Abstract
The Appellate Body (hereinafter AB) has been criticized for exercising “judicial activism” on the one hand, and, on the other hand, for being too literalistic in its interpretation of the WTO agreements. This reflects the question of whether the Appellate Body is an international court of trade. After reviewing the judicial features of the AB, i.e., automaticity of decision-making and compulsory jurisdiction, this chapter considers the U.S. concern for AB’s judicial activism and for the AB’s practice that may adversely affect the sovereignty of WTO Members. The problem is that there is no mechanism for checks and balances in regard to the AB in the WTO. Accordingly, this chapter considers several potential institutional reforms that may put some discipline on the AB, including optional DSB jurisdiction, reduction of the threshold of the exclusive authority of the Ministerial Conference and the General Council to adopt interpretations, and establishment of an informal peer group to review AB reports.
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Notes
- 1.
When the Shrimp/Turtle ruling by the Appellate Body was adopted (Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 Nov 1998), Chile and Mexico criticized the appellate report and stated that the Appellate Body read between line of WTO agreements and this is simply not allowed. For details, see Donaldson (2005), pp. 1277–1339.
- 2.
For details, see Matsushita (2005, pp. 1389–1403).
- 3.
For details of this discussion, see Matsushita (2015, pp. 547–58).
- 4.
Article 17(13) of the Dispute Settlement Understanding states: “The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel”.
- 5.
For a history of the GATT including that of the International Trade Organization, see Van den Bossche (2005, p. 79) et seq.
- 6.
Office of the u.s. trade representative, national trade estimate report on foreign trade barriers (2017, pp. 1–7).
- 7.
In fact, the Uruguay Round Implementation Act enacted by the United States Congress to implement the contents of WTO agreements states clearly to that effect. See, for details, Sect. 102 (a) Relationship of Agreements to United States Law and State Law states: “(1) United States Law To Prevail in Conflict—No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United State shall have effect”. See, for details, Uruguay Round Agreements, Texts of Agreements, Implementing Bill, Statement of Administrative Action and Required Supporting Statements Message from the President of the U.S. (24 Sept 1994), 103d Cong., 2d Sess. House Doc. 103–316, Vol. 1–2.
- 8.
Appellate Body Report, United States—Anti-dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R (adopted 26 Sept 2000).
- 9.
Appellate Body Report, United States—Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R (adopted 27 Jan 2003).
References
Matsushita M (2005) Some thought on the Appellate Body. In: Patrick FJ Macrory et al (ed), The World Trade Organization: legal, economic and political analysis. Spring, New York, Vol 1, pp 1390–1403
Matsushita M (2015) Reflections on the functioning of the Appellate Body. In: G Marceau(2015) (ed), A history of law and lawyers in the GATT/WTO: the development of the rule of law in the multilateral trading system. Cambridge University Press, Cambridge, pp 547–558
Office of the U.S. trade representative (2017) National Trade Estimate Report on Foreign Trade Barriers
Van den Bossche P (2005) The law and policy of the World Trade Organization: text, Cases and Materials. Cambridge University Press, New York
Victoria D (2005) The Appellate Body: institutional and procedural aspects. The World Trade Organization, Springer, Boston
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Matsushita, M. (2020). Reforming the Appellate Body. In: Lo, Cf., Nakagawa, J., Chen, Tf. (eds) The Appellate Body of the WTO and Its Reform. Springer, Singapore. https://doi.org/10.1007/978-981-15-0255-2_3
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DOI: https://doi.org/10.1007/978-981-15-0255-2_3
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