Abstract
The World Trade Organization (WTO) adjudicatory crisis, namely, the specific blockage over the approval of candidates to fill vacancies on the Appellate Body, and general impasse over changes to the Agreement on Rules and Procedures Governing the Settlement of Disputes (DSU), will not be resolved easily or quickly. There is a mismatch between the (1) proposals to reform Appellate Body and DSU reform proposals, and (2) central criticisms the United States raises. America arguments are about the right way to interpret disputed texts in a trade treaty, and about the right weight to give prior decisional rulings. None of the reform proposals raised by the European Union (EU) or Canada, squarely address America’s arguments. The Euro-Canadian suggestions are about procedures, whereas America challenges foundations of multilateral trade adjudication.
The author is grateful to his Research Assistants for their excellent help with this article: Nathan D.J. Kim, New England Conservatory of Music, B.A. (Clarinet Performance, 2001), University of Kansas School of Law, J.D. (2016), S.J.D. (in progress), Member, New York Bar; Dukgi Goh, University of California—Irvine, B.A. (2015), University of Kansas School of Law, J.D. (expected May 2020).
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Notes
- 1.
This essay presumes the reader is conversant with WTO law and the DSU. For background on those topics, see, e.g., Bhala (2019), Chaps. 21–25. This essay also presumes the reader is conversant with the concept of stare decisis, and the author’s trilogy on the topic. See Raj Bhala:
Finally, this essay presumes familiarity with Articles 31–32 of the 1969 Vienna Convention on the Law of Treaties. For brief background on the Convention, see Bhala (2015a, b), entry for “Vienna Convention”.
- 2.
Bhala (2019), Chap. 24.
- 3.
See Bhala (Fall 2018), 38–105.
- 4.
Office of the United States trade Representative (2018) Statement of the United States by Ambassador Dennis Shea at the 14th WTO Trade Policy Review of the United States of America. https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/december/statement-united-states-ambassador. Accessed 8 Mar 2019.
- 5.
The United States raises these five concerns in a variety of documents and venues, which are reviewed and analyzed in Bhala, supra note 4, at Chaps. 23–25.
- 6.
Appellate Body Report, Argentina—Measures Relating to Trade in Goods and Services, WT/DS453/AB/R (9 May 2016).
- 7.
Quoted in World Trade Organization (2018) Statement by the United States on the Precedential Value of Panel or Appellate Body Reports. https://www.wto.org/english/news_e/news18_e/dsb_18dec18_e.htm (emphasis added). Accessed 8 Mar 2019.
- 8.
Quoted in Id.
- 9.
The EU’s DSU reform proposals appear in:
-
(1)
European Commission, Directorate-General for Trade, WTO—EU’s Proposals on WTO Modernization (5 July 2018).
-
(2)
European Commission, Concept Paper, WTO Modernization (18 Sept 2018).
-
(3)
European Commission (2018) European Commission—Press Release, WTO Reform: EU Proposes Way Forward on the Functioning of the Appellate Body. European Commission Press Release Database. http://europa.eu/rapid/press-release_IP-18-6529_en.htm. Accessed 3 Mar 2019.
-
(4)
General Council, Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Korea, Iceland, Singapore, and Mexico to the General Council, WT/GC/W/752 (Nov 26, 2018).
Thus, Table 2, and the discussion of these proposals, draw on these documents, all of which are available at the Univ of Kans Wheat Law Library Res & Study Guides, International Trade Law: WTO General. https://guides.law.ku.edu/c.php?g=705128&p=6121043. Accessed 8 Mar 2019.
Canada’s DSU reform proposals appear in:
-
(1)
Government of Canada [Please kindly confirm the document is made by Government of Canada.], Strengthening and Modernizing the WTO: Discussion Paper (Draft, 30 August 2018 [please kindly provide the year of the document.]).
-
(2)
Government of Canada [Please kindly confirm the document is made by Government of Canada.], Joint Communiqué of the Ottawa Ministerial on WTO Reform (24–25 Oct 2018, also issued with Australia, Brazil, Canada, Chile, Japan, Kenya, Korea, Mexico, New Zealand, Singapore, and Switzerland).
-
(3)
General Council, Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Korea, Iceland, Singapore, and Mexico to the General Council, WT/GC/W/752 (26 Nov 2018).
Thus, Tables 3 and 4, and the discussion of the Canadian proposals, draw on these documents, all of which are available at the Univ of Kans Wheat Law Library Res & Study Guides, International Trade Law: WTO General. https://guides.law.ku.edu/c.php?g=705128&p=6121043. Accessed 8 Mar 2019.
-
(1)
- 10.
- 11.
Id.
- 12.
In particular, Article 31:1 of the Vienna Convention lays out three elements to be used in interpreting a treaty text in the following hierarchy: (1) ordinary meaning; (2) context; (3) object and purpose of treaty. See U.N. Vienna Convention on the Law of Treaties, Articles 31–32, opened for signature 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 Jan 1980).
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Bhala, R. (2020). Why the WTO Adjudicatory Crisis Will Not Be Easily Solved: Defining and Responding to “Judicial Activism”. 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_7
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