The WTO 20 Years on: ‘Global Governance by Judiciary’ or, Rather, Member-Driven Settlement of (Some) Trade Disputes between (Some) WTO Members?

Forthcoming, European Journal of International Law, Volume 27, Issue 4 (2016)

9 Pages Posted: 5 Nov 2016

See all articles by Joost Pauwelyn

Joost Pauwelyn

Graduate Institute of International and Development Studies (IHEID); Georgetown University Law Centre

Date Written: November 4, 2016

Abstract

In this response to Robert Howse’s EJIL Foreword article, it is argued that Howse overestimates the extent and type of effectiveness and legitimacy achieved by the World Trade Organization’s (WTO) dispute settlement system to date. Moreover, the effectiveness and legitimacy the system has built up has not been achieved by the Appellate Body ‘distancing itself’ from WTO members or the Geneva-based trade policy elite but, rather, because panels and the Appellate Body have, for the most part, skilfully read, reflected and responded to underlying and evolving WTO member country preferences.

The system’s success flows not from Herculian ‘declarations of independence’ by the Appellate Body or ‘open conflict with the trade policy elite’. On the contrary, it is largely explained by the Appellate Body’s ‘judicial minimalism’ (to which Howse refers) and the subtle, informal symbiosis that has emerged between the WTO Secretariat, panels and the Appellate Body, on the one hand, and WTO members and the Geneva-based trade policy elite, on the other.

Keywords: WTO, Appellate Body, international judiciary, global governance

Suggested Citation

Pauwelyn, Joost, The WTO 20 Years on: ‘Global Governance by Judiciary’ or, Rather, Member-Driven Settlement of (Some) Trade Disputes between (Some) WTO Members? (November 4, 2016). Forthcoming, European Journal of International Law, Volume 27, Issue 4 (2016) . Available at SSRN: https://ssrn.com/abstract=2864413

Joost Pauwelyn (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, Geneva CH-1211
Switzerland

HOME PAGE: http://graduateinstitute.ch

Georgetown University Law Centre ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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