Disruptive Construction or Constructive Destruction? Reflections on the Appellate Body Crisis

Abstract

Over the past few months, the blockage of the Appellate Body appointment process by the United State (U.S.) has emerged as the biggest existential threat to the World Trade Organization (WTO). In response to the criticisms from other WTO Members, the U.S. justified its action as a way to raise people’s attention on long-standing problems in the Appellate Body (AB). Are the U.S. criticisms valid? Even if assuming that the U.S. allegations are correct, is the specific approach that the U.S. has taken legitimate? Drawing from both the treaty text and jurisprudence of WTO law, this chapter argues that the U.S. criticisms, especially those concerning the systemic issues in WTO dispute settlement, are deeply flawed. Moreover, this chapter also argues that, regardless of the validity of the substantive claims of the U.S., the U.S. has chosen the wrong approach by holding hostage the entire AB appointment process. This chapter concludes with practical suggestions on how to overcome the AB crisis and restore its functions.