The WTO Dispute Resolution Process : Why is it Broken?

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There are two instances where there used to be two instances of dispute settlement at the WTO and this was kind of always considered the “Crown Jewel” of the WTO as an organization.

So how did it work? Well first of all, if you were a Member State of the WTO and you felt that your rights had been violated under one of the WTO’s covered agreements, you could in essence, bring one of the other Member States of the WTO to court and you’d bring them to basically the trial level, you’d bring them to a panel, and if you didn’t like the result of that panel’s decision, you could appeal to the WTO’s Appellate Body.

The Appellate Body is composed of seven people and they’re actually a standing body, which is unusual in the history of WTO and GATT dispute settlement. However, here’s where the crisis has arisen.

Since the Trump Administration came into power in the United States, they have systematically blocked appointments of new members to the Appellate Body and now there are no more jurists to hear disputes at the Appellate Body and so that means that the WTO no longer has two instance dispute settlement system. And it actually has also affected the trial level, the panel level of dispute settlement at the WTO as well because a panel report isn’t able to be formally adopted if it’s still under appeal. So if you lose at the trial level you can just appeal what’s called “Into the void” to the non-existing Appellate Body mechanism and have your judgment kind of stuck in legal limbo forever. So not only has the United States kind of gotten rid of this the appellate level of judicial review, but they’ve also in essence, made it very difficult for states to have binding dispute settlement at the trial level as well.

One of the critiques that the United States has levied at the Appellate Body is that its jurisprudential acquis has been too favorable to State-led capitalist countries. That is, they’re worried that the Appellate Body has been too soft on China in the way that it has interpreted the rules of the WTO. And in particular, the United States has been very critical of the way that the Appellate Body has interpreted the WTO rules on anti-dumping and other types of trade remedies especially in response to State subsidies.

The critique is too easy on China and so the question is “Is that critique valid?” There is some validity to the argument but not in the way that the United States has presented the argument. So the US has argued that the problem with the Appellate Body’s approach to China is that it represents overreach or judicial activism that the Appellate Body has sort of filled in gaps in the text of the WTO’s legal agreements and in so doing, kind of arrogated themselves to kind of a law maker rather than a law interpreter or a law applier and that is the way in which they kind of been overly permissive of state-led capitalism.

We’ve in our writing, we’ve said that there may be some truth to the US claim that the trade remedies cases were wrongly decided but not for the reasons that the United States has identified. We’ve suggested that what the Appellate Body has done is simply to kind of fulfill its role as an adjudicator. They’ve identified and kind of helped develop a comprehensive and coherent theory of WTO law and that’s simply what judges do when they are independent, impartial, adjudicators tasked with coming up with a coherent theory of how a complex body of law fits together.

We’ve also of course, been critical of the claim that the WTO should necessarily be giving reigning in State-led capitalism because our pluralist account suggests that states can have all manner of domestic economic arrangements, so long as they don’t run afoul of the kind of specific economic harms identified in the WTO’s covered agreements. There’s nothing in principle wrong with various types of domestic political economy.

Since its inception, the WTO has been equipped with a two-instance dispute settlement system to resolve conflicts between member states over compliance with WTO law. The dispute settlement system was once considered the “Crown Jewel” of the WTO. It allowed member states to present their case to a panel of independent experts. If the decision of the panel was unsatisfactory for either disputing party, the case could be appealed to the Appellate Body for a final decision. When a member state was found to violate WTO rules, such as the Most Favoured Nation (MFN) clause, the dispute settlement process required the violating state to bring its domestic measure into compliance with WTO law.

As Professor Joanna Langille explains, the Appellate Body is no longer functioning, due to the US’s refusal to appoint or replace its judges. The outcome is that states in violation of WTO law can appeal their case into a legal void and thereby delay indefinitely a decision over compliance with WTO law. In other words, the dispute settlement system ceases to operate effectively because the system is paralyzed.

Learn more about the WTO dispute settlement impasse in the Rethink WTO Dispute Settlement Report which encapsulates the key insights from the 2023 Ottawa conference. The conference, spanning three themes—formal WTO adjudication, deliberative mechanisms, and alternative dispute resolution—provided a comprehensive exploration of the challenges. The report delves into the myriad root causes underlying the WTO’s dispute settlement breakdown, stemming from broader institutional difficulties and procedural inefficiencies. Proposed and plausible solutions, ranging from alternative dispute settlement methods like the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) to adjustments in the standard of review for disputes, as well as enhancing the feedback loop between member states and adjudicators, are also discussed. 

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