WTO Jurisprudence and its Critiques: The Appellate Body's Anti-Constitutional Resistance

Abstract

In a time of financial crisis and rising demand for economic protectionism, the World Trade Organization, promoting free trade and economic growth, has never been more important. Enforcement of the WTO’s provisions has grown increasingly contentious and high-stakes, and the Appellate Body empowered to rule on violations of the treaty has received harsh criticism. Three elements of WTO jurisprudence, in particular, stand out. First, the court’s excessive use of narrow textualist argument tends to lead to short-sighted decisions that give little guidance to member states. Second, the court’s decisions have increasingly interfered with sensitive democratic processes in sovereign countries. Third, the opinions handed down by the court have led countries to adopt trade-restrictive, rather than trade-liberalizing, measures. These criticisms of WTO jurisprudence present serious challenges to the very raison d’être of the WTO. This jurisprudence cannot be explained without reference to the AB’s history as an institution awkwardly positioned somewhere between the realm of diplomacy and law. This Article will argue that the WTO’s jurisprudence can be usefully understood as a kind of resistance to constitutionalization in international trade law. The narrow textualism of the AB was intended to reduce the amount of contestation and politics at the WTO, but, paradoxically, the AB’s resistance to constitutionalization has actually created the very controversy and division that it seeks to avoid.