Publication Type
Journal Article
Version
publishedVersion
Publication Date
12-2019
Abstract
Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.
Discipline
Comparative and Foreign Law | International Trade Law
Research Areas
Asian and Comparative Legal Systems
Publication
Journal of World Trade
Volume
53
Issue
6
First Page
951
Last Page
978
ISSN
1011-6702
Identifier
10.2139/ssrn.3418737
Publisher
Kluwer Law International
Citation
ZHOU, Weihuan and GAO, Henry S..
‘Overreaching’ or ‘Overreacting’? Reflections on the judicial function and approaches of WTO appellate body. (2019). Journal of World Trade. 53, (6), 951-978.
Available at: https://ink.library.smu.edu.sg/sol_research/3048
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.