A Defense of the Beleaguered WTO Appellate Body



Steve Charnovitz | International Economic Law and Policy Blog

In November 2017, I authored a paper warning that the Trump Administration was seeking to eviscerate World Trade Organization (WTO) dispute settlement. At the same time, I put forward a specific proposal for what the Appellate Body could do to save the Dispute Settlement Understanding (DSU) of the WTO (Steve Charnovitz, “How to Save WTO Dispute Settlement from the Trump Administration, 3 November 2017, https://worldtradelaw.typepad.com/ielpblog/2017/11/how-to-save-wto-dispute-settlement-from-the-trump-administration.html). My proposal was for the Appellate Body to amend its rules to state that in the event three or more vacant appellator slots existed, that the “completion of the appeal” would automatically occur on the same day that any appeal was lodged.  Had the Appellate Body adopted my plan, they could have insulated the WTO dispute system from the impending nightmare scenario of a right of any WTO defendant government to block the adoption of a WTO panel report merely by appealing it to an out-of-business Appellate Body. 

Unfortunately, the Appellate Body did not adopt my rescue plan.

Now, over 18 months later, the WTO continues to struggle with the implications of United States rejectionism against the trading system. In recent weeks, I have noticed an increase in new disturbing trends at the WTO.  I’ve seen well-intentioned WTO member governments offering proposals to rewrite the DSU in an effort to appease the Trump Administration. 

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