This looks at the WTO Appellate Body crisis in some depth.
A simpler version is here
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See also:
How the WTO deals with problem trade measures—it’s not just dispute settlement and The WTO is surprisingly busy — considering it’s supposed to be dead
Skip the updates
UPDATES
July 28, 2023 — By now, 130 WTO members (80% of the membership) were calling for Appellate Body judges to be appointed, but in the July 28, 2023 meeting the US refused for the 67th time to join consensus (see agenda). Go to the May 17, 2023 paper; WTO documents search for all versions (including possible newer ones with additional sponsors).
January 26, 2022 — Brazil moved to authorise (under Brazilian law) unilateral action against countries that lose in a panel ruling and appeal “into the void” to leave a dispute inconclusive.
Legal opinion seems to be that this could violate WTO rules, but so long as the Appellate Body was unable to function, Brazil could also appeal “into the void” any legal challenge in the WTO. “In the absence of the Appellate Body, this does not seem totally bonkers,” tweeted law professor Geert Van Calster
News of the move came from Tatiana Palermo, President of Palermo Strategic Consulting and a former Brazilian vice-minister and negotiator, who tweeted:
“Brazil’s President Bolsonaro has signed an executive order allowing #Brazil to retaliate unilaterally ([including] suspending IPR [intellectual property rights] obligations) in cases where the losing party appealed the #WTO panel ruling into the void & continues with unfair trade practices.”
The executive order is here, in Portuguese.
October 26, 2021 — María Pagán, the Biden administration’s nominee ambassador to the WTO, told a US Senate Finance Committee hearing on her nomination that the US does want to “restore the Appellate Body”, a point that had never been clarified since the Trump administration blocked the appointment of appeals judges:
“I think there’s consensus that the WTO, and particularly the Appellate Body, need to be reformed. I guess on the other hand, we all have different views of what reform means, and particularly with respect to the Appellate Body. What we want, and if confirmed what I will work hard to do, is to have conversations so that we can restore the Appellate Body and the dispute settlement system to what we thought we had agreed to.”
To underscore that this is an official position, Henry Hodge, spokesperson of the Office of the US Trade Representative, tweeted Bloomberg’s story on the statement with the headline “Biden’s nominee to WTO wants to restore Appellate-Body function.”
Pagán’s remark came on the day the US blocked the appointment of appeals judges for the 47th time at a WTO meeting in Geneva. It was the first sign of any new thinking in Washington. But it was too late for anything to happen in time for the November 30 to December 3 Ministerial Conference.
Trade lawyer Simon Lester said the remark is “positive” but that restoring the system “to what we thought we had agreed to” may prove to be “tricky”, a point Pagán herself acknowledged.
By Peter Ungphakorn
POSTED AUGUST 21, 2019 | UPDATED AUGUST 12, 2023
A casual glance at the headlines might have misled us into thinking the World Trade Organization (WTO) would grind to a halt at the end 2019, that the blame lay entirely with US President Donald Trump, and that the WTO’s demise would bring anarchy to world trade.
Only the last of those three assertions is possibly correct; and only if the WTO really does die — which it certainly won’t, not in the near future.
This is an attempt at an explanation. It shows that even WTO dispute settlement could well survive, but in a less powerful form. Other important work in the WTO will continue, and therefore so will the WTO itself.
But be warned: simple explanations of complex issues cannot tell the whole story. And even this attempt is not that simple. Sorry.
It’s also important to remember that dispute settlement in the WTO is not about any old disagreement. It’s only about whether countries are keeping their promises — complying with the agreements they signed. The agreements are often called “WTO rules” for short, but they are really promises that member governments have made to each other.
CONTINUE READING OR JUMP TO
UPDATE
ONLY ABOUT APPEALS | What’s happening? | And the present crisis?
THE PROBLEM | What’s the US’s complaint? | Did Trump start this? | Is it an excuse? | Why has “overreach” happened? | What does this mean?
POSSIBLE SOLUTIONS | Alternatives | Appeal by arbitration | Indonesia-Vietnam: agreement not to appeal | David Walker’s consultations and draft decision
TO SUM UP
SOME TECHNICALITIES Appellate Body members and their terms; Zeroing; Dispute settlement is not essential
FIND OUT MORE
SEE ALSO
The short version of this article | Arbitration — the stop-gap when WTO appeals are unavailable | Appeals ‘into the void’
ONLY ABOUT APPEALS
What’s happening?
This is not even about the whole dispute settlement system, but one vital part of it: appeals. That fact alone means dispute settlement can continue in some form.
In 1994 over 120 countries agreed to update the multilateral trading system. They created the WTO, which came into being the following year.
Among their reforms, they created a more effective system for settling legal disputes over alleged violations of WTO agreements.
(They also expanded the system, adding services and intellectual property to the previous focus on trade in goods.)
Dispute settlement was more effective in a number of ways. Two are important, here:
- “Adoption” of rulings. Previously (under the General Agreement on Tariffs and Trade or GATT), dispute rulings would only hold if there was consensus support among all members. If any country objected there would be no consensus. This meant countries losing a case could block the ruling.
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The new WTO dispute settlement system reversed this. From now on rulings could only be blocked by consensus. The rulings would stand (or more accurately, be “adopted” by the membership) more or less automatically..
(Jargon: “positive consensus” — consensus needed to adopt. Replaced by “negative consensus” — consensus needed to reject).
- Appeals. Under GATT, appeals were not possible. The WTO system introduced an appeals stage, a double-check aimed at both strengthening legal interpretation and easing concerns that poor first-stage rulings would be adopted semi-automatically. Appeals can only be on points of law, not evidence.
This meant disputes now went through two stages.
First stage, cases are heard by “panels” of three independent experts. The panellists are picked by the countries in the dispute. If those countries cannot agree, then the WTO director-general picks the panellists. The panels issue rulings (officially panel “reports”), which are either appealed or adopted by the WTO membership in meetings of the Dispute Settlement Body. This comprises all members and is responsible for the whole dispute settlement system.
Second stage, appeals, WTO members created a new institution: the Appellate Body, consisting of seven judges (officially Appellate Body “members”), three of them hearing each appeal, along with a small staff. It is so special it’s not even part of the WTO Secretariat, although it is in the same building and administratively its office reports to the WTO director-general. Its rulings are also adopted by the WTO membership in the Dispute Settlement Body.
If the case is appealed, the two rulings are adopted by the WTO membership simultaneously: the panel ruling with any amendments made by the Appellate Body.
The new rules also gave the system teeth. If the complaint is upheld, the complaining countries can retaliate or seek compensation through alternative benefits in trade.
This made WTO dispute settlement unique in international arrangements and not just in trade. Some have called it the “jewel in the crown” of the WTO.
And the present crisis?
The first stage is not affected by the crisis. Panels can hear cases and issue rulings as normal.
It’s the second stage that’s in trouble. The US has blocked the replacement or reappointment of appeals judges whose terms have expired. There are normally seven. At least three are needed to hear a case. Finally, there were only three left. Then, from December 10, 2019, there was only be one and appeals were no longer be possible — or they would disappear “into the void”. From November 30, there were no appeals judges left. (A list of Appellate Body judges and their terms is here.)
THE PROBLEM
What’s the US’s complaint?
MINUTE DETAIL ON 174 PAGES
All these arguments are made regularly in US statements, such as this one by Ambassador Dennis Shea to the WTO General Council, July 23, 2019.
On February 11, 2020, the Office of the US Trade Representative (USTR) issued a 174-page report cataloguing the US complaints about the Appellate Body’s interpretation of legal points in minute detail.
“The Report demonstrates the Appellate Body’s persistent failure to follow basic WTO rules and highlights several examples of how the Appellate Body has altered WTO Members’ rights and obligations through erroneous interpretations of WTO agreements,” a USTR press release said.
Unsurprisingly, the report’s conclusions are controversial. See for example the differing opinions of these legal experts: Steve Charnovitz, Julia Qin and Simon Lester.
To sum up some pretty complex legal arguments:
“Overreach”. The US accuses the Appellate Body of rewriting the rules by trying to fill in gaps in WTO law (the WTO agreements). The appeals judges do this by drawing on provisions in international law outside the WTO to interpret what the rules mean. This, the US argues, upsets the balance of rights and obligations that were the reason why countries reached agreement in the first place. By interpreting the law in this way, the Appellate Body has “overreached” its mandate and altered countries’ rights and obligations in ways that WTO members have not negotiated, it says.
Legal precedents. Worse, in the US’s view, this has then created legal precedents. Panels and appeal rulings often cite previous Appellate Body interpretations in new cases. So, the US says, the new judgements are added to the body of WTO law — without negotiation.
Broken deadlines. The US also complains that the Appellate Body regularly breaks the 90-day deadline for circulating its findings. And it objects to appeals judges continuing to work on their cases when the deadline is missed and if their terms have also expired. As the number of judges has dwindled and the backlog of appeals cases has lengthened, meeting the deadline is now impossible.
The US is not alone. The EU and some other members have similar concerns about overreach, and are starting to present proposals to deal with the problem. But the US has only raised objections.
The Appellate Body Secretariat. In early December 2019, days before the Appellate Body was due to lose its quorum, news broke of a bombshell.
One of the two Appellate Body judges whose terms were about to expire, the US judge Thomas Graham, was reported to have demanded that WTO Director-General Roberto Azevêdo fire Werner Zdouc, the head of the Appellate Body’s Secretariat (technically separate from the WTO Secretariat, but reporting to its director-general).
Behind the scenes, the US had long blamed Zdouc, a civil servant, for interfering in appeals, including “overreach”.
Azevêdo is said to have refused. Graham then said he would stop working completely on December 11 even though rules allow Appellate Body judges to continue to work on appeals they had already started. The story was confirmed here (paywalled)
By then 14 appeals were listed as incomplete on the WTO website, among them one on plain packaging for tobacco products.
On December 3 and 10, Graham, as outgoing chair of the Appellate Body confirmed in a letter to the chair of the Dispute Settlement Body that work would continue on three almost-completed appeals:
- Russia—Railway Equipment, DS499 (a complaint from Ukraine), expected to be complete on December 10
- US—Supercalendered Paper, DS505 (a US complaint), expected to be completed on December 10
- Australia—Tobacco Plain Packaging DS441 and DS435, (complaints from several countries), expected to be completed in late March 2020.
At the same time, the US was reported to have threatened to block the WTO budget for 2020–21, and then the 2021 portion only, subject to tough conditions including slashing the allocation for the Appellate Body. The 2020 budget was agreed at the December 2019 General Council, not the 2021 portion.
Did Trump start this?
No, it began during the administration of his predecessor, Barrack Obama.
But the US position has hardened because of Trump’s disdain for the WTO, multilateralism and systems based on rules rather than power. Still, the US remains active in most areas of WTO activities.
The US continued to appeal first-stage panel rulings into the final months before the Appellate Body was unable to function, but within the 90-day period when appeals should normally be completed.
But times were no longer normal. As the remaining Appellate Body judges dwindled to three, the backlog of Appeals cases lengthened to an unmanageable 13, at the original time of writing (August 2019), according to the WTO website. They were filed between May 2018 and August 2019. (The list is kept up-to-date here.)
Is it an excuse?
Some observers argue that the real problem is that the US lost some cases that were politically important for its powerful lobby groups, in particular on “zeroing” in antidumping calculations (explained here).
Rumours spread that top US trade officials want to return to the old GATT system (pre-WTO), with no appeal and rulings only adopted by consensus.
Comments by US Trade Representative Robert Lighthizer (the Cabinet minister in charge of US trade negotiations and agreements) have fuelled the speculation.
“Before 1995, before the WTO, under the GATT, there was a system where you would bring panels and then you would have a negotiation. And trade grew and we resolved issues eventually. And it’s a system that was successful for a long period of time,” he said in September 2017.
But he went on: “Now, under this binding dispute-settlement process, we have to figure out a way to have — from our point of view — to have it work.”
So, whether the US really wants to roll back time is unclear, and is doubted by some trade experts.
Nevertheless, rulings against the US over zeroing are clearly a sore point.
Why has ‘overreach’ happened?
It happened because WTO agreements are often unclear, in the way they are written, or because unexpected situations arise. And crafty trade lawyers regularly find new, unintended ways of using the rules.
Even if the negotiators had drafted them as clearly and precisely as humanly possible, they could not have anticipated everything that would crop up in the future.
In fact, some key provisions are deliberately vague, because of “constructive ambiguity”. This is when a deadlock is broken by a fudge. Text is written in a way that allows all sides to claim they got what they wanted. If their interpretation is challenged the reply is “see you in court” — meaning “see you” in WTO dispute settlement, and ultimately “see you” in the Appellate Body.
In other words one of the functions of WTO dispute settlement is to clarify unclear agreements.
Suddenly the apparently simple task — of passing judgement without affecting rights and obligations — doesn’t look so simple after all.
How can you clarify rules that were deliberately vague?
Or do you say “this is ambiguous so we can’t rule either way”? That would leave rights and obligations fairly and squarely in the eye of the beholder, not in a body of law that’s supposed to be objective.
The Appellate Body chose to dig deeper into the meaning of some of the words, looking beyond WTO agreements and at other sources such as international law outside the WTO.
“Between ‘clarifying rules’ and ‘not adding to or diminishing obligations’, there is scope for interpretation of the rules,” tweeted Debra Steger in this conversation. Steger is a Canadian legal expert who negotiated the new WTO dispute settlement rules, and became the first head of the Appellate Body Secretariat.
“Whether or not you agree with certain decisions of the AB [Appellate Body], it is a major step to say that there are a lot of AB reports where it ‘makes rules’,” she said.
Chief appeals judge Ujal Singh Bhatia echoed that argument: “Adjudicators have to discern the ‘ordinary meaning’ to be given to treaty terms in their context and in light of the object and purpose of the instrument in which they appear, and they may have recourse to supplementary means.”
Addressing “constructive ambiguity” directly, Bhatia distinguished between lack of clarity and real gaps in the law. He said clarifying ambiguity is a task assigned to the Appellate Body by WTO rules.
He was referring to Article 3.2 of the Dispute Settlement Understanding, which says the system has “to clarify the existing provisions of [WTO] agreements in accordance with customary rules of interpretation of public international law.” It also says rulings “cannot add to or diminish the rights and obligations provided in the covered agreements.”
Essentially, Bhatia and Steger are arguing that the Appellate Body has to do both; the US places more weight on the part about preserving “rights and obligations”.
What does this mean?
Another Canadian legal expert, Robert McDougall, says an incapacitated Appellate Body undermines three key features of WTO dispute settlement:
- “quasi-automatic” adoption of rulings
- a chance to correct “bad” panel rulings, through appeal
- consistency between disputes — by setting legal precedent and creating case law.
But, he stresses, this does not mean the end of WTO dispute settlement, let alone the WTO itself:
“While WTO members are justifiably worried about the consequences of a diminished dispute settlement mechanism, contrary to the scenarios posited by some, it will not bring about the collapse of the rules-based trading system.
“Of course, hard cases will again be more difficult to resolve, some members may take opportunistic trade measures, and the trading system may be less secure and predictable (if that is possible). But a diminished dispute settlement mechanism is unlikely, on its own, to open the floodgates for trade distorting measures.
“WTO members will continue to respect their trade obligations, which will remain binding, just as they do their international commitments in other areas. The evaluation of the consistency of national measures with the trade rules will not change, even as the evaluation of the risk, and consequence, of legal challenge obviously will. The prospect of formal legal challenge is however only one, and not even the most significant, factor in the adoption of measures that might affect trade.”
What has happened so far, both within dispute settlement and in other important areas of WTO work, suggests he is right.
POSSIBLE SOLUTIONS
WTO members are now trying to break the impasse in talks coordinated by New Zealand ambassador David Walker (see below), who was also the 2019–20 chair of the Dispute Settlement Body. Walker became chair of the General Council in early 2020. It was unclear whether he would continue the consultations.
(As the WTO went into COVID-19 coronavirus lockdown in March 2020, there were rumours that Director-General Roberto Azevêdo would take over the task, but by May he had announced he was leaving his position a year early and there are no accounts of him working on this crisis before he left in August.)
Some serious and detailed proposals have been tabled. One is from 14 members (42 if the EU’s member states are counted) in late 2018. It tackles most of the points the US has raised including missed appeals deadlines, Appellate Body judges continuing to work on their cases after their terms have expired, “overreach” and legal precedent. The proposal does not go into actual rulings such as on “zeroing”.
There is little sign that the US is willing to accept any solution. What would it take? Perhaps agreement to legalise “zeroing” formally — unlikely to be accepted by most countries. Or perhaps a new US administration and a revival of American faith in rules-based multilateralism, but even that is uncertain.
Worse, “if the Appellate Body and with it the WTO’s binding, two-stage dispute settlement system, cannot be restored soon, it is not likely to come back,” writes former appeals judge Jennifer Hillman.
She argues that the present two-stage dispute settlement set-up was achieved because the US was unusually in favour of multilateralism in the 1980s and 1990s, at the end of the Cold War. There are no signs that Congress will regain enthusiasm for it. she says.
Alternatives
So far, two serious alternatives have been agreed by some countries to bypass formal appeals. Patches like these could well keep dispute settlement going, but they are weaker than with formal appeals:
- Appeal, but in a different way — through arbitration (under Article 25 of the WTO dispute settlement agreement, first officially called an “Understanding”, then a “multi-party interim appeal arbitration arrangement”), a route favoured by 50 members including the EU, China and Canada, but not by so far, at least, by the US, Japan, UK and others
- Just don’t appeal — by agreement, as in a dispute involving Indonesia and Vietnam, and intriguingly one involving the United States
They are the only two ideas that some WTO members are actually putting into practice. Both are voluntary.
Countries that have agreed to use these alternatives may accept that the findings are binding on them, but members in general are under no obligation to use either method, or any other. It seems unlikely that the US would.
Some other ideas are floating around. So far they have not caught on.
One is for voting to appoint Appellate Body members instead of by consensus.
Another, from Hillman, is to remove “trade remedies” (anti-dumping measures, tariffs to “countervail” subsidies, and safeguard import restrictions in response to import surges) from the mainstream dispute settlement system, including the possibility of no appeals in these cases.
A third is a left-field proposal from trade lawyer Simon Lester suggesting that the countries in a dispute might be able to manipulate Article 17 of the rules on disputes (on appeals) to turn an arbitration result into a ruling formally adopted by the WTO membership.
In January 2020, Hillman published a new paper proposing three reforms to get the Appellate Body back on track: adopt the principles in David Walker’s proposal (see below); establish an oversight committee and audit to ensure compliance; Appellate Body Secretariat members to serve no longer than eight years — the maximum term for an Appellate Body member.
This is more detail on the two solutions WTO members are actually working on:
Appeal by arbitration
On August 3, 2020, a group of 50 WTO members — 30% of the membership — announced that an alternative to formal appeal was up and running. This would use arbitration voluntarily under Article 25 of the Dispute Settlement Understanding, the WTO agreement government legal disputes. (See this from the EU and this from Canada.)
A fuller account of this can now be found here
Indonesia-Vietnam (and US-S.Korea): agreement not to appeal
In March 2019, Indonesia and Vietnam agreed that in one dispute between them, if the Appellate Body could not function, they would simply accept the first-stage panel report without appealing.
So far only one case has seen this approach, a Vietnamese complaint (DS496) about Indonesia imposing “safeguard” trade barriers on iron and steel products. This was not about the original legal ruling, which had already been appealed, but on proceedings to determine whether Indonesia had complied with the ruling.
The method allows the panel ruling to be adopted by the Dispute Settlement Body, adding it to WTO jurisprudence.
“This kind of agreement between parties to a dispute is one way that WTO dispute settlement can continue to function if the Appellate Body crisis is not resolved. It will be interesting to see how quickly the idea spreads,” wrote trade lawyer Simon Lester.
Then almost unnoticed, on February 10, 2020, South Korea and the US circulated a document stating that they had agreed to accept arbitration without appealing, in an anti-dumping case, which the US lost. Again, this was not about legal interpretation of the original case, but whether the US had complied with the original ruling.
Simon Lester spotted the document and commented: “This seems to indicate that the US is willing to forgo appeals ‘into the void’ and also suggests some degree of openness on the part of the US towards Article 25 [arbitration] as an alternative appeal process.”
(“Appealing into the void” is the idea of appealing a ruling when the Appellate Body cannot function, and therefore deliberately preventing a conclusion to the case.)
David Walker’s consultations and draft decision
On October 15, 2019, New Zealand ambassador David Walker submitted his latest draft decision for the WTO General Council to break the impasse (two months later, slightly revised for the December 9, 2019 meeting). This followed several months of behind-the-scenes consultations with members in an attempt to find common ground.
The draft decision was annexed to his fourth report (pdf) to the General Council on his consultations. It would:
- Oblige the Dispute Settlement Body (DSB) to fill Appellate Body vacancies as they arise. The DSB is the General Council, meeting to oversee WTO legal disputes. Conditions would include restricting only to WTO members the power to appoint the judges
- Tighten the obligation on the Appellate Body to rule within 90 days
- Prevent appeals from delving into countries’ domestic laws (“municipal law”). Specifically: “The DSU does not permit the Appellate Body to engage in a ‘de novo’ review [re-open rulings involving domestic law made in the first (panel) stage] or to ‘complete the analysis’ of the facts of a dispute.” In an appeal, members would agree to refrain from “advancing extensive and unnecessary arguments” so that the appeal is strictly about legal issues and not factual evidence (Article 17.6 of the rules on dispute settlement)
- Avoid “advisory opinions” by the Appellate Body and restrict appeals to issues raised by the countries in the dispute
- Rule out legal precedent being set by dispute settlement proceedings, although “consistency and predictability in the interpretation of rights and obligations under the covered agreements is of significant value to Members” and “panels and the Appellate Body should take previous Panel/Appellate Body reports into account to the extent they find them relevant in the dispute they have before them.”
- Prevent “overreach” — altering the rights and obligations that members negotiated in the WTO agreements. Specifically for anti-dumping cases, panel and appeal rulings should be based on a provision (Article 17.6(ii)) in that agreement that says that if a provision in the agreement is ambiguous — it could be interpreted in several ways — then an anti-dumping measure would be legal if it complied with any of those interpretations (addressing US concerns about “zeroing” being ruled illegal).
- Create a regular dialogue between the Dispute Settlement Body and the Appellate Body, with annual informal meetings between the two and ground rules to preserve the Appellate Body’s independence
In the General Council meeting, the US poured cold water on the idea that members were converging on a solution.
“As a result of these fundamental questions not yet being addressed, we do not see convergence among Members with respect to an understanding and appreciation of the concerns raised,” the US said.
In the meeting on December 9 (the day before the Appellate Body would cease to function), the US repeated its objections.
The EU called for a negotiated solution instead of letting WTO dispute settlement become crippled, blamed the US for failing to propose any solution to the deadlock and insisted on its right to appeal dispute panel rulings. The EU said it would work on alternatives.
The following day, a mixed group of 54 countries issued a joint statement supporting the multilateral trading system. The group included both developed and developing countries, but not the major players. China, the EU, India and the US.
It said: “We reaffirm our commitment to resolve our trade disputes in accordance with the Dispute Settlement Understanding. We call on all Members to engage in dispute settlement proceedings in good faith and to act in a manner conducive to the prompt and final settlement of disputes.”
David Walker was picked to be the “facilitator” in these consultations by the General Council chairperson (at that time the Japanese ambassador) on January 18, 2019. The role is not tied to his 2019–2020 term as chair of the Dispute Settlement Body, which began over a month later.
His reports to the General Council, are:
- February 2019 (html with links to other documents, or pdf)
- May 2019 (html with links to other documents, or pdf)
- July 2019 (html version with links to other documents, or pdf)
- October 2019 (html with links to other documents, or pdf)
- December 2019 (html with links to other documents, or pdf)
The later ones include draft decisions Walker produced and revised from his consultations in an attempt to break the deadlock. So far all have been rejected by the US, meaning there is no consensus to adopt them. The US’s February 2020 report had 170 pages of complaints about the Appellate Body but no proposal for a solution.
TO SUM UP
So, WTO dispute settlement can muddle along, at least for a while, despite the crisis in the Appellate Body. Other WTO functions — monitoring and peer review of how the present agreements are implemented, negotiation, and technical assistance and capacity-building — can continue.
It’s not even clear if those areas of work would be hampered if dispute settlement broke down completely, although ultimately it would depend on countries continuing to have faith in the system as a whole. For now, we are a long way away from that.
But, as one expert put it: nothing compares to the Appellate Body.
SOME TECHNICALITIES
Technical notes:
- Appellate Body members and their terms: listed here
- Appealing “into the void”
- Zeroing: explained here
- Dispute settlement is not essential (but it helps): data here (short technical note) and here (full article)
FIND OUT MORE
- WTO dispute settlement on the WTO website including explanations and links to individual cases
- Simon Lester: What Did the U.S. Originally Have in Mind for the Appellate Body? “Uniform Interpretation” vs “A Coherent and Predictable Body of Jurisprudence” (March 23, 2021), Can Party Modifications to DSU Rules on Appellate Review Help with the Appellate Body Crisis? (August 18, 2019) and Some Comments on the Trump Administration’s Final Statement to the DSB on the Appellate Body (December 22, 2020). See also …
- … International Economic Law and Policy blog: on: “Appellate Body”, “WTO disputes”, “zeroing” (other keywords available)
- Holger Hestermeyer: Saving Appeals in WTO Dispute Settlement: The Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU (April 2, 2020)
- Mattijs Kempynck & Akhil Raina: Update from ‘the Void’: Questions for the new Interim Appeal Agreement (IAAA) (January 30, 2020)
- Jennifer Anne Hillman: A Reset of the World Trade Organization’s Appellate Body (“Three reforms could get it back on track”, January 14, 2020)
- James Bacchus and Simon Lester: The crucial role of a WTO appeals court (August 21, 2019), and a longer version, Of Precedent and Persuasion: The Crucial Role of an Appeals Court in WTO Disputes (September 12, 2019)
- Graham Cook: Humpty Dumpty and the Illusion of ‘Evolutionary Interpretation’ in WTO Dispute Settlement (August 20, 2019)
- Weihuan Zhou and Henry S Gao: ‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body (July 7, 2019; March 30, 2020)
- Markus Wagner and Weihuan Zhou: The WTO Dispute Settlement System: Just Another Victim on the Road to Tomorrow’s GATT? (July 2019)
- Markus Wagner: The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic? (June 2019)
- Jennifer Hillman: Three Approaches to Fixing the World Trade Organization’s Appellate Body: The good, the Bad and the Ugly? (2018)
- Robert McDougall: Impasse in the WTO Dispute Settlement Body: Consequences and Responses (December 2018); Crisis in the WTO: Restoring the Dispute Settlement Function (October 2018)
- Pieter Jan Kuiper: On the US Attack on the Appellate Body (November 2017)
- Debra Steger: The Founding of the Appellate Body (July 2017)
- Edwin Vermulst, Daniel Ikenson: Zeroing Under the WTO Anti-Dumping Agreement: Where Do We Stand? (2007)
- Duane W. Layton, Matthew J McConkey (Mayer Brown LLP): A Closer Look At ‘Zeroing’ In Anti-Dumping Calculations (September 2017)
Updates:
August 12, 2023 — under “updates”, adding the call from 130 members for appeals judges to be appointed
January 29, 2022 — under “updates”, adding Brazil’s unilateral move
October 27, 2021 — adding the update box on Pagán’s statement
March 24, 2021 — adding to “Find out More”
February 14, 2021 — correcting several hyperlinks, editing including to reflect events now in the past, etc
August 3, 2020 — updating section on arbitration as an alternative way to appeal, to reflect announcement of pool of 10 arbitrators
May 3, 2020 — updating same section to include the April 30 WTO document JOB/DSB/1/Add.12
April 3, 2020 — adding Holger Hestermeyer’s article to “Find out more”
March 27, 2020 — adding new draft on arbitration, from 16 WTO members, with editing on original text; editing references to David Walker who became General Council chair in early 2020
February 15, 2020 — adding references to the 174-page USTR report, and the US-S.Korea agreement not to appeal arbitration
January 24 and 31, 2020 — updating information on appeal by arbitration, to reflect the statement by 17 trade ministers; adding links to the Kempynck & Raina article on it
January 14, 2020 — adding the link to Jennifer Hillman’s article with its three proposals
January 1, 2020 — updating data on TBT and SPS to cover the WTO’s first quarter century, January 1, 1995–January 1, 2020, now moved here (short) and here (long)
2019 — adding Graham’s letter confirming that three appeals would be completed, and approval of the 2020 budget; adding references to the December 9 General Council meeting and the 54-country joint statement; updating the data on notifications, concerns raised and dispute, adding “full” disputes, excluding those withdrawn, settled out of court or dormant; adding the section on US judge’s demand that the head of Appellate Body Secretariat be sacked; adding “dispute settlement is not essential” section, with graphic on SPS and TBT measures and disputes; adding EU-Norway agreement, September 30, 2019 DSB meeting, tweaking bullet points on the Walker draft; adding section on David Walker’s consultations, and his photo; correction to clarify that the proposal for voting is only for appointing Appellate Body judges; adding links to articles by Graham Cook, Simon Lester, Markus Wagner, Jennifer Hillman; adding Hillman’s warning about the Appellate Body not coming back; adding Lester’s “party modification” proposal as another possible solution; adding link to Bacchus/Lester article.
Image credits:
Photos | CC0 (including boxer by Heloisa Freitas via Pexels and reaching hand by Gage Walker via Unsplash).
Except: Ujal Singh Bhatia and David Walker | WTO
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