The AB Crisis as Symptomatic of the WTO’s Foundational Defects or: How I Learned to Stop Worrying and Love the AB

Abstract

The Appellate Body (AB) of the WTO’s Dispute Settlement Body is in crisis as a result of attacks on the AB’s processes, decisions and approaches. These attacks are predominantly, but not entirely, being brought by the United States. The crisis is being brought to a head by the refusal of the US to agree to the appointment of new AB members. If the US approach is not countered or reversed, this will result in the AB being unable to operate, effectively permitting WTO rule breaking to go unchecked. The very rule of law character of the WTO is consequently under threat. Most critically, it is not inconceivable that the demise of the AB could quickly and all too easily lead to the death or death-like stagnation of the WTO. This chapter’s fundamental thesis is, however, that the current concerns about the AB and the WTO more generally reflect deeper fundamental flaws and disconnects within the WTO and therefore suggests that proposed AB reforms by some WTO members are too superficial and hence likely irrelevant to the real, inevitable and likely fatal challenges to the WTO. This chapter argues that the crisis therefore is not really the fault of the AB, neither in its structure, function or outputs, but rather a result of deeper fundamental faults within the WTO. This chapter further argues that for the most part the AB structure, function and outputs are generally without serious fault, and instead represent acceptable and effective approaches to the resolution of trade disputes between sovereign states in the context of the WTO. Critically, the chapter also notes that the AB’s behaviours and approaches are entirely consistent with what one would expect from a rule of law Dispute Settlement Body—be it international or domestic.