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Independence at the Top of the Triangle: Best Resolution of the Judicial Trilemma?

  • Jennifer Hillman (a1)
Abstract

World Trade Organization (WTO) members have, once again, been unable to agree on the appointment of new members to the Appellate Body (AB) in a timely fashion, as one member's term expired on June 30, 2017, another member resigned in August 2017, and a third member's term will expire in December 2017, with no consensus on a process to fill those posts. The 2017 standoff follows on the heels of a fractious debate during the summer of 2016 over the United States’ decision to block the reappointment of AB member Sueng Wha Chang of Korea to a second term. Given that the AB has just seven members, the inability to quickly appoint new members to replace those whose terms have expired only adds to the difficulty of rendering decisions within the tight time frames called for in the WTO rules.

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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).

2 Id. at 234, noting that WTO AB members serve a four-year term that may be renewed once; judges at the Court of Justice of the European Union serve a six-year, renewable term; International Court of Justice and International Tribunal for the Law of the Sea judges serve a nine-year, renewable term; and European Court of Human Rights and International Criminal Court judges serve a nine-year, nonrenewable term.

3 For example, the sixteen judges from eleven international courts gathered at the Brandeis Institute for International Judges session in 2007 noted that “although participants believe that most international judges do not alter their conduct in order to stay on the bench, the threat that re-election pressures pose to their judicial independence—or at least its appearance—is too great to be ignored.” Brandeis Institute for International Judges, Independence and Interdependence: The Delicate Balance of International Justice (2007).

4 At the AB, the process of reappointment begins with the Chair of the Dispute Settlement Body (which includes all members of the WTO) determining whether a sitting member is willing to serve a second term. If yes, the Chair then begins a process of consultations with the WTO members. While logically those consultations may begin with the home state of the AB member seeking reappointment, a formal renomination is not required. As such, the accountability for AB members flows to and from all WTO members, not just the home state.

5 As noted, decisions written by a small bench, such as the three members of a division at the AB, allow states to “easily speculate as to the identity of [a formally anonymous dissent's] author.” Dunoff & Pollack, supra note 1, at 267.

6 The WTO Rules establish a ninety-day maximum time frame, which until recently had been met for all but the largest and most complex of appeals. Since 2012, however, the number, length, and complexity of appeals began to overwhelm the system such that most appeals exceed the ninety-day time frame.

7 Dunoff & Pollack, supra note 1, at 257.

8 Id. at 271.

10 See, e.g., Minutes of the WTO Dispute Settlement Body, WTO Doc. WT/DSB/M/153 para.99 (July 2003) and WTO Doc. WT/DSB/M/192 para. 57 (June 2005).

11 WTO Committee Recommends Graham, Bhatia for Appellate Body Slots, Inside U.S. Trade (Nov. 11, 2011).

12 For Appellate Body Candidates, USTR Prioritized Willingness to Dissent, Inside U.S. Trade (Sept. 9, 2011). USTR apparently criticized Hillman for not issuing dissents in trade remedy cases notwithstanding the fact that the only case directly challenging U.S. trade remedy practices on which Hillman sat as a member of the division involved the AB upholding a U.S. determination to impose safeguards on imports of tires from China.

13 For example, both Hillman and departing AB member Lilia Bautista commented in their respective farewell remarks on the desirability of a longer, nonrenewable term for AB members. Appellate Body, Annual Report for 2011, at 74 (Hillman) and 75 (Bautista), WTO Doc. WT/AB/17 (June 13, 2012).

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