WTO Appellate Body Overreach and the Crisis in the Making: A View from the South

  • R. Rajesh BabuEmail author


The WTO Appellate Body is facing an existential crisis that threatens to impair the institutional edifice of the entire multilateral trading system. The immediate reason for the crisis is the US blocking of the appointment and reappointment of the Appellate Body members on the ground that the Appellate Body has exhibited a pattern of “judicial over-reaching” by going beyond the strict bounds of permissible interpretation thereby indulging in judicial law-making. Are these allegations founded on facts and could this be another effort by the US to dismantle legitimately established multilateral institutions/processes? This chapter views that while one may concede the US blockade as largely motivated by self-interest, an analysis of the WTO jurisprudence is replete with occasions where the panels and the Appellate Body have misused their discretion and improperly engaged in creating new WTO rules and procedures through techniques of “filling legal gaps”, “completing the analysis”, or “clarifying ambiguity”. This trend has been viewed by a large section of the WTO Members and trade scholars as detrimental to organisational legitimacy of the WTO. This chapter also argues that the current crisis, though precipitated by the US self-interest, offers an opportunity for the WTO member states and the Appellate Body members to introspect and restore democratic deficit and prevent judicial overreach. This chapter also perceives that the current crisis also owes to the inability of WTO political bodies to check and correct actions of other WTO bodies that have undermined the state-centric nature of the WTO law-making.


WTO Appellate Body crisis WTO judicial activism WTO interpretation and developing countries 


  1. Ahlborn C, Pfitzer JH (2009) Transparency and public participation in WTO dispute settlement. Center for International Environmental Law. Accessed 7 May 2019
  2. Anand RP (1962) Attitude of the “New” Asian-African countries towards the international court of justice. Int Stud 4(1):119–132CrossRefGoogle Scholar
  3. Anand RP (1965) The role of individual and dissenting opinions in international adjudication. Int Comp Law Q 14:788–808CrossRefGoogle Scholar
  4. Anand RP (1969) The international court of justice and impartiality between nations. In: Studies in international adjudication, Chap. 4. Vikas PublicationGoogle Scholar
  5. Babu R (2010) Interpretation of the WTO agreements, democratic legitimacy, and the developing nations. Indian J Int Law 50(1):45–90Google Scholar
  6. Babu R (2016) Decision-making in the WTO: from negotiated law-making to judicial law-making. In: Chaisse J, Lin T-Y (eds) A “liber amicorum”: Mitsuo Matsushita. A critical assessment of the international economic law and governance. Oxford University PressGoogle Scholar
  7. Baschuk B (2018) U.S. rejects the EU’s trade reform proposal, putting WTO at risk. Accessed 7 May 2019
  8. Bello JH (1996) The WTO dispute settlement understanding: less is more. Am J Int Law 90:416–418CrossRefGoogle Scholar
  9. Bonzo Y (2014) Public participation and legitimacy in the WTO. Cambridge University PressGoogle Scholar
  10. Bown C (2005) Participation in WTO dispute settlement: complainants, interested parties and free riders. World Bank Econ Rev 19(2):287–310CrossRefGoogle Scholar
  11. Broude T (2004) International governance in the WTO: judicial boundaries and political capitulation. Cameron May, LondonGoogle Scholar
  12. Chimni BS (1999) India and ongoing review of WTO dispute settlement system. Econ Political Wkly 34(5):264–267Google Scholar
  13. Colares JF (2009) A theory of WTO adjudication: from empirical analysis to biased rule development. Vanderbilt J Transnatl Law 42:383Google Scholar
  14. Cottier T, Takenoshita S (2003) Decision-making and the balance of powers in WTO negotiations: towards weighted voting in legislative response. Aussenwirtschaft 59:171–214Google Scholar
  15. Cottier T, Takenoshita S (2008) Decision-making and the balance of powers in WTO negotiations: towards supplementary weighted voting. In: Griller S (ed) At the crossroads: the world trade system and the Doha Round. Springer, pp 182–229Google Scholar
  16. Davey WJ (2002) A permanent panel body for WTO dispute settlement: desirable or practical? In: Kennedy DLM, Southwick JD (eds) The political economy of international trade law: essays in honour of Robert E. Hudec. Cambridge University Press, Cambridge, p 500Google Scholar
  17. Desierto D (2015) Public policy in international economic law: the ICESCR in trade, finance, and investment. Oxford University PressGoogle Scholar
  18. Dube M (2012) The way forward for the WTO: reforming the decision-making process. South African Institute of International Affairs Occasional Papers, p 118Google Scholar
  19. Ehlermann CD, Ehring L (2005a) The Authoritative Interpretation under the Article IX:2 of the WTO Agreement: Current Law, Practice and Possible Improvements. J Int Econ Law 8(4):803–824Google Scholar
  20. Ehlermann CD, Ehring L (2005b) Decision-making in the World Trade Organization: is the consensus practice of the World Trade Organization adequate for making, revising and implementing rules on international trade? J Int Econ Law 8:51–75CrossRefGoogle Scholar
  21. Ehlermann CD, Ehring L (2006) The authoritative interpretation under the Article IX:2 of the WTO agreement: current law, practice and possible improvements. In: Georgiev D, van der Borght K (eds) Reform and development of the WTO dispute settlement system. Cameron May, London, pp 153–176Google Scholar
  22. Guan W (2014) Consensus yet not consented: a critique of the WTO decision-making. J Int Econ Law 17:77–104CrossRefGoogle Scholar
  23. Hoekman B (2014) Global trade governance. In: Weiss TG, Wilkinson R (eds) International organization and global governance. Routledge, pp 552–563Google Scholar
  24. Hoekman B, Mavroidis PC (2006) WTO dispute settlement, transparency and surveillance. World Econ 23(4):527–542CrossRefGoogle Scholar
  25. Holmes R et al. (2003) Emerging trends in WTO dispute settlement: back to the GATT? World Bank policy research working paper no. 3133, World Bank, Washington, DCCrossRefGoogle Scholar
  26. Hudec RE (1993) Enforcing international trade law: the evolution of the modern GATT legal system. Butterworth Legal PublishersGoogle Scholar
  27. Hudson MO (1950) The twenty-eighth year of the world court. Am J Int Law 44:1–36CrossRefGoogle Scholar
  28. Ihara J (2018) Reflection on the WTO Dispute Settlement Body—developments in 2017. Accessed 7 May 2019
  29. India’s Submission to the DSB Special Session on the Review of the DSU. Proposal by India, Terms of Appointment of Appellate Body, WT/DSB/W/17 (Nov 1999)Google Scholar
  30. Jackson JH (2006) Sovereignty, the WTO and changing fundamentals of international law. Cambridge University PressGoogle Scholar
  31. Kapoor I (2004) Deliberative democracy and the WTO. Rev Int Political Econ 11(3):522–541CrossRefGoogle Scholar
  32. Kelly JP (2002) Judicial activism at the World Trade Organization: developing principles of self-restraint. Northwest J Int Law Bus 22:353–387Google Scholar
  33. Kelly JP (2008) International law and the Shrinking space for politics in developing countries. Widener law Sch legal studies research paper series no. 08-31. Accessed 7 May 2019
  34. King LA (2003) Deliberation, legitimacy, and multilateral democracy. Governance 16(1):23–50CrossRefGoogle Scholar
  35. Lewis MK (2006) The lack of dissent in WTO dispute settlement. J Int Econ Law 9(4):903–916CrossRefGoogle Scholar
  36. Matsushita M (2006) “Sovereignty” issues in interpreting WTO agreements: the Sardines case and Article 2.4 of the TBT agreement. In: Georgiev D, van der Borght K (eds) Reform and development of the WTO dispute settlement system. Cameron May, London, pp 191–200Google Scholar
  37. Mora MM (1993) A GATT with teeth: law wins over politics in the resolution of international trade disputes. Columbia J Transnatl Law 31:108–180Google Scholar
  38. Narlikar A (2001) WTO decision-making and developing countries. Working Paper, South Centre. Accessed 7 May 2019
  39. Perdikis N, Read R (2005) The WTO and the regulation of international trade: recent trade disputes between the EU and the U.S. Edward Elgar, UKGoogle Scholar
  40. Raghavan C (2000) The world trade organisation and its dispute settlement system: tilting the balance against the South. Third world network, trade and development series No. 9. Accessed 7 May 2019
  41. Ragosta J, Joneja N, Zeldovich M (2003) WTO dispute settlement: the system is flawed and must be fixed. Int Lawyer 37:744–745Google Scholar
  42. Reich A (2017) The effectiveness of the WTO dispute settlement system: a statistical analysis. European University Institute, Department of Law, EUI Working Paper LAW 2017/11. Accessed 7 May 2019
  43. Shahabudeen M (1996) The World Court at the Turn of the Century. In: Muller AS, Rai D, and Thuránszy JT (eds) The international court of justice: its future role after fifty years. The Hague, pp 3–29Google Scholar
  44. Shihata IFI (1965) The attitude of new states toward the international court of justice. Int Organ 19(2):203–222CrossRefGoogle Scholar
  45. Singh R (2008) The World Trade Organization and legitimacy: evolving a framework for bridging the democratic deficit. J World Trade 42(2):347–365Google Scholar
  46. Statement as delivered by Ambassador Dennis Shea, Deputy U.S. Trade Representative and U.S. Permanent Representative to the WTO. Accessed 7 May 2019
  47. Statement of Jamaica at the DSB Meeting, Minutes of the DSB Meeting Held on 27 January 2000, WT/DSB/M/74 (22 Feb 2000)Google Scholar
  48. Trachtman J (2000) International trade as a vector in domestic regulatory reform: discrimination, cost-benefit analysis, and negotiations. Fordham Int Law 24:726–743Google Scholar
  49. Umbricht GC (2001) An ‘Amicus Curiae Brief’ on Amicus Curiae Briefs at the WTO. J Int Econ Law 4:785–786CrossRefGoogle Scholar
  50. Von Bogdandy A (2001) Law and politics in the WTO—strategies to cope with a deficient relationship. Max Planck Yearb UN Law 5:611–674Google Scholar
  51. Wolfe R (2005) Decision-making and transparency in the ‘Medieval’ WTO: does the sutherland report have the right prescription? J Int Econ Law 8(3):631–645CrossRefGoogle Scholar
  52. WTO Press Releases (2009) WTO disputes reach 400 mark press/578. Accessed 7 May 2019
  53. WTO (2018) Annual report of the Dispute Settlement Body, WT/DSB/76 (30 Nov 2018)Google Scholar

Copyright information

© Springer Nature Singapore Pte Ltd. 2020

Authors and Affiliations

  1. 1.Indian Institute of Management CalcuttaKolkataIndia

Personalised recommendations