Captain America and the Tarnishing of the Crown: The Feud Between the WTO Appellate Body and the USA

Abstract

The Appellate Body is considered the jewel in the crown of the WTO dispute settlement system. However, since it blocked the re-appointment of Jennifer Hillman to the Appellate Body, the United States has become increasingly assertive in its efforts to control judicial activism at the WTO. This was a hot topic in the corridors at the eleventh WTO Ministerial Conference, in Buenos Aires. This article examines judicial activism in the Appellate Body, and discusses the efforts of the United States to constrain the Appellate Body in this context. It also analyses US actions and proposals regarding the dispute settlement systems of the NAFTA, in order to place the WTO debate in a wider context. It concludes that reforms are necessary to break the negative feedback loop between deadlock in multilateral trade negotiations and judicial activism.