Abstract
The politicization of the WTO Appellate Body selection process is undermining the Appellate Body’s legitimacy. Quasi-permanent seats, growing obstacles in the appointment and reappointment process, and the growing tendency of Members to appoint political as opposed to legal experts, are damaging the Appellate Body as an institution. Instead of choosing Appellate Body Members with strong legal backgrounds, Members are demonstrating a preference for judges with government experience, in particular ex-ambassadors. This development may erode respect for Appellate Body decisions. As Montesquieu noted, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Members would be wise to remember this as they ponder Appellate Body appointments and reappointments.
Arthur E. Appleton, JD, PhD, adjunct professor, Johns Hopkins School of Advanced International Studies (SAIS Europe).
The author is also a visiting faculty member at the University of Barcelona (IELPO), a faculty and board member of WTI (University of Bern), and a partner with Appleton Luff International Lawyers (Geneva). The author would like to thank the Editor, Dr Leïla Choukroune, for her very useful comments. He would also like to thank those who commented on earlier drafts and prefer to remain anonymous. The author states that all remaining errors are his own.
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Notes
- 1.
One notable exception is the work of Manfred Elsig. See generally, Manfred Elsig & Mark A Pollack, Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body, 20 European Journal of International Relations (June 2014) 391–415. This chapter provides interesting insights into the politicization of the Appellate Body nomination and approval process. An early draft is available online at: http://wp.peio.me/wp-content/uploads/2014/04/Conf4_Elsig-Pollack-24.01.2011.pdf.
- 2.
Pursuant to the Agreement Establishing the World Trade Organization, at https://www.wto.org/english/docs_e/legal_e/legal_e.htm.
- 3.
Gary Born refers to these as second-generation international tribunals. See Gary Born, A New Generation of International Adjudication, 61 Duke L. J. (2012) 775. WTO Members need not abide by Appellate Body rulings, but if they do not the prevailing Member in a dispute may eventually be able to pressure the losing Member by revoking concessions – most often tariff concessions.
- 4.
Tom Bingham (Lord Bingham of Cornwall, former Lord Chief Justice and Senior Law Lord), The Business of Judging: Selected Essays and Speeches (OUP, Oxford, 2000) 55.
- 5.
Gordon Howard (7th Lord Chief Justice of England) paraphrasing his own decision in R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233.
- 6.
As noted below, there has always been a Member from the European Union and the United States. There has always been a Member from Latin America and Africa, and at least one Member (usually two) from Asia. At times, a majority of Appellate Body Members have come from developing countries. Only four of the 25 Members (Janow, Bautista, Hillman and Zhang) have been female. Three of the four female Members only served one term.
- 7.
Unrealistic in 1995 as WTO Members must have found it difficult to find Appellate Body Members with “demonstrated expertise” with the subject matter of the covered agreements before these agreements entered into effect.
- 8.
See Elsig & Pollack, supra note 1.
- 9.
For a candid description of the importance of the Appellate Body Secretariat, see AV Ganesan, The Appellate Body in Its Formative Years: A Personal Perspective, in, Gabrielle Marceau (ed) A History of Law and Lawyers in the GATT/WHO: The Development of the Rule of Law in the Multilateral Trading System (CUP, Cambridge, 2015) 517, 545.
- 10.
Claus-Dieter Ehlermann, Revisiting the Appellate Body: The First Six Years, appearing in Marceau, supra note 9, 482, 495, 498 (quoting 495).
- 11.
Luiz Olavo Baptista note that:
One cannot forget that the people who wrote the WTO agreements were predominately diplomats. It is of the essence of diplomacy that expressions are used that cater to a large number of people so that agreement can be reached. Consequently, the WTO agreements contain provisions that are not always the best example of lawyerly rigour and accuracy.
See, Luiz Olavo Baptista, A Country Boy Goes to Geneva, appearing in Marceau, supra note 9, 559, 566.
Julio Lacarte-Muró makes a similar observation referring to the “constructive ambiguity” of the WTO agreements. Julio Lacarte-Muró, Launching the Appellate Body, appearing in Marceau, supra note 9, 476, 480.
- 12.
EU behaviour would appear to be somewhat more moderate, to the extent that the European Union normally nominates well-respected academics for the “EU seat.”
- 13.
See generally, Garrison Nelson, Pathways to the US Supreme Court: From the Arena to the Monastery (Palgrave Macmillan, New York, 2013) 52–53. Salient points of his work are summarized in a book review by Tim Johnson, “Supreme Choice: Monastery vs. Arena”, Burlington Free Press (9 March 2014).
- 14.
Nelson would place Ambassadors in the Diagonal path.
- 15.
Ms Yuejiao Zhang’s second term expired on 31 May 2016. Professor Seung Wha Chang’s first and only term also expired on 31 May 2016. Both are completing appeals assigned to them prior to 31 May 2016. For purposes of this chapter, they are treated as sitting Members.
- 16.
German Exchange Rate Scheme for Deutsche Airbus (SCM/142), United Kingdom Waivers – Application in Respect of Customs Duties on Bananas (L/1749), Japan – Trade in Semi-Conductors (L/6309 – 35S/116), and United States – Measures Affecting Alcoholic and Malt Beverages (DS23/R – 39S/206).
- 17.
Daniel Terris, Cesare PR Romano & Leigh Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (Brandeis University Press/University Press of New England, Waltham, Massachusetts, 2007) 107.
- 18.
See, for example, Ganesan’s excellent legally oriented chapter, supra note 9. See also Baptista, supra note 11, 566, where Baptista pays tribute to Ganesan’s ability to interpret and apply the law.
- 19.
Ehlermann, supra note 10, 502.
- 20.
Mitsuo Matsushita, Reflections on the Functioning of the Appellate Body, appearing in Marceau, supra note 9, 547, 558.
- 21.
These concerns are described in detail by Elsig and Pollack, supra note 1. In an article appearing in the 6 June 2016 edition of The Washington Post, Elsig, Pollack and Shaffer describe the controversy caused by the US decision to block the reappointment of Professor Chang, and the problems this decision poses for the WTO system. See The U.S. is Causing a major controversy in the World Trade Organization. Here’s what’s happening https://www.washingtonpost.com/news/monkey-cage/wp/2016/06/06/the-u-s-is-trying-to-block-the-reappointment-of-a-wto-judge-here-are-3-things-to-know/
- 22.
Steve Charnovitz, Judicial Independence in the World Trade Organization appearing in International Organizations and International Dispute Settlement: Trends and Prospects Boisson de Chazournes, Romano and Mackenzie (eds), (Transnational Publishers, Ardsley NY, 2002) 239, quoting Patrick M Norton, A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation, 85 AJIL (1991) 474, 505.
- 23.
Article 17.3 of the WTO dispute settlement Understanding requires that “The Appellate Body membership shall be broadly representative of membership in the WTO.”
- 24.
The role of WTO panellists is beyond the scope of this chapter.
- 25.
Despite what is indicated in the following two notes, Baptista recently wrote that Janow and Hillman did not want to be reappointed. See Baptista, supra note 11, 563.
- 26.
Gary Hufbauer commented on a leading trade law blog that:
The office of the US Trade Representative has taken the little noticed but highly unfortunate step of blocking Jennifer Hillman’s second term on the WTO Appellate Body. This is a bad omen, both for the World Trade Organization and the United States….
The United States has never before blocked its Appellate Body appointee from serving a second term. Since the USTR has offered no explanation for blocking Hillman, suspicions are bound to arise that the United States is displeased with her decisions on the AB and wants to name a judge who is more attentive to US positions in future cases.
These suspicions are bound to erode confidence in the WTO judicial system, and create a chilly reception for Hillman’s successor appointee. (13 June 2011) http://worldtradelaw.typepad.com/ielpblog/appellate_body/.
- 27.
Elsig and Pollack note that:
There is no conclusive evidence on why Janow did not seek re-appointment. Some evidence from interviews suggests that USTR was concerned about cases where she was part of the three persons hearing the appeals where the AB ruled against the US. A former USTR put it more generally: “We were not happy with US AB Members who bend over backwards to show their independence by ruling against the US.” In the reports written by the AB, she did not use the option of sharing an individual (usually dissenting) view. Most importantly, she was involved in an AB recommendation that disagreed with a panel that found US AD practices (so-called zeroing methodology) to be permissible. Elsig & Pollack, supra note 1, at 52 (footnotes omitted), (internet version).
- 28.
Article 17.3 of the WTO Dispute Settlement Understanding provides that Appellate Body Members “shall be unaffiliated with any government.”
- 29.
David Unterhalter, “The Authority of an Institution: The Appellate Body under Review,” appearing in Marceau, supra note 9, 466, 469; Debra P Steger, “The Founding of the Appellate Body,” appearing in Marceau, supra note 9, 447, 463.
- 30.
Debra Steger also makes this point. Ibid. 463. An exception could perhaps be crafted for academics as they are less likely to have a conflict of interest. Nevertheless, if the justification for a permanent Appellate Body is related to the time commitment of judges, such an exception would need to be considered carefully.
- 31.
Charnovitz, supra note 22, 220 (quoting Montesquieu, The Spirit of Laws).
- 32.
Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (WT/DS135/AB/R), DSR 2001:VII, 3243 (adopted 5 April 2001). The scolding that some Members gave the Appellate Body when it decided to issue guidelines for acceptance of amicus submission appears to have had a chilling effect on the Appellate Body’s willingness to State that they were influenced by amicus submission. For a description of this matter, see Victoria Donaldson, The Appellate Body: Institutional and Procedural Aspects, in, Appleton and Plummer (eds) The World Trade System: Legal, Economic and Political Analysis (Springer, New York, 2005) 1333.
- 33.
Ehlermann, supra note 10, 595.
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Appleton, A.E. (2016). Judging the Judges or Judging the Members?. In: Choukroune, L. (eds) Judging the State in International Trade and Investment Law. International Law and the Global South. Springer, Singapore. https://doi.org/10.1007/978-981-10-2360-6_2
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