A Proper Balance Between WTO’s Members-Driven Nature and the Appellate Body’s Role as an Adjudicator—Careful Exercise of Judicial Activism

Abstract

There is a critical issue about whether the Appellate Body is practicing judicial activism and has gone beyond the control of the WTO Members collectively. This chapter discusses this issue from the perspectives of the “collective members-driven” design of the WTO and the Appellate Body’s role as an adjudicator or as merely holding an assisting role to help WTO Members’ decision-making. It suggests that the Appellate Body must be very careful in exercising judicial activism. Only in the situations where it is necessary to maintain important human values, to avoid a major leak or disruption of the WTO’s operation or to coordinate with other major international treaties, the Appellate Body should be expected to play an active role as an adjudicator in order to ensure the constitutionalism of international trade norms under the WTO. Whereas in the situations where there involve merely technical issues and commercial interests, the Appellate Body should avoid practicing judicial activism. Instead, it should play an “assisting role” in order to help the WTO Members as a whole to discharge their decisions-making duties.