“Appellate Body Held Hostage”: Is Judicial Activism at Fair Trial?

Mexico - 1 March 2019

Trade topics: International Trade Law

Note: All views or omissions are author's own. This paper is solely for academic exchange purposes, and it does not reflect or suggest WTO's view on this or any other matter at all.

Abstract: The World Trade Organization (WTO) Dispute Settlement System (DSS) is in peril. The Appellate Body (AB) is being held as a ‘hostage’ by the very architect and the most frequent user of WTO DSS, the United States of America. This will bring the whole DSS to a standstill as the inability of AB to review the appeals will have a kill-off effect on the binding value of Panel rulings. If the most celebrated DSS collapses, the members would not be able to enforce their WTO rights. The WTO-inconsistent practices and violations would increase and remain unchallenged. The rights without remedies would soon lose their charm, and we might witness a higher and faster drift away from multilateral trade regulation. This is a grave situation. This piece is an academic attempt to analyse and diffuse the key points of criticism against AB. A comprehensive assessment of reasons behind this criticism could be a starting point to resolve this gridlock. The first part of this Article investigates the reasons and motivations of the US behind these actions as we cannot address the problems without understanding them in a comprehensive manner. The second part looks at this issue from a systemic angle as it seeks to address the debate on whether WTO resembles common or civil law, as most of the criticism directed towards judicial activism and overreach is “much ado about nothing”. The concluding part of this piece briefly looks at the proposals already made by scholars to resolve this deadlock, and it leaves the readers with a fresh proposal to deliberate upon.

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