Busier than Ever? A Data-Driven Assessment and Forecast of WTO Caseload

Abstract

Conventional wisdom has it that, in recent years, the legalized mechanism of dispute settlement before the World Trade Organization (WTO) has been “busier than ever”, “a victim of its own success”. This paper uses count data to assess the WTO’s current caseload and examines how it has evolved since the WTO’s creation in 1995. We also forecast panel and Appellate Body (AB) caseload ten years from now using different scenarios. WTO dispute settlement does, indeed, currently experience a peak in terms of the total number of cases pending before panels and the AB. However, this is not due to an increase in new cases filed, but rather because pending cases take much longer to conclude as they have become more complex and are often delayed for lack of human resources. In addition, fewer cases filed get formally settled, appeal rates remain very high and close to one in four adopted panel or AB reports have required an additional compliance proceeding. These three factors -- fewer settlements, a high appeal rate and significant compliance problems -- have led to more (pending) caseload without actually more (new) cases filed, or more panel or AB reports issued. The number of reports produced per year has actually gone down. WTO dispute settlement is also predominantly used (i) for certain types of disputes (45% of cases filed between 2012-2016 are trade remedy disputes, compared to only 23% between 1995-1999) and (ii) for disputes between a small subset of WTO members (20 WTO Members represent 85% of DSU participation as main party). Looking forward, we forecast that in a “business as usual” scenario the current glut in WTO caseload will not disappear. Especially for panels, it will only get worse. This raises the question of whether the system, without course correction, is sustainable. There is, however, hope: if timeframes could be scaled back to what they were in earlier days (our “back to normal” scenario) forecasted panel and AB caseload would be dramatically reduced, considerably below current levels. This highlights that recently inflated timeframes are a key problem. If, in addition, the system could (i) improve on its “clearly preferred” solution of settlement (e.g by making more effective use of consultations), (ii) parties were to exercise restraint when it comes to appealing panel reports and (iii) the number of follow-up compliance disputes could be scaled down (e.g. by clarity in reports and better cooperation between the parties) – the assumptions under our third “more settlements, less appeals, better compliance” scenario – WTO caseload would drop to surprisingly low levels (post-2021: 7-8 concurrent panels, and 1-2 concurrent AB proceedings). Even more encouraging, none of the improvements suggested necessarily require formal DSU amendments. They have been achieved in earlier years under the current system. Much is in the hands of WTO panels, the AB and litigants themselves. But there is also a “worst case scenario”: All three of our forecast scenarios are based on an operational AB; if WTO Members continue to fail to fill vacancies on the Appellate Body, WTO dispute settlement risks grinding to a halt in December 2019, at which time less than three individuals would remain on the AB, making it impossible for the AB to function.