Disruptive construction or constructive destruction? Reflections on the Appellate Body crisis

Publication Type

Book Chapter

Version

acceptedVersion

Publication Date

1-2020

Abstract

Over the past few months, the blockage of the Appellate Body appointment process by the United State (hereinafter U.S.) has emerged as the biggest existential threat to the World Trade Organization (hereinafter WTO). In response to the criticisms from other WTO Members, the U.S. justified its action as a way to raise people’s attention on long-standing problems in the Appellate Body (hereinafter AB). Are the U.S. criticisms valid? Even if assuming that the U.S. allegations are correct, is the specific approach that the U.S. has taken legitimate? Drawing from both the treaty text and jurisprudence of WTO law, this Chapter argues that the U.S. criticisms, especially those concerning the systemic issues in WTO dispute settlement, are deeply flawed. Moreover, the paper also argues that, regardless of the validity of the substantive claims of the U.S., the U.S. has chosen the wrong approach by holding hostage the entire AB appointment process. The paper concludes with practical suggestions on how to overcome the AB crisis and restore its functions.

Keywords

Appellate Body, Dispute Settlement, Stare Decisis, Precedent, Common Law, Civil Law

Discipline

International Trade Law

Publication

The Appellate Body of the WTO and its reform

Editor

Chang-fa Lo, Jinji Nakagawa, and Tsai-yu Lin

First Page

215

Last Page

238

ISBN

9789811502552

Identifier

10.1007/978-981-15-0255-2_13

Publisher

Springer

City or Country

Cham

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1007/978-981-15-0255-2_13

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