The World Trade Organization Appellate Body (AB) is an interesting creature. It was not meant to hold the position it currently does. Yet, it is a part of the most successful system of international dispute settlement. Its ‘faceless, foreign judges’ (James Bacchus, Reflections of a Faceless Foreign Judge, in Trade and Freedom (Cameron May Publishers 2004)) have developed jurisprudence that is staggering in size and complexity. The AB is loved by some, sharply criticized by others. Despite having a ‘permanent seat’ on the AB, the United States (US) is (and has been) unhappy. It is currently blocking the selection process for these faceless judges, and will not budge till its concerns are addressed. Time is running out for the AB and soon it will not be able to function. This article examines US’s objections and the role of the AB It then proposes a way forward, in case the AB does end up drawn and quartered.
The recent Seals case at the WTO exposed a phenomenon long hovering on the horizon: national measures enacted for purposes which, in operation, conflict with one another. This essay is an inquiry into the nature of such measures. It explains why legal tests germane to single-purpose measures cannot (and should not) be transposed onto complex, contradictory multi-purpose ones. The essay advocates for relinquishment of some old ideas of the Appellate Body, and for the development of fresh ones.
In a time when WTO-naysayers are predicting its obsolescence, the organization’s long-term survival largely depends on robust interpretation developed by its judiciary – particularly the Appellate Body (“AB”). It is now well recognized that conduct of sovereign states in good faith is essential for the proper functioning of any international legal order. WTO law is no different. Hence, it imperative for the AB to ensure that “good faith” is not merely a phrase in treaty text. The AB ruling in the recent case regarding Peru’s Price Range System (PRS) is significant in this regard. This paper seeks to discuss the implications that the case may have for the WTO’s future in terms of the so-called “extensive yet fragile” authority of its AB.
In times of turbulence for international trade, some issues stand out as ‘cutting-edge’. Trade in data, and data-related services are a part of those ‘frontier’ conversations. To this end, a peculiar kind of measure has emerged since 2013: data-localization requirements (DLRs) mandate that only domestic service suppliers can process data of the citizens of a particular country. Several prominent players in the trading landscape, including the United States and China, have imposed such measures. Similar legislation has been enacted by the Russian Federation (RF), which is analysed herein. Before assessing measures imposed by the RF, the authors set out the landscape of the General Agreement on Trade in Services (GATS), particularly the obligations relating to Market Access under Article XVI. Drawing heavily on WTO jurisprudence, the authors demonstrate that the RF measures in question fall within the scope of the GATS and violate the RF’s obligations under Article XVI; and further, that such violation cannot be justified under ArticlesXIV or XIVbis. To this end, the authors contribute to the existing literature on a subject which is becoming exponentially significant as time moves on.
World Trade Organization; General Agreement on Trade in Services; Market Access; Cross-border Supply; National Treatment; General and Security Exceptions; Personal Data, Processing of Personal Data, Data Localization Requirements; and Russian Federation
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