Deliberative Engagement within the World Trade Organization: A Functional Substitute for Authoritative Interpretations
iCourts Online Working Paper Series, No. 9
32 Pages Posted: 24 Sep 2014 Last revised: 2 Sep 2015
Date Written: September 2014
Similar to mechanisms of legislative response in the domestic context, Article IX:2 of the Agreement Establishing the WTO grants Members the exclusive right to adopt "authoritative interpretations." However, the practice of consensus decision-making within the WTO has led to the non-use of authoritative interpretations. As a result, the Appellate Body effectively enjoys interpretive autonomy but is also deprived of constructive normative guidance. In this article, we propose a functional substitute for authoritative interpretations, namely an increase in Members’ use of expression of views prior to report adoption within the Dispute Settlement Body. In light of the Dispute Settlement Mechanism’s responsibility of deliberative engagement with Members, we argue that it should be able to consider the interpretive preferences of a representative sample of the WTO Membership. We specify how our proposal would work in practice and address potential limitations and obstacles to its implementation.
Suggested Citation: Suggested Citation