Changes in the jurisprudence of the WTO Appellate Body during the past twenty years

Abstract

Purpose– This paper aims to examine changes in the jurisprudence of the World Trade Organization Appellate Body in three areas of law (judicial economy, the identification of the measure to be examined under Article XX of the General Agreement on Tariffs and Trade and other duties and import charges), and concludes that the Appellate Body failed to acknowledge and cogently explain in each of these areas, the changes it made.Design/methodology/approach– The paper asks two key questions: what has the Appellate Body done when its own rulings in past cases stood in the way of a legally sound ruling in a new case, and how should it handle such instances in the future?Findings– The paper concludes that all changes in jurisprudence reduce predictability, but that predictability suffers even more when the changes are made in disguise because panels and Members then receive confused or conflicting normative signals.Originality/value– The paper argues that the Appellate Body should seek consistency of jurisprudence wherever possible. It should handle changes in jurisprudence more transparently and adopt internal procedures that make the need for them less likely.