Judicial Authority in WTO Law: A Commentary on the Appellate Body's Decision in China-Rare Earths

Abstract

The recent decision of the World Trade Organization’s Appellate Body in China-Rare Earths has put an end to the high-profile disputes over China’s policies to restrict the exportation of rare earths and other raw materials. China has lost the case, and is expected to remove the export restrictions in compliance with the WTO decision. Despite resolution of the disputes, however, the Appellate Body’s decision has failed to clarify a systemic issue at the heart of the disputes, namely, the relationship between the WTO agreements on one hand, and an accession protocol whose provisions modify the application of the WTO agreements to the acceded Member, on the other. In addition, the Appellate Body chose not to address the dissenting opinion from the Panel below and the views of several third parties that disagreed with its prior ruling on the same legal issue in China-Raw Materials, thereby forgoing the opportunity to reexamine and possibly reverse that problematic ruling. The Appellate Body’s decision thus raises some serious issues about judicial authority in WTO law.