Abstract

The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

Highlights

  • The World Trade Organization’s (WTO’s) dispute settlement system is facing “unprecedented challenges,”[1] with the current U.S government waging a “stealth war”[2] on the Organization’s Appellate Body (AB)

  • All rulings automatically bind parties to a dispute unless rejected by the entire membership. This Dispute Settlement Mechanism (DSM) is often referred to as the “jewel in the crown” of an organization plagued by political division, divisiveness, and malaise.[5]

  • The concerns underpinning the current impasse are well-documented in statements governments make during meetings of the political body that oversees the system: the Dispute Settlement Body (DSB)

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Summary

CAN INTERNATIONAL TRADE LAW RECOVER?

The World Trade Organization’s (WTO’s) dispute settlement system is facing “unprecedented challenges,”[1] with the current U.S government waging a “stealth war”[2] on the Organization’s Appellate Body (AB). The organization’s judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have reached a boiling point In this contribution, I first describe the sources of the current impasse before discussing how the WTO’s adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward. All rulings automatically bind parties to a dispute unless rejected by the entire membership (the so-called “reverse-consensus rule”) This Dispute Settlement Mechanism (DSM) is often referred to as the “jewel in the crown” of an organization plagued by political division, divisiveness, and malaise.[5] Over the past two decades, continued paralysis on the

AJIL UNBOUND
The Current Thorns
Improving Judicial Responsiveness at the WTO
Conclusion
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