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From the WTO's Crown Jewel to its Crown of Thorns

  • Cosette D. Creamer (a1)

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The World Trade Organization's (WTO's) dispute settlement system is facing “unprecedented challenges,” with the current U.S. government waging a “stealth war” on the Organization's Appellate Body (AB). The tactics of this war include procedural objections to the (re)appointment of AB members—those individuals selected to sit in Geneva and rule on trade disputes. Countries have blocked appointments in the past, but the Trump administration's strategy to effectively shut down the AB's ability to hear disputes—by bringing the number of sitting judges below the required three to hear a dispute—represents a new development. In short, the trade regime is dying a slow, piecemeal death, with American challenges “killing the WTO from the inside.” Yet the sources of this crisis are not new. The organization's judges and bureaucracy have deftly managed simmering discontent for nearly two decades, but we have now reached a boiling point. In this contribution, I first describe the sources of the current impasse before discussing how the WTO's adjudicative bodies have sought to address government dissatisfaction in the past and the implications of such judicial responsiveness for reform of the system moving forward.

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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.

Footnotes

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This publication was made possible (in part) by a grant from Carnegie Corporation of New York and (in part) was drafted for the Perry World House 2018 Global Order Colloquium. The statements made and views expressed are solely the responsibility of the author.

Footnotes

References

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1 Ujal Singh Bhatia, Statement by Appellate Body Chair (June 22, 2018).

3 Eduardo Porter, Trump's Endgame Could Be the Undoing of Global Rules, N.Y. Times (Oct. 31, 2017).

4 John H. Jackson, The WTO ‘Constitution’ and Proposed Reforms: Seven ‘Mantras’ Revisited, 4 J. Int'l Econ. L. 67, 72 (2001).

5 WTO Press Release, WTO Disputes Reach 400 Mark, Press/578 (Nov. 6, 2009).

6 Terrence P. Stewart, The Broken Multilateral Trade Dispute System 3 (Asia Society Policy Institute, Feb. 7, 2018).

7 Office of the U.S. Trade Representative [U.S.T.R.], 2018 Trade Policy Agenda of the President of the United States on the Trade Agreements Program 22-3 (March 2018).

8 Harlan Grant Cohen, International Order between Governance and Contract, Paper prepared for the Perry World House 2018 Global Order Colloquium.

10 A number of innovative proposals have been developed to address these technical and procedural issues, but I bracket these thorns herein. See, e.g., Transition on the WTO Appellate Body: A Pair of Reforms? (IIEL Issue Brief 2/2018).

11 See, e.g., Stewart, supra note 6, at 5-9.

12 European Commission, Concept Paper: WTO Modernisation, (Sept. 2018); U.S.T.R., supra note 7, at 26-28.

13 Robert McDougall, Crisis in the WTO: Restoring the WTO Dispute Settlement Function 7 (CIGI Papers No. 194, Oct. 2018).

15 Cosette D. Creamer, Between Law and Politics: Judicial Balancing of Trade Authority in the WTO, Unpublished Manuscript (2018); Robert Howse, The World Trade Organization 20 Years On: Global Governance by Judiciary, 27 EJIL 9, 11 (2016).

16 Daniel Bodansky, The Concept of Legitimacy in International Law, in Legitimacy in International Law 309, 313 (Rüdiger Wolfrum & Volker Röben eds., 2008).

17 Cosette D. Creamer & Zuzanna Godzimirska, (De)Legitimation at the WTO Dispute Settlement Mechanism, 49 Vand. J. Transnat'l L. 275, 320 (2016).

20 Bhatia, supra note 1. See also Gregory Shaffer et al., The Extensive (But Fragile) Authority of the WTO Appellate Body, 79 L. & Contemp. Probs. 237 (2016).

21 For summaries, see Tetyana Payosova et al., The Dispute Settlement Crisis in the World Organization: Causes and Cures (PIIE Policy Brief 18-5, Mar. 5, 2018); McDougall, supra note 13, at 12-18.

22 For a similar proposal, see Cosette D. Creamer & Zuzanna Godzimirska, Deliberative Engagement Within the World Trade Organization: A Functional Substitute for Authoritative Interpretations, 48 NYU J. Int'l L. & Pol'y 413 (2016).

23 Stone Sweet & Brunell, supra note 18.

24 Another proposal that would also enhance this feedback mechanism is the creation of “legislative remand” procedures, under which the AB could be called on to “submit issues of legal uncertainty arising on appeal to respective WTO committees for further discussion and negotiation.” See Payosova et al., supra note 21, at 1.

25 James Bacchus, Might Makes Unright: The American Assault on the Rule of Law in World Trade (CIGI Papers No. 173, May 2018).

26 Another critical area of reform relates to the AB appointment process, though reforms in this area must be coupled with those that address institutional imbalances and judicial responsiveness. On judicial independence and accountability, see Jeffrey L. Dunoff & Mark A. Pollack, The Judicial Trilemma, 111 AJIL 225 (2017).

28 Jan Pieter Kuijper, What to Do About the US Attack on the WTO Appellate Body?, Int'l Econ. L. & Pol'y Blog (Nov. 15, 2017).

29 Scott Anderson et al., Using Arbitration Under Article 25 of the DSU to Ensure the Availability of Appeals (CTEI Working Paper CTEI-017-17, 2017).

This publication was made possible (in part) by a grant from Carnegie Corporation of New York and (in part) was drafted for the Perry World House 2018 Global Order Colloquium. The statements made and views expressed are solely the responsibility of the author.

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