The Impasse in the Appointment of Judges to the WTO Appellate Body: Are There Any Viable Solutions?

Abstract

The WTO dispute settlement system, often described as the jewel in the crown of the WTO is fast skidding of the path of success due to the US vetoing of appointment of judges to the Appellate Body – the second tier appellate review organ. With the seven-member body now depleted to three, the dispute settlement system and possibly the entire WTO legal system is tethering on the precipice of a constitutional crisis. This has been made even more serious as two of the remaining three members of the Appellate Body – Thomas R. Graham and Ujal Singh Bhatia will complete their second unrenewable terms on 10 December 2019. This article considers viable options for appointing judges to the Appellate Body outside the very stringent rules on consensus established in Article 2:4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding or DSU). It also explores a possible proactive use by the Ministerial Conference and the General Council, of the power to adopt authoritative interpretations under Article IX:2 of the WTO Agreement to help break the current impasse in the appointment of judges to the Appellate Body.