The Lack of Dissent in WTO Dispute Settlement

Abstract

This article analyses in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. Only a handful of articles have noted this phenomenon, even in passing. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than 5 percent of panel reports and 2 percent of Appellate Body reports contain separate opinions of any kind. Second, it shows that the WTO is in fact actively discouraging dissents and discusses why this might be the case. The article argues that dissents are valuable in general and assesses whether more dissents would be a positive for the WTO. It then reviews the few dissents that have been published and demonstrates that 50 percent of the arguments raised in dissents at the panel level were adopted in whole or in part on appeal by the Appellate Body, thus illustrating dissents can and do make a difference. The article concludes that keeping the lid on dissents may ultimately erode the strength of the dispute settlement system and hinder the ability of the WTO Members to make appropriate changes to the covered agreements.

Keywords: WTO, Appellate Body, dispute settlement panel, Dispute Settlement Understanding, dissent

JEL Classification: F02, F10