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The Application of “The Judicial Trilemma” to the WTO Dispute Settlement System

  • Isabelle Van Damme (a1)
Abstract

Dunoff and Pollack's timely article on The Judicial Trilemma offers a constructive paradigm through which to examine and assess the design and the behavior of international courts and tribunals and, in particular, their members at a time when, despite the increasing judicialization of international law and relations, the legitimacy and function of such courts and tribunals are being questioned in political and public discourse. The focus of this response is on the application of the paradigm to the World Trade Organization (WTO) dispute settlement system, which is one of the international courts and tribunals examined by the authors.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Jeffrey L. Dunoff & Mark A. Pollack, The Judicial Trilemma, 111 AJIL 225 (2017).

3 Id.

4 Id.

5 See Letter of All Living, Former WTO Appellate Body Members (31 May 2017); the letter of all current Appellate Body members, dated 18 May 2016, is included in Appellate Body, Annual Report for 2016, Annex 3, WTO Doc. WT/AB/27 (Mar. 2017).

7 Dunoff & Pollack, supra note 1, at 260–71.

8 At the time of drafting this essay, there are two vacancies as a result of the expiry of the second term of office of one Appellate Body member and the unexpected resignation of a recently appointed Appellate Body member. There will be a third vacancy at the end of 2017 when another Appellate Body member's second term expires. WTO members have been divided as to whether procedures for replacing the two Appellate Body members whose second term expires in 2017 should be linked.

9 See, e.g., Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, WTO Doc. JOB/DSB/1 and Addenda (July 11, 2016 and July 11, 2017) and discussions at the most recent DSB meeting of 20 July 2017, documented in the Report of the DSB meeting of July 20, 2017, World Trade Organization.

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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