WTO Appellate Body Without Legitimacy?: The Criticism of the Dispute Settlement System and the Response of the WTO Member States

Abstract

Is there any practical value to international agreements without enforcement instruments? And can the multilateral rules of the world trade system hold the trust of the Member States, so that they continue to adhere to the mutual benefits and obligations under WTO law – even if the WTO dispute settlement system is totally or even partially incapacitated? One of the key achievements of the Uruguay Round was that the Member States provided the world trade system with a dispute settlement system. However, this is increasingly being challenged: last December, the USA continued to withhold its consent for the required replacement of vacant positions, thus rendering the WTO Appellate Body indefinitely unable to carry out its function. The report by the US Trade Representative seeks to justify this with a central statement claiming that the Appellate Body lacks legitimacy. This article discusses the different viewpoints on the future shape of WTO dispute settlement. The author argues that the causes of the ‘blockade’ in WTO dispute settlement are not, as some parties maintain, deficiencies in the dispute settlement system and its practice. Rather, the ‘blockade’ should be viewed as the result of causes outside of the dispute settlement process itself. In a radically changed political and trade environment, an increasingly important view is becoming established, according to which the current world trade system, with its multilateral liberalization concept, is less and less able to satisfy significant economic interests of important Member States. Consequently, the WTO is receiving ever diminishing support – but is there any sign that changing the multilateral framework will allow it to adapt to the changing conditions? World Trade System, Multilateralism, Appellate Body, Dispute Settlement, US Trade Representative, Blockade, Dispute Settlement Body, Rules and Procedures Governing the Settlement of Disputes, China, Emerging Countries, Belt and Road Initiative, Biden-Presidency, WTO Security Exceptions,