Appointment with Destiny: Selecting WTO Judges in the Future

Abstract

Nothing has done more to shake confidence in the World Trade Organization, and create uncertainty in rules-based international trade, than the demise of the WTO's Appellate Body (AB). Given the design of the WTO Dispute Settlement Understanding (DSU), in the absence of a functioning Appellate Body, members cannot have confidence in the finality or enforceability of panel rulings. Thus, a fundamental premise of the legal commitments under WTO treaties is undermined. The collapse of the AB is due to a decision of the Trump Administration systematically to block new appointments to fill vacancies. This move, unprecedented in US trade policy in the WTO era, and not supported by any other WTO member, has completely failed as means of pressing the Administration's complaints about 'judicial overreach' in the Appellate Body. This single Trump decision can easily be reversed by the Biden Administration stating that it is prepared to participate in good faith in a new process for selecting AB members. In this article, I suggest how the Appellate Body appointment process might go forward in the current context, addressing concerns of the US and some others about the past performance of the AB.

You’re Fired! International Courts, Re‐contracting, and the WTO Appellate Body during the Trump Presidency

“…In that regard, institutional reforms at the WTO are critical to the survival of multilateralism and the liberal international trade system (Howse, 2021). Politicization and state counter‐institutionalization could in the long‐term lead to a deepening of global governance if they are met with substantial institutional reforms that accommodate for changing global environments and power shifts in the international system (Zürn, 2018).…”

“…The crisis not only threatens to wane the compliance of member states and the enforcement of obligations to the organization's regulatory framework, but it also seriously undercuts the hopes for future negotiations at the WTO (Hoekman & Mavroidis, 2021). Signs of this threat have already surfaced, with various members proposing an alternative institutional framework for interstate trade-related appeals (Howse, 2021). Whether this represents a challenge to the centrality of the WTO in the global trading system is yet to be seen.…”

“…As of yet no remarks have been made by the Biden administration regarding a change in direction or proposals for reforming the institution. This represents continuity in the country's stance towards the Appellate Body despite the public support for multilateralism expressed by President Biden (Howse, 2021).…”

TRIPS Pluralism

“…Finally, one should note that as the composition of the post-2020 Appellate Body is likely to be entirely different from its former self, it is difficult to predict the exact precedential weight that a future Appellate Body will give to what does seem like emerging pluralism in both TRIPS and non-TRIPS cases, and what role it will allow non-WTO instruments to play on this vast, horizontal stage of international law. 176 Overall, however, it seems that the tendency to interface by interpretation trade and trade-enforceable norms with broader policy concerns, especially in the public health field supported by the text of the Doha Declarationformally described as 'subsequent agreement' under the VCLT 177 is a path already well-marked should the future Appellate Body members wish to follow it.…”

Institutional leadership during tough times

“…As of yet no remarks have been made by the Biden administration regarding a change in direction or proposals for reforming the institution. This represents continuity in the country's stance towards the Appellate Body despite the public support for multilateralism expressed by President Biden (Howse, 2021).…”