Meditations in an Emergency: The Appellate Body Deadlock – What It Is, Why It Is a Problem, and What to Do About It

Abstract

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.