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

See all articles by Cosette D. Creamer

Cosette D. Creamer

University of Minnesota - Twin Cities - Department of Political Science; University of Minnesota - Twin Cities - School of Law; Harvard University - Department of Government; Boston University School of Law

Zuzanna Godzimirska

University of Copenhagen, Faculty of Law, iCourts - Centre of Excellence for International Courts, Students

Date Written: September 2014

Abstract

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

Creamer, Cosette D. and Godzimirska, Zuzanna, Deliberative Engagement within the World Trade Organization: A Functional Substitute for Authoritative Interpretations (September 2014). iCourts Online Working Paper Series, No. 9. Available at SSRN: https://ssrn.com/abstract=2500343 or http://dx.doi.org/10.2139/ssrn.2500343

Cosette D. Creamer (Contact Author)

University of Minnesota - Twin Cities - Department of Political Science ( email )

1414 Social Sciences
267 19th Avenue South
Minneapolis, MN 55455
United States

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Harvard University - Department of Government ( email )

1737 Cambridge St
Cambridge, MA 02138
United States

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Zuzanna Godzimirska

University of Copenhagen, Faculty of Law, iCourts - Centre of Excellence for International Courts, Students ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

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