Appellate Body Members Research Articles

Can informal judicial norms protect against political pressure?

International tribunals are pulled between a commitment to judicial autonomy and the need to manage their members’ political expectations, lest these rein in the tribunal’s power. We argue that when the formal design of international institutions leaves them exposed to political control, institutional actors can respond by self-imposing constraints to protect themselves from excessive oversight. We examine this phenomenon in the context of the World Trade Organization’s (WTO) Appellate Body (AB), touted until recently as one of the most successful international tribunals in existence. We argue that the early insistence on collegiality and consensus opinions among WTO AB members had the effect of (i) deflecting political blame and (ii) providing cover for adjudicators who did not dissent when governments might have wished them to. As the informal norm of consensus opinion was weakened, political control by WTO members grew stronger, culminating in the United States’s move to paralyze the AB. Weaker actors can thus improve their position under formal rules, yet this requires a strong commitment to a set of informal norms, which comes with its own challenges.

Unleashing the WTO Appellate Body: Strategies for Resolving the Deadlock

The suspension of the Appellate Body has plunged the WTO dispute settlement mechanism into a crisis, and the time and cost for countries to participate in dispute settlement have in-creased significantly. This paper aims at finding ways to mitigate shocks from the shutdown of Appellate Body. This paper analyzes the reasons for the suspension of the Appellate Body from the attitude of developed countries led by the United States. Then it analyzes the challenges faced by developing countries and Least Developed Countries (LDCs) due to the U.S. concerns about the status of developing countries. Lastly, the WTO Secretariat is compared with the IACHR Secretariat to find out the special status of the WTO Secretariat and its problems. Finally, this paper suggests that the voting mechanism should be used to facilitate the selection of Appellate Body members and clarify WTO agreements. In addi-tion, the accountability of the Secretariat should be strengthened. Finally, the WTO should give more support to developing countries and LDCs such as establishing a fund to help them participate more effectively in dispute settlement.

Explaining Japan’s Decision to Join the MPIA: Avoiding the Void

Japan has long been a supporter of and an active participant in the rules-based trading system. This has allowed Japan, like many states, to engage in trade that it regards as fair and stable, liberated from superpower or great power preferences. In recent years, however, the rules-based trading system has faced challenges including from paralysis at the WTO Appellate Body arising from the United States deciding to block the appointment of Appellate Body members, accusing the body of ‘persistent overreaching’. In turn, the lack of a functioning Appellate Body allows WTO cases to be appealed ‘into the void’ of a non-functioning appeals system. Some WTO Members have made alternative temporary arrangements for an appeals system: the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) which, until now, Japan had not chosen to join. Japan’s decision to now join the MPIA could be seen as a departure from its prior approach, but is in fact consistent with its long-held principles. Japan, MPIA, WTO, DSB, Arbitration, DSU, Appellate Body, Void, Trade, Plurilateral

25 Years of Law and Practice at the WTO: Did the Appellate Body Dig its Own Grave?

ABSTRACT After 25 years of the practice of World Trade Organization (WTO) dispute settlement, the system’s ability to continue performing that function has been significantly hampered as a result of the lack of a consensus among WTO Members to (re)appoint Appellate Body Members, resulting in the Appellate Body being defunct as of December 2019. This brief contribution reflects on the various narratives of the causes of the current state of WTO dispute settlement and comments on the role of the Appellate Body. It concludes that no sole responsibility for the current deadlock can be attributed to the Appellate Body. Undoubtedly, the Appellate Body could have decided differently on certain questions. However, asking whether or how the Appellate Body dug its own grave fails to acknowledge the role of WTO Members, collectively and individually, in preserving binding, compulsory WTO dispute settlement providing for appellate review.

Indonesia’s Interests in the World Trade Organization and the Appellate Body Impasse: Questioning the Existence of Special and Differential Treatment

The World Trade Organization’s role in resolving international trade disputes is crucial, particularly in multilateral trade, which continues to grow alongside information disclosure and technology advancements. Dispute settlement systems often depend on the existence of the World Trade Organization’s Appellate Body. However, in 2019, the United States prevented new members from joining this body, resulting in dysfunction and instability. Moreover, in 2020, the term of the last sitting Appellate Body member expired. As members of the World Trade Organization, Indonesia and other developing nations receive preferential treatment, which frequently backfires when dealing with developed nations. The special and differential treatment provided to developing nations is supposed to minimize the distinctions between developed and developing nations. This study identified possible actions that Indonesia and other developing nations could take to put an end to the World Trade Organization’s impasse. To do this, they could use non-alignment diplomacy and waive their special and differential treatment. Both a conceptual approach and a literature review were used in this study.

Consensus Decision-Making and Legislative Inertia at the WTO: Can International Law Help?

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over lawmaking in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of agreements among a subset ofWTO members and, if so, can they be integrated within the current regime absent amendments? Even though consensus decision-making does not necessarily lead to failed negotiations, it is undoubtedly a significant contributory factor when parties hold diverse and unaligned priorities. Contracts signed in the WTO involve increasingly heterogeneous players with diverse priorities. In this article, we argue that the first-best approach to moving away from the current legislative stasis at the multilateral level is to acknowledge that it is high time to consider how to allow an additional degree of ‘variable geometry’ within the multilateral trading system. A textual legal basis for this approach, however, is missing within the WTO legal order. An acceptable alternative would be to acknowledge that the WTO adjudicators (WTO panelists and Appellate Body members), and not the members, will be the ultimate gatekeepers deciding whether agreements among a subset of members can coexist as part of the current multilateral trade framework understood within the context of international law. A necessary precondition for this alternative approach to flourish will, of course, be the resolution of the current judiciary crisis of the WTO. In either scenario, what will matter at the end of the day is that inter se agreements (that is, agreements among a subset of the WTO membership) will not affect the enjoyment of acquired rights by non-participants nor frustrate the objectives of the multilateral trading system.

WTO Members Can Save Their ‘Crown Jewel’: A View from the Arab World

On 10 December 2019, the impending impasse at the WTO Appellate Body (AB) cemented itself after the terms of two of the three remaining AB members expired as the US continued to block new nominations. Recent developments, like the proposals for unilateral countermeasures in trade and the COVID-19 pandemic, have sharpened the need to resolve the AB crisis. Interim solutions have indeed come forward such as the Multi-Party Interim Appeal Arbitration Agreement (MPIA) under Article 25 of the Dispute Settlement Understanding (DSU) with additional interim solutions that include the Director General’s (DG’s) good offices, conciliation, and mediation. This article examines some of the existing proposals, including the difficulties in implementing them. It also describes the Arab countries’ participation at the dispute settlement boday so far as well as views and positions on the practical matters on trade-related disputes resolution processes. It is argued that traditional Arab jurisprudence on dispute resolution can make valuable contributions to bypass the current situation whilst the stalemate at the AB is resolved.

The Multi-party Interim Appeal Arbitration Arrangement: An Update

The World Trade Organization’s Appellate Body (AB) continues to face an existential and operational crisis. Since 2017, the United States has blocked the selection of replacements for retiring AB members. As a result, the Appellate Body no longer has any active members and, therefore, cannot function. In March 2020, a group of 16 WTO members, including the European Union, promoted an initiative to establish a ‘multi-party interim appeal arrangement’ (MPIA), as an alternative to AB proceedings pending a resolution of the AB impasse. The arrangement is intended to allow disputes to be resolved finally by an impartial adjudicating body and to preserve a two-tier WTO dispute settlement system, until the Appellate Body resumes its functions. This Article provides a review of the structure and provisions of the MPIA and an update on how it has worked in practice. To date, no WTO dispute has gone through the MPIA process. However, in two recent disputes, Türkiye, which is not an MPIA party, and the European Union entered into agreements on appeals using a process very similar to the MPIA. One of those disputes has proceeded to the appeal stage under this arrangement. This note also provides the review of the differences between the MPIA and the Türkiye-EU mechanism. The World Trade Organization's disputes, the Dispute Settlement Body, Appellate Body Members, Multi-party interim appeal arrangement, MPIA, structure, appeal arbitration procedure, arbitrators, MPIA arbitrator, outgoing disputes, the first case to use appeal, Article 25 Arbitration, Türkiye-EU appeal arbitration agreement, WTO reform, MC12 outcome.

Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

Finding a Rule-Based Solution to the Appellate Body Crisis: Looking Beyond the Multiparty Interim Appeal Arbitration Arrangement

ABSTRACT The WTO dispute settlement system is in crisis due to the persistent blockage of the appointment of Appellate Body members by the United States. This paper reviews the US criticisms against the Appellate Body and argues that its allegations are unfounded and its approach is wrong. To deal with the US blockage, various proposals have been made, with the most popular being the Multiparty Interim Appeal Arbitration Arrangement (MPIA) set up by several key Members including the European Union and China. After a thorough analysis of the key features of the MPIA from both theoretical and practical perspectives, this paper argues that the MPIA fails to provide a proper solution to the Appellate Body crisis due to its many defects. Instead, the paper suggests the appointment of Appellate Body members based on majority voting at the General Council. This paper concludes by noting that only such a rule-based solution can not only solve the current Appellate Body crisis but also deter similar attempts to sabotage the WTO dispute settlement system in the future.

Reforms for culmination of the deadlock in appellate body of WTO: An agenda of saving the multilateral trading system

The World Trade Organization's (WTO’s) dispute settlement mechanism, known as the "pearl in the crown," is stalled due to United States (U.S.) obstruction, which prevents appellate body members from being ordained. This situation continues, and the WTO’s dispute settlement function is paralyzed since 2019. The WTO has faced a crisis in recent years, and the trade legislation has stagnated. The dispute settlement body was also blocked due to U.S. interference, which led to the failure of the appellate body’s members to be selected. The data has been gathered for this descriptive study using secondary research method, including different newspaper articles and the internet, which were outlined and noted. This paper presents and evaluates several existing proposals on how to get out of the impasse. This paper points out whether the existing WTO members can choose to join or not participate in establishing a new appellate body. On this basis, it makes its own relatively unique proposal, namely, to establish a substantial dispute settlement mechanism outside the WTO, parallel to the existing dispute settlement mechanism, and it demonstrates the legal feasibility of the proposal. Immediately, the states should begin negotiations on the significant agreements required for this new appellate body. It will effectively solve the deadlock in the dispute settlement mechanism caused by the United States, blocking the appointment of members of the appellate body.

Can the Appellate Body Be Saved?

The ‘Walker Paper’ represents a commendable effort to find middle-ground on the World Trade Organization (WTO) Appellate Body, but does not address the US concerns about the Appellate Body’s overreaching in antidumping, countervailing duty, and General Agreement on Tariffs and Trade (GATT) Article XIX ‘escape clause’ disputes, and instead seizes on a series of half-hearted fixes to the long list of concerns in US Trade Representative’s (USTR’s) ‘Report on the Appellate Body of the World Trade Organization’. US concerns about overreaching date back to the Bush 43 and Obama Administrations and are rooted in the Appellate Body’s ‘zeroing’ line of cases. The concerns rest on the conviction of US trade officials who participated in the Uruguay Round negotiations and later served in the Bush 43, Obama, and Trump Administrations, that there was never a WTO agreement to abolish ‘zeroing’. This view was shared by the WTO Secretariat and WTO Panels and underpinned the contentious, decade-long impasse between USTR, the WTO Secretariat, and WTO Panels on the one hand, and the Appellate Body and Appellate Body Secretariat on the other. While the Appellate Body’s overreaching has multiple sources, one is its dismissive approach to negotiating history under Article 32 of the Vienna Convention, and obsessive reliance on the Oxford English Dictionary as a main source of meaning in interpreting the WTO Agreements. Had the Appellate Body taken a more respectful look at the Uruguay Round negotiating history, it would have found no support for efforts to read a broad prohibition on zeroing into terms that dated back to the Kennedy Round Antidumping Agreement, Tokyo Round Antidumping Code, and GATT 1947. The Appellate Body’s overreaching also appears to stem from hubris, as some Appellate Body Members have sought to make their mark on international jurisprudence or serve as saviours of the WTO system. While some in Geneva are clearly hoping the US concerns will disappear once the Biden Administration takes office, these concerns predated Ambassador Lighthizer by over a decade and are shared by both Republicans and Democratic Members of Congress. Accordingly, even if the new Administration were to seize on some variant of the Walker paper as an excuse to placate US allies and trading partners, it’s unlikely to offer a lasting solution, since the same problems will likely recur without serious systemic and structural reforms. World Trade Organization, WTO, Appellate Body, Dispute Settlement Understanding, Dispute Settlement, Antidumping Agreement, Zeroing

Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This article investigates the origins and character of this feature of theWTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to the future operation of the dispute settlement system. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO– a fire alarm thatMembers can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, one that is both politically feasible in the short term and unlikely to have its legal effects disputed is a decision, made by consensus by theMembership, to clarify the relationship between the decision-making authority of the Ministerial Conference and the provisions governing appointment of Appellate Body members. World Trade Organization, Appellate Body, International Dispute Settlement, Institutional Design, Dispute Settlement Body, International Courts

WTO Reform: Back to the Past to Build for the Future

AbstractSince its formation, with a few notable exceptions, WTO members have not been able to negotiate new rules on policies that generate negative international spillovers. The Doha Development Agenda negotiations, launched in 2001, became deadlocked in 2008. Problems extend beyond negotiations – other functions of the WTO are also not performing well. The dispute settlement mechanism, long perceived as the crown jewel of the organization, no longer is operational because of US refusal to appoint new WTO Appellate Body members. Calls for WTO reform have been mounting. This article provides an overview of the WTO reform agenda, drawing on the findings of recent multidisciplinary research to provide context for the papers included in this special issue on trade conflicts, multilateral cooperation and WTO reform.

Appointment with Destiny: Selecting WTO Judges in the Future

AbstractNothing has done more to shake confidence in the World Trade Organization, and create uncertainty in rules‐based international trade, than the demise of the WTO’s Appellate Body (AB). Given the design of the WTO Dispute Settlement Understanding (DSU), in the absence of a functioning Appellate Body, members cannot have confidence in the finality or enforceability of panel rulings. Thus, a fundamental premise of the legal commitments under WTO treaties is undermined. The collapse of the AB is due to a decision of the Trump Administration systematically to block new appointments to fill vacancies. This move, unprecedented in US trade policy in the WTO era, and not supported by any other WTO member, has completely failed as means of pressing the Administration’s complaints about ‘judicial overreach’ in the Appellate Body. This single Trump decision can easily be reversed by the Biden Administration stating that it is prepared to participate in good faith in a new process for selecting AB members. In this article, I suggest how the Appellate Body appointment process might go forward in the current context, addressing concerns of the US and some others about the past performance of the AB.

The Role of Anti-Dumping in the US-China Trade War

The sudden escalation of the US-China trade war has negatively impacted global trade and the WTO, and its effects will last for a long time. This article centres on the US anti-dumping measures against Chinese exports within the trade war. The article attempts to explain the failure of the US trade policies in terms of anti-dumping measures; policies which were found to be inconsistent with the Anti-Dumping Agreement (ADA). Rather than complying with the Appellate Body Reports, the US insisted on using procedures inconsistent with the ADA, such as the zeroing methodology to overprotect the US industries. The US even blocked the appointment of Appellate Body Members and paralysed the WTO’s Dispute Settlement Mechanism. Apart from political and economic reasons, one of the underlying reasons for the US to trigger a trade war with China would be anti-dumping measures. Antidumping measures are designed to balance unfair pricing strategies; however, the US is misusing the measures in order to avoid a trade deficit with China.

A Rule-based Solution to the Appellate Body Crisis, and Why the MPIA Would Not Work

Over the past three years, the United States have been persistently blocking the appointment of members to the WTO Appellate Body, citing various concerns with its alleged “failure to follow the agreed rules”. The US blockage has resulted in an unprecedented crisis of the WTO dispute settlement system, which led to the paralysis of the Appellate Body in December 2019 when its membership was reduced to the last one, and ultimately its death in December 2020 when the term of the last member expired. Initially focusing on the minor procedural errors of specific Appellate Body members, the US criticisms on the Appellate Body has morphed into broader attacks on the substantive jurisprudence and judicial approach of the Appellate Body, as well as the more serious systemic issues on the function of the Appellate Body as an institution. While the US has been gaining more and more sympathizers among the WTO Membership, this paper argues that the US is barking at the wrong tree because most if not all of these problems are not of the Appellate Body’s making. In response to the US complaint, various solutions have been proposed. Currently, the most popular solution seems to be the Multiparty Interim Appeal Arbitration Arrangement (MPIA), set up by a few key Members to provide a makeshift Appellate Body when the real one is not functioning. While recognizing the practical utility of this solution, this paper argues that the MPIA, due to its many defects, cannot provide a proper solution to the Appellate Body crisis. Instead, the paper calls for a rule-based solution, i.e., appointment of Appellate Body members based on majority-voting at the General Council. This paper provides detailed analysis on the legal basis for such a solution, which will not only solve the current Appellate Body blockage but also deter similar attempts in the future.

Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This paper investigates the origins and character of this feature of the WTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to ensure the future operation of the organization. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO – a fire alarm that Members can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, the one that is likely to be both politically feasible in the short term and free from doubt regarding its legal effects is a decision, made by consensus by the Membership, to clarify the relationship between the general decision-making authority of the Ministerial Conference and the provisions governing the appointment of Appellate Body members.

United States—Anti-dumping Measures Applying Differential Pricing Methodology to Softwood Lumber from Canada

This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States’ decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States’ criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.

U.S. Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals

Over the last few years, the United States has been pressuring the World Trade Organization (WTO) to reform the Appellate Body by refusing proposals to fill vacancies. On December 10, 2019, the terms of two Appellate Body members expired, leaving one member left for the seven-member body. This has brought new appeals to a standstill, as an appeal from a panel established by the Dispute Settlement Body must be heard by three Appellate Body members. In February of 2020, the United States elaborated on its complaints about the Appellate Body in a report published by the Office of the United States Trade Representative. In the spring of 2020, in response to the continued U.S. resistance to filling vacancies on the Appellate Body, a group of WTO members established an interim arrangement to handle appeals through arbitration. Also in the spring of 2020, the United States described as invalid a recent Appellate Body report regarding a dispute between Canada and the United States, asserting that none of the three persons who issued the report were in fact bona fide Appellate Body members.