international adjudicatory mechanism capable of resolving efficiently complex disputes in a multilateral framework, moreover inducing or ensuring compliance. The existence of a standing Appellate Body (AB) has been a key element of this success. While the DSS was going beyond the 500 disputes mark in 2015-2016 and new disputes were being tackled, the system has showed “success fatigue” so that practical and more long-term proposal of reforms have been envisaged. Against this positive context, which contrast with the inability of the members of the WTO to conclude further negotiations thus encouraging alternative regional agreements, the US has voiced more and more criticism at the DSS, mainly at the AB, accusing it of “overreach” and of procedural disrespect of the rules. This has lead the Trump administration to block the process of reappointment of AB members to fill vacancies, with the prospect of the demise of the AB at the end of 2019 and a paralysis of the WTO functioning. While these criticisms have been opposed by other WTO Members and rejected by independent observers as groundless, the US has resisted until recently to engage with other WTO members in finding acceptable multilateral solutions. This has given credit to the suspicion that through its challenge to the adjudicatory body of the WTO the Trump administration is in reality challenging the multilateral approach to the governance of international trade relations in general, a key feature of the rule-based international order established after WWII which maintains its value.
Solving the WTO Dispute Settlement System Crisis
The Journal of World Investment & Trade
The three articles of this Special Issue Section,1 which I have the pleasure and privilege of introducing, represent major contributions to the current academic and diplomatic debate on the US-instigated World Trade Organization (WTO) Appellate Body's (AB) demise, its consequences and remedies. All three articles were initially presented as papers in a panel session on the current crisis of the WTO Dispute Settlement System (DSS) at the Society of International Economic Law (SIEL) Biennial Conference on 'International Economic Law in Unsettling Times' held at the American University, Washington College of Law in Washington D.C. in July 2018, but have been considerably revised and updated for the purpose of publication. They have not lost their relevance; on the contrary, the crisis has been going on and has even aggravated since July 2018 due to the United States' refusal to give a 'green light' to the renewal of the AB members. This is leading to the 'extinction' of the AB due to its membership falling below to the minimum three members required to decide cases on 10 December 2019. The various criticisms by the United States of AB practices are an unacceptable basis for such a radical reaction as paralyzing the whole DSS and are contrary to good faith.2 The United States has moreover refused until now to engage
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.
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.
Reviewing Appellate Review in the WTO Dispute Settlement System
As the World Trade Organization heads towards the Hong Kong Ministerial Conference in December 2005 and the Appellate Body celebrates its 10 th anniversary, it is worth reflecting on the proposals advanced in the ongoing review of the Dispute Settlement Understanding that relate specifically to WTO appeals. This commentary considers several key proposals that fall within this category, concerning in particular the number and term of Appellate Body Members, the anonymity of Appellate Body reports, the absence of interim reports at the appellate stage, and the possibility of introducing a formal remand mechanism. These proposals raise some issues that are common to other legal systems and for which different systems have adopted different solutions. An examination of the various approaches in certain domestic and international contexts may be useful in evaluating individual proposals within the WTO, while keeping in mind the distinctive features of WTO appellate review and the broader background of the WTO dispute settlement system.]
A Survey of the Literature on the WTO Dispute Settlement System
Cepr Discussion Papers, 2006
cannot be initiated ex officio; there is no authority assigned to a supra-national entity (a watchdog) to initiate complaints against WTO Members; and disputes are launched at the initiative of a WTO Member. Adjudication in the WTO system has two phases: one in principle bilateral, and one multilateral. The bilateral phase consists of consultations between the complainant and the defendant. Few disputes are of a purely bilateral nature however, and even if this is the case, other WTO Members might have an interest in the interpretation of the rules pertinent to this particular transaction since, arguably, such interpretation might be influential in interpreting their own commitments in the future. To this effect, when requesting consultations, the complainant has to notify the WTO as to the subject-matter of the dispute. Other WTO Members wishing to join as co-complainants can do so, provided that the defendant accepts their request (Art. 4.11 DSU). The subject-matter of a particular dispute can range from disagreement over a particular transaction and its consistency with the relevant WTO law (e.g., A believes that B imposed antidumping duties without having demonstrated any injury resulting from dumped imports), to disagreements over the consistency of a legislation with the WTO rules (e.g., A believes that B, by enacting legislation which precludes its investigating authorities from conducting injury-analysis in the context of an antidumping investigation, is violating its obligations under the WTO). The standard of review however, is more demanding in the latter case. Assuming that the parties reach no solution during the consultations-stage, the complainant can request the establishment of a panel to adjudicate the dispute. Such a request leads to the second, multilateral phase, consisting of two parts: the first is the panel procedures, the panel being the analog to a first instance court; the second part is the procedure before the Appellate Body, the last instance court. Whereas the threeperson panels are ad hoc adjudicating bodies, the composition of which depends, in
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.