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Legitimacy Crisis at the World Trade Organisation Appellate Body: Other Ways Than the MPIA?

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European Yearbook of International Economic Law 2021

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 12))

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Abstract

The World Trade Organisation (WTO) is the foremost international organisation regulating the conduct of international trade law. It provides political and legal mechanisms through which Member-States’ rights and obligations regarding international trade law are negotiated, agreed upon, clarified, and enforced. As the primary means through which these rights and obligations are clarified and preserved, and as the last avenue of appeal in the WTO’s dispute settlement system, the Appellate Body is the ‘crown jewel’ of that system. However, the crown jewel has been ‘stolen’, and the Appellate Body hamstrung by the United States’ refusal to approve the appointment of Appellate Body members and satisfy its quorum—causing an ‘Appellate Body crisis’.

This chapter contributes to the debate on resolving this crisis by analysing just one of the possible solutions—the Multiparty Interim Appeal Arbitration Arrangement (MPIA), an alternative appeal arrangement under Article 25 of the Dispute Settlement Understanding (DSU). The chapter argues that the crisis currently facing the Appellate Body is one of legitimacy, and the MPIA is not the correct forum for addressing questions about the identity of the WTO. For that reason, this chapter asserts that the MPIA is not a permanent solution to the Appellate Body crisis and explains why that is the case. Furthermore, it explains that—although not a solution—the MPIA offers important lessons which should be considered during any future reforms seeking to address the legitimacy crisis.

This argument is conducted in four parts. Section 2 provides background and context to the legitimacy crisis—it explains the Appellate Body’s role and importance within the WTO, how the current crisis arose, and how this impacts the Appellate Body’s function. Section 3 outlines the theoretical framework upon which this chapter relies. Section 4 then uses a mix of interpretive techniques and contextual analysis to analyse the MPIA, make predictions as to its likely implementation, and assesses the MPIA’s effectiveness at addressing the criticisms of the Appellate Body that spurred the current crisis. Finally, Sect. 5 explores the chapter’s conclusion that, while the MPIA is not a permanent solution to the crisis, it provides guidance as how best to pursue reform(s) going forward.

This chapter is correct as at the time of authorship.

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Notes

  1. 1.

    Pascal Lamy, WTO Director-General, ‘Receiving honorary doctorate in Turkey, Lamy warns against remote global governance’, World Trade Organisation, 15 March 2013, <https://www.wto.org/english/news_e/sppl_e/sppl272_e.htm>.

  2. 2.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.1.

  3. 3.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) (Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU) (MPIA).

  4. 4.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 25.

  5. 5.

    This chapter assumes the objectives of the WTO—namely the ‘substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations’—are worthwhile goals: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995). On whether free trade itself is a worthwhile objective, see van den Bossche and Zdouc (2017), Chapter 1.

  6. 6.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 6.1; Panel Report, United States – Sections 301–310 of the Trade Act of 1974, WT/DS152/R (22 December 1999) [7.43], [7.75].

  7. 7.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 6.1.

  8. 8.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 16.4.

  9. 9.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 17.13, 17.6, 19.2.

  10. 10.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 16.14, 17.14.

  11. 11.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.14.

  12. 12.

    WTO, ‘Members urge continued engagement on resolving Appellate Body issues’ (News item, 18 December 2019) <https://www.wto.org/english/news_e/news19_e/dsb_18dec19_e.htm> (last accessed 11 August 2021); WTO Secretariat’s Information and External Relations Division, ‘Members reiterate joint call to launch selection process for Appellate Body members’ (Media Release, 22 November 2019) <https://www.wto.org/english/news_e/news19_e/dsb_22nov19_e.htm> (last accessed 11 August 2021).

  13. 13.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 16.4; Tetyana Payosova, Gary Clyde Hufbauer and Jeaffrey J Schott, The Dispute Settlement Crisis in the World Trade Organization: Causes and Cures (Peterson Institute for International Economics, Policy Brief 18-5 March 2018).

  14. 14.

    Simon Lester, ‘Can Interim Appeal Arbitration Preserve the WTO Dispute System?’ (2020) 77 Herbert A. Stiefel Center for Trade Policy Studies Free Trade Bulletin, Cato Institute, 3.

  15. 15.

    Van den Bossche (2005b), p. 64; Voon and Yanovich (2006), p. 240.

  16. 16.

    Steger (1996), p. 322; Van den Bossche (2005a), p. 5; Jacyk (2008), p. 245.

  17. 17.

    Van den Bossche and Zdouc (2017), p. 1; Voon and Yanovich (2006), p. 246.

  18. 18.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 3.2.

  19. 19.

    Pauwelyn (2019), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3415964> (last accessed 11 August 2021).

  20. 20.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 21, 22; Tetyana Payosova, Gary Clyde Hufbauer and Jeaffrey J Schott, The Dispute Settlement Crisis in the World Trade Organization: Causes and Cures (Peterson Institute for International Economics, Policy Brief 18-5 March 2018) 9.

  21. 21.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 6.1; Panel Report, United States – Sections 301–310 of the Trade Act of 1974, WT/DS152/R (22 December 1999) [7.43] [7.75].

  22. 22.

    For an explanation of why a lack of coercive countermeasures will likely decrease compliance, see Sect. 3.1.

  23. 23.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 3.2.

  24. 24.

    ‘Statement by Ministers, Davos, Switzerland, 24 January 2020’, 24 January 2020, <https://trade.ec.europa.eu/doclib/docs/2020/january/tradoc_158596.pdf> (last accessed 11 August 2021).

  25. 25.

    European Council, ‘Council approves a multi-party interim appeal arbitration arrangement to solve trade disputes’ (Press release, 15 April 2020, Council of the European Union) <https://www.consilium.europa.eu/en/press/press-releases/2020/04/15/council-approves-a-multi-party-interim-appeal-arbitration-arrangement-to-solve-trade-disputes/> (last accessed 11 August 2021); Hestermeyer H, ‘Op-Ed: “Saving Appeals in WTO Dispute Settlement: The Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU”’. EU Law Live, 2 April 2020 <https://eulawlive.com/op-ed-saving-appeals-in-wto-dispute-settlement-the-multi-party-interim-appeal-arbitration-arrangement-pursuant-to-article-25-of-the-dsu-by-holger-hestermeyer/> (last accessed 11 August 2021).

    As at the time of writing, the following WTO Members are Parties to the MPIA: Australia, Benin, Brazil, Canada, China, Chile, Colombia, Costa Rica, Ecuador, European Union, Guatemala, Hong Kong, China, Iceland, Mexico, Montenegro, New Zealand, Nicaragua, Norway, Pakistan, Singapore, Switzerland, Ukraine, and Uruguay.

  26. 26.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 6; Annex 2, 7; Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.1 of the DSU; Working Procedures for Appellate Review, WT/AB/WP/6 (1995) (‘Working Procedures’) 6(2).

  27. 27.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.7; Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 7.

  28. 28.

    Letter from the Permanent Mission of the United States to the WTO, 5 June 2020 <https://drive.google.com/file/d/1QIhcAoqU8pmdR6nKz0LNmfx8GR6s1lr3/view> (last accessed 11 August 2021).

  29. 29.

    The DSU’s object and purpose is to provide ‘security and predictability to the multilateral trading system’, through the ‘prompt settlement’ and ‘positive and effective resolution’ of disputes: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2 Art 3.2, 3.3, 3.4; Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996) 31; Appellate Body Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R (05 June 1998) [82]; Panel Report, United States – Sections 301–310 of the Trade Act of 1974, WT/DS152/R (22 December 1999) [7.75]; Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R (15 December 2003) [82]; Appellate Body Report, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R (30 April 2008) [160]–[161]; Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R (21 December 2009) [213]; Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R (16 January 2003) [311]; Appellate Body Report, European Communities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R (12 September 2005) [161]; Appellate Body, United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (25 April 1997) 19. Interpreted ‘in accordance with customary rules of interpretation of public international law’: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 3.2. Articles 31–32 of the VCLT codify customary rules of interpretation of public international law: Appellate Body Report, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R (30 April 2008) [161]; Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996) [15]–[16] (‘US – Gasoline’); Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996) [104]; Oxford Public International Law (2020), [B.1] <https://opil.ouplaw.com/home/mpil> (last accessed 11 August 2021).

  30. 30.

    Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Art 31.1; Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996) fn. 20; Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998) [114].

  31. 31.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble; Pauwelyn (2019), p. 312 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3415964> (last accessed 11 August 2021). The only reference to ‘independence’ in the DSU is Article 8.2 DSU which requires ‘Panel members should be selected with a view to ensuring the independence of the members, a sufficiently diverse background and a wide spectrum of experience’ (emphasis added). There is no equivalent for the Appellate Body, and no reference at all to impartiality.

  32. 32.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 5.

  33. 33.

    Given that such ‘consistency and predictability in the interpretation of rights and obligations… is of significant value to Members’: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble.

  34. 34.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 9. Or for members who later join the MPIA, the date of their notification to the DSB that they endorse the MPIA is deemed to be the relevant date for the purposes of paras 9 and 10.

  35. 35.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 14, 15; Annex 1, 18; Annex 1, 18, fn.10; Annex 2, 9.

  36. 36.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 14, 15.

  37. 37.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 17.

  38. 38.

    For an explanation of how countermeasures encourage compliance, see Sect. 3.1.

  39. 39.

    Tetyana Payosova, Gary Clyde Hufbauer and Jeaffrey J Schott, The Dispute Settlement Crisis in the World Trade Organization: Causes and Cures (Peterson Institute for International Economics, Policy Brief 18-5 March 2018).

  40. 40.

    For example, think of s 56(1) of the Civil Procedure Act 2009 (NSW) which outlines ‘[t]he overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.’ (emphasis added)

  41. 41.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.5 (emphasis added).

  42. 42.

    The longest time taken was 691 days for Appellate Body Report, Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/AB/R, WT/DS441/AB/R (09 June 2020) and the shortest time taken was 47 days for Appellate Body Reports, India – Measures Affecting the Automotive Sector, WT/DS146/AB/R, WT/DS175/AB/R (19 March 2002). These numbers are current as at 30 June 2020.

  43. 43.

    DSU – Article 17 (Practice), (WTO Analytical Index: Guide to WTO Law and Practice, Annex 2: Dispute Settlement Understanding) <https://www.wto.org/english/res_e/publications_e/ai17_e/ai17_e.htm> 4 [4] (last accessed 11 August 2021).

  44. 44.

    Saunders (2021).

  45. 45.

    Johnson K, ‘How Trump May Finally Kill the WTO’. Foreign Policy, 9 December 2019 <https://foreignpolicy.com/2019/12/09/trump-may-kill-wto-finally-appellate-body-world-trade-organization/> (last accessed 11 August 2021).

  46. 46.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 26.

  47. 47.

    Johnson K, ‘How Trump May Finally Kill the WTO’. Foreign Policy, 9 December 2019 <https://foreignpolicy.com/2019/12/09/trump-may-kill-wto-finally-appellate-body-world-trade-organization/> (last accessed 11 August 2021).

  48. 48.

    For an explanation of why delay is problematic with reference to the five models of compliance theory used in this chapter, see Sect. 3.1.

  49. 49.

    Model 1.

  50. 50.

    Model 2.

  51. 51.

    Porges (2003–2004), p. 182.

  52. 52.

    Model 3.

  53. 53.

    Model 4.

  54. 54.

    Model 5.

  55. 55.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 26.

  56. 56.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.5 (emphasis added).

  57. 57.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 12.

  58. 58.

    Working Procedures for Appellate Review, WT/AB/WP/6 (1995) 16.

  59. 59.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 8. For example, Parties request panels notify then in advance of the circulation of a panel report: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 3. Paragraph 4 makes similar requests for adjusting existing procedure, confidentiality, and communicating the finalization of panel records to arbitrators.

  60. 60.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 19 fn.11.

  61. 61.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 11.

  62. 62.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 3.

  63. 63.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 12.

  64. 64.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 25.2 (emphasis added).

  65. 65.

    Examples include imposing deadlines and limits on pages, time and hearing length and frequency: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 12.

  66. 66.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 11.

  67. 67.

    Colbran et al. (2015), [2.2.1].

  68. 68.

    Working Procedures for Appellate Review, WT/AB/WP/6 (1995) 15.

  69. 69.

    For an explanation of how this raises issues regarding arbitrators’ compensation structures see: WTO Secretariat’s Information and External Relations Division, ‘Members reiterate joint call to launch selection process for Appellate Body members’ (Media Release, 22 November 2019) <https://www.wto.org/english/news_e/news19_e/dsb_22nov19_e.htm> (last accessed 11 August 2021).

  70. 70.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 33 fn. 45.

  71. 71.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 32.

  72. 72.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 37.

  73. 73.

    Model 3.

  74. 74.

    While the Appellate Body’s practice has rarely been questioned it is not technically correct to say it has ‘never’ been questioned. India did so in 1996, upon Rule 15’s adoption: United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 35, fn.52.

  75. 75.

    Background Note on Rule 15 of the Working Procedures for Appellate Body Review, WT/AB/28 (24 November 2017) (Communication from the Appellate Body 24 November 2017). The USTR dismisses such explanations as ‘unsolicited’ and raising ‘more questions than answers’: United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 34.

  76. 76.

    Dispute Settlement Body, Minutes of the Meeting, WT/DSB/M/409 (28 February 2018) para 7.21.

  77. 77.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.9.

  78. 78.

    Both the US and the Appellate Body agree the Appellate Body’s discretion regarding its Working Procedures does not give them ‘authority to disregard or to modify other explicit provisions of the DSU’: Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (19 December 1997) [92]; United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 34.

  79. 79.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 6.

  80. 80.

    This is somewhat ironic, given it is the same consensus requirement in Article 2(4) DSU which de facto grants the US the ‘veto power’ to block Appellate Body appointments: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 3–5; Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 2(4).

  81. 81.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 50.

  82. 82.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 3.2; Art 19.2. The combined effect of Articles 3.2 and 19.2 DSU are to ‘explicitly caution’ Appellate Body against judicial activism: Croley and Jackson (1996), p. 199; Van den Bossche and Zdouc (2017), p. 190, fn. 146.

  83. 83.

    Appellate Body, United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (25 April 1997) 19. This interpretation is confirmed by the travaux préparatoires (as per Art 32 VCLT): Van den Bossche and Zdouc (2017), p. 198.

  84. 84.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 4.4, 6.2; United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 48.

  85. 85.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 7.1.

  86. 86.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.12.

  87. 87.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 11. Any limitation upon a panel’s mandate applies, by necessity, to the Appellate Body since Articles 17.3 and 17.6 DSU limit the scope of Appellate Body review to a panel’s findings: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.3 and 17.6.

  88. 88.

    Appellate Body, United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (25 April 1997) 19.

  89. 89.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 52–53.

  90. 90.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 10 (emphasis added). This is ‘without prejudice to their obligation to rule on jurisdictional issues.’

  91. 91.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.12 DSU (emphasis added).

  92. 92.

    The Appellate Body states, ‘[a] panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’ (Appellate Body, United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R (25 April 1997) 19) while the USTR confirms that judicial economy is ‘appropriate and is wholly consistent with Article 17.12 because to “address” an issue requires only consideration of and disposal of the issue; the Appellate Body is under no obligation to write an interpretation of every issue’: United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 51 (emphasis added).

  93. 93.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 3.1.

  94. 94.

    Oxford Public International Law (2020), [B.1] <https://opil.ouplaw.com/home/mpil> (last accessed 11 August 2021).

  95. 95.

    Appellate Body Report, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R (30 April 2008) [161] (emphasis added); Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998); Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R (04 February 2009) [160], [312]; United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 55.

  96. 96.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 56.

  97. 97.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 61.

  98. 98.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 61.

  99. 99.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 3; Mignolli (2020).

  100. 100.

    Malkawi B, ‘MPIA and Use of Arbitration: Bypassing the WTO Appellate Body’. The Jurist, 28 May 2020 <https://www.jurist.org/commentary/2020/05/bashar-malkawi-mpia-wto-appellate-body/> (last accessed 11 August 2021).

  101. 101.

    See, for example, Saipem SpA v People’s Republic of Bangladesh, ICSID Case No ARB/05/07, Decision on Jurisdiction and Provisional Measures (21 March 2007) [67]; Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/05/1, Award (22 August 2012) [52].

  102. 102.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 25.3.

  103. 103.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 15; Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.4.

  104. 104.

    Malkawi B, ‘MPIA and Use of Arbitration: Bypassing the WTO Appellate Body’. The Jurist, 28 May 2020 <https://www.jurist.org/commentary/2020/05/bashar-malkawi-mpia-wto-appellate-body/> (last accessed 11 August 2021).

  105. 105.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 26. While international courts are competent to decide upon their own competence, the Appellate Body cannot alter the scope of review under the DSU: Appellate Body Report, United States – Anti-Dumping Act of 1916, WT/DS136/AB/R (26 September 2000) 30, [54].

  106. 106.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.6.

  107. 107.

    This is similar to the division of labour between trial and appellate courts in many domestic jurisdictions: Voon and Yanovich (2006), p. 241; Croley and Jackson (1996), p. 202. There are several compelling policy reasons for precluding Appellate Body factual review: Voon and Yanovich (2006), p. 240. The DSU imposes stricter timelines on the Appellate Body than panels: Panel proceedings must conclude within 9 months (Art 12.9 DSU) while Appellate Body reports must conclude within 90 days (Art 17.5 DSU); Panels conduct two meetings with disputing parties (Art 15 DSU), whereas the Appellate Body typically only has one: Working Procedures for Appellate Review, WT/AB/WP/6 (1995) 27. Panels also have better investigative tools at their disposal: panels provide Member-States an interim report for comment (Art 15 DSU) and have ‘the right to seek information and technical advice from any individual or body which it deems appropriate’ (Art 15 DSU).

  108. 108.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 17.6.

  109. 109.

    Oxford English Dictionary, ‘law’ (def 1); ‘legal’ (def 1a and 1b); ‘issue’ (def I); ‘interpretation’ (def 1a); ‘interpret’ (def 1a) <https://www.oed.com> (last accessed 27 September 2020).

  110. 110.

    Voon and Yanovich (2006), p. 244.

  111. 111.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 6.

  112. 112.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 11.

  113. 113.

    It remains controversial whether Article 11 DSU was intended to be a ground of appeal or sought to establish aspirational goals.

  114. 114.

    Lester (2012), p. 131.

  115. 115.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 44.

  116. 116.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 6.

  117. 117.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble; [3].

  118. 118.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble. Recommendations from the pool of arbitrators are to be issued ‘as envisaged in Article 19 of the DSU’, reiterating, once again, that ‘the Appellate Body cannot add to or diminish the rights and obligations…’: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 19.2 DSU; MPIA, Annex 2, 9.

  119. 119.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 9.

  120. 120.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 13; Annex 1, 13.

  121. 121.

    Cf. Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 11.

  122. 122.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 13.

  123. 123.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 13; Annex 1, 13.

  124. 124.

    Étienne (2010), p. 493.

  125. 125.

    See Lunenburg (2012), p. 1 for a brief but excellent summary of Etzioni’s theory.

  126. 126.

    Guzman (2002), p. 1825.

  127. 127.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 21 and 22.

  128. 128.

    Boisson de Chazournes (2005), p. 186.

  129. 129.

    Guzman (2002), p. 1861.

  130. 130.

    Guzman (2002), p. 1861.

  131. 131.

    Guzman (2002), p. 1861.

  132. 132.

    The MPIA has 17 Members, relative to the WTO’s 164.

  133. 133.

    Franck distinguishes between coherence and consistency—‘consistency requires that “likes be treated alike” while coherence requires that distinctions in the treatment of ‘likes’ be justifiable in principled terms’: Franck (1995) p. 144.

  134. 134.

    Franck (1995), pp. 50–66. ‘Right process’ reinforces ‘primary’ international law via ‘secondary’ rules which adjudicate how primary rules are to be interpreted and enforced.

  135. 135.

    See Sect. 1.

  136. 136.

    For example, the progressively formal swearing-in speech: Steger (2003), p. 131.

  137. 137.

    For the list of MPIA arbitrators, see Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12/Suppl.5 (Notification of MPIA Pool of Arbitrators) 1.

  138. 138.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 8.

  139. 139.

    Franck (1995), pp. 50–66.

  140. 140.

    Chayes and Chayes (1998), p. 123.

  141. 141.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 5.

  142. 142.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Art 10.

  143. 143.

    It is likely that the arbitrators will borrow from existing Appellate Body ‘case law’ to determine the meaning of ‘substantial interest’, as the same language is used in Article 10.2 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2.

  144. 144.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 16. Note also that Rule 24, Working Procedures for Appellate Review, WT/AB/WP/6 (1995) applies mutatis mutandis: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 16.

  145. 145.

    Koh (1997), pp. 2601–2602.

  146. 146.

    DSU – Article 17 (Practice), (WTO Analytical Index: Guide to WTO Law and Practice, Annex 2: Dispute Settlement Understanding) [1.4.4] <https://www.wto.org/english/res_e/publications_e/ai17_e/ai17_e.htm> (last accessed 11 August 2021); Simon Lester, ‘Can Interim Appeal Arbitration Preserve the WTO Dispute System?’ (2020) 77 Herbert A. Stiefel Center for Trade Policy Studies Free Trade Bulletin, Cato Institute, 2. High appeal rates could also be explained as Members defending their interests to the fullest extent, making their actions more justifiable to their domestic constituents.

  147. 147.

    DSU – Article 17 (Practice), (WTO Analytical Index: Guide to WTO Law and Practice, Annex 2: Dispute Settlement Understanding) [1.4.4] <https://www.wto.org/english/res_e/publications_e/ai17_e/ai17_e.htm> (last accessed 11 August 2021). The Appellate Body is also one of the most prolific of the international state-to-state dispute resolution systems. Between 1 January 1995 and 1 October 2016 a total of 566 disputes were registered with the WTO, resulting in the issuance of 202 Panel reports and 127 Appellate Body decisions. During the same period, the International Court of Justice produced 65 judgments and 5 advisory opinions, while the International Tribunal on the Law of the Sea produced 12 judgments, 2 advisory opinions and issued orders in 11 cases: Van den Bossche and Zdouc (2017), p. 165 [1].

  148. 148.

    For example, in May 2018 the European Union and Canada’s joint proposals to reform the Appellate Body and launch the selection process for arbitrators was met with approval by over 70% of Member-States: Payosova, Hufbauer and Schott (2018) <https://www.piie.com/blogs/trade-investment-policy-watch/eu-proposals-resolve-wto-appellate-body-crisis-represent-partial> (last accessed 11 August 2021). On 22 November 2019, 117 WTO members issued a call at the WTO’s Dispute Settlement Body meeting to launch the process for filling vacancies on the Appellate Body, marking 2 years since proponents first issued their joint appeal: WTO Secretariat’s Information and External Relations Division, ‘Members reiterate joint call to launch selection process for Appellate Body members’ (Media Release, 22 November 2019) <https://www.wto.org/english/news_e/news19_e/dsb_22nov19_e.htm> (last accessed 11 August 2021).

  149. 149.

    Saunders (2021).

  150. 150.

    China and Brazil are already signatories. India is not a signatory due to sensitivities surrounding sugar subsidies, tariffs on IT goods, and the withdrawal of their developing country status: Malkawi B, ‘MPIA and Use of Arbitration: Bypassing the WTO Appellate Body’. The Jurist, 28 May 2020 <https://www.jurist.org/commentary/2020/05/bashar-malkawi-mpia-wto-appellate-body/> (last accessed 11 August 2021.

  151. 151.

    Malkawi B, ‘MPIA and Use of Arbitration: Bypassing the WTO Appellate Body’. The Jurist, 28 May 2020) <https://www.jurist.org/commentary/2020/05/bashar-malkawi-mpia-wto-appellate-body/> (last accessed 11 August 2021).

  152. 152.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 12 (emphasis added).

  153. 153.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 14.

  154. 154.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 9.

  155. 155.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble.

  156. 156.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 2 also states that “…such situation is deemed to arise where, on the date of issuance of the final panel report to the parties, there are fewer than three Appellate Body members.”

  157. 157.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 15; Government of Canada, ‘Statement by Ministers, Davos, Switzerland, 24 January 2020’ (Press release, 24 January 2020) <https://www.international.gc.ca/world-monde/international_relations-relations_internationales/wto-omc/2019-01-24b-davos.aspx?lang=eng> (last accessed 11 August 2021); Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble, Annex 1, 2, Annex 2, 5; The EU Commissioner for Trade Phil Hogan described the agreement as but a “stop-gap measure” and reaffirmed the EU’s continued commitment “to restore the appeal function of the WTO dispute settlement system as a matter of priority”: European Commission, ‘EU and 15 World Trade Organization members establish contingency appeal arrangement for trade disputes’ (Press release, 27 March 2020) <https://ec.europa.eu/commission/presscorner/detail/en/IP_20_538> (last accessed 11 August 2021).

  158. 158.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 5. It is not clear how this partial re-composition is to occur, other than a reference to the original criterion and selection process, which does not speak to when that process should be initiated, whom it should be initiated by or how to decide which arbitrator will be subject to ‘re-composition’.

  159. 159.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 2, 6.

  160. 160.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 13. The first review is scheduled for 27 March 2021, 1 year after the date of the original Communication.

  161. 161.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) 13. Most processes in the MPIA can also be modified at any time by consensus.

  162. 162.

    See Sect. 2 for a greater explanation of how the MPIA preserves the DSS and avoids the ‘appeal into the void’.

  163. 163.

    As per the drafters’ intentions: Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble.

  164. 164.

    Pauwelyan is now an MPIA arbitrator.

  165. 165.

    Pauwelyn (2005), p. 4; Hirschman (1970), p. 33.

  166. 166.

    Ehlermann (2002), p. 4; Van den Bossche (2005b), p. 1.

  167. 167.

    US criticism of the Appellate Body has transitioned from ‘pushback’ (“ordinary resistance occurring within the confines of the system but with the goal of reversing developments in law”) to ‘backlash’ (“extraordinary resistance challenging the authority of … [the Appellate Body] with the goal of not only reverting to an earlier situation of the law, but also transforming or closing … [the Appellate Body]”: Madsen et al. (2018), p. 203. Compare this with smaller economies who typically pursue negotiating tactics centred on collaboration and coalition-building.

  168. 168.

    Schneider (2019) <https://onlinelibrary.wiley.com/doi/full/10.1111/nejo.12280> (last accessed 11 August 2021).

  169. 169.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995), Art IX:2; Appellate Body Report, United States – Import Measures on Certain Products from the European Communities, WT/DS165/AB/R (11 December 2000) [92]; Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996) 13; Payosova, Hufbauer and Schott (2018) <https://www.piie.com/blogs/trade-investment-policy-watch/eu-proposals-resolve-wto-appellate-body-crisis-represent-partial> (last accessed 11 August 2021).

  170. 170.

    The ability to issue advisory opinions is not always a feature of courts. See, for example, Re Judiciary & Navigation Acts (1921) 29 CLR 257 in which the High Court ruled it was not competent to issue advisory opinions due to Australian Constitution s 76.

  171. 171.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Arts 11, 17.2, 19.2.

  172. 172.

    This is ‘undemocratic’ because the Appellate Body is accountable to neither Members nor the citizens they represent: United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 53, 57.

  173. 173.

    United States Trade Representative (USTR), Report on the Appellate Body of the WTO (Report, Office of the United States Trade Representative Ambassador Robert E. Lighthizer, February 2020) 55.

  174. 174.

    Payosova, Hufbauer and Schott (2018) <https://www.piie.com/blogs/trade-investment-policy-watch/eu-proposals-resolve-wto-appellate-body-crisis-represent-partial> (last accessed 11 August 2021).

  175. 175.

    While there are more than two acceptable ‘voice-exit’ ratios, this chapter presents them as two binary ‘visions’ for the WTO for the purpose of simplicity and comprehension—‘visions’ being a simple means by which to convey the conflicting scholarship on what role the Appellate Body should play, as governed by the intention of Member-States. One major proponent of this approach is the European Union. Even before the MPIA, the EU was active in seeking interim arbitration arrangements to mitigate the impending crisis. For example, the EU-Canada interim appeal agreement signed on the 25 July 2019 and the EU-Norway from October 2019. Both agreements assert the signatory’s intentions to maintain, as much as possible, the function of the WTO’s DSS, by seeking to replicate the procedures of that institution: Saunders (2021).

  176. 176.

    Ehlermann (2002), p. 4; Van den Bossche (2005b), p. 1.

  177. 177.

    Pauwelyn (2005), p. 5.

  178. 178.

    Pauwelyn (2005), p. 5.

  179. 179.

    Van den Bossche and Zdouc (2017), p. 192.

  180. 180.

    Boisson de Chazournes (2005), p. 181.

  181. 181.

    Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, 198.

  182. 182.

    Boisson de Chazournes (2005), p. 198.

  183. 183.

    Boisson de Chazournes (2005), p. 200.

  184. 184.

    Boisson de Chazournes (2005), p. 200.

  185. 185.

    See Sect. 3.1.

  186. 186.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble, 1, 15.

  187. 187.

    Malkawi B, ‘MPIA and Use of Arbitration: Bypassing the WTO Appellate Body’. The Jurist, 28 May 2020 <https://www.jurist.org/commentary/2020/05/bashar-malkawi-mpia-wto-appellate-body/> (last accessed 11 August 2021).

  188. 188.

    Article 2(4) DSU requires decision-making by consensus, granting Members an effective veto power: Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 187 UNTS 3 (entered into force 1 January 1995) Annex 2, Article 2.4.

  189. 189.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Preamble (emphasis added).

  190. 190.

    Saunders (2021); Johnson K, ‘How Trump May Finally Kill the WTO’. Foreign Policy, 9 December 2019 <https://foreignpolicy.com/2019/12/09/trump-may-kill-wto-finally-appellate-body-world-trade-organization/> (last accessed 11 August 2021). For examples of the Obama administration’s actions see: Shaffer G, ‘Will the US Undermine the World Trade Organization?’ Huffington Post, 23 May 2016 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3087524&download=yes> (last accessed 11 August 2021); Hufbauer (2011) <https://www.piie.com/blogs/realtime-economic-issues-watch/wto-judicial-appointments-bad-omen-trading-system> (last accessed 11 August 2021).

  191. 191.

    Monnier (2002), p. 512.

  192. 192.

    Arbitration Award, United States – Section 110(5) of the US Copyright Act – Recourse to Arbitration under Article 25 of the DSU, WT/DS160/ARB25/1 (09 November 2001).

  193. 193.

    Malkawi (2007), pp. 183–185.

  194. 194.

    Boisson de Chazournes (2005), p. 244.

  195. 195.

    Malkawi (2007), pp. 185–188.

  196. 196.

    Oxford English Dictionary (online at 27 September 2020) ‘solution’ <https://www-oed-com.virtual.anu.edu.au/view/Entry/184375?rskey=W5iEyV&result=1#eid> (last accessed 11 August 2021).

  197. 197.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 13.

  198. 198.

    Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes, JOB/DSB/1/Add.12 (30 April 2020) Annex 1, 9.

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Acknowledgements

To my thesis supervisor, Dr Imogen Saunders. Thank you for being the person to first pique my interest in International Trade Law. Thank you for answering, with endless patience, my endless lists of questions. Thank you for challenging me and teaching me to always do better. To my many mentors at the ANU College of Law—in particular, Dr Heather Roberts and Associate Professor Sarah Heathcote. I am lucky to have such wonderful women to model myself after. To my family, who have endured my enthusiasm for this topic with lots of love and perhaps a little bemusement.

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  1. Australian National University, Canberra, ACT, Australia

    Georgie Juszczyk

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  1. Leuphana University of Lüneburg, Lüneburg, Germany

    Jelena Bäumler

  2. Bundeswehr University Munich, Neubiberg, Germany

    Christina Binder

  3. Saarland University, Saarbrücken, Germany

    Marc Bungenberg

  4. University of Erlangen-Nuremberg, Erlangen, Germany

    Markus Krajewski

  5. Humboldt-Universität zu Berlin, Berlin, Germany

    Giesela Rühl

  6. University of Glasgow, Glasgow, UK

    Christian J. Tams

  7. Leuphana University of Lüneburg, Lüneburg, Germany

    Jörg Philipp Terhechte

  8. Université de Lausanne, Lausanne, Switzerland

    Andreas R. Ziegler

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Juszczyk, G. (2021). Legitimacy Crisis at the World Trade Organisation Appellate Body: Other Ways Than the MPIA?. In: Bäumler, J., et al. European Yearbook of International Economic Law 2021. European Yearbook of International Economic Law, vol 12. Springer, Cham. https://doi.org/10.1007/8165_2021_75

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