An Existential Threat to WTO Dispute Settlement: Blocking Appointment of Appellate Body Members by the United States

Abstract

The WTO’s Dispute Settlement Mechanism (DSM) is being emasculated by the United States. For almost a year, the United States had blocked appointment or reappointment of Appellate Body (AB) Members, reducing the number of sitting AB Members to four, based on various procedural and substantive objections to Appellate Body practices, some dating from 2002. Should the United States continue to refuse to join a consensus to appoint AB Members through September 2018, the number of sitting Members will be reduced to three. While most cases could still be heard with three judges, the large backlog of complex cases could mean that AB reports—required under the Dispute Settlement Understanding (DSU) to be issued in no more than 90 days after appeal, will continue to take far longer to complete. It is unclear at this writing what the U.S. objectives may be since they have made no concrete proposals for Appellate Body reform. Increasingly, it appears that the United States seeks to destroy the Appellate Body and with it the rules-based international trading system.

Keywords: World Trade Organization, WTO, appellate body, international trade, dispute settlement mechanism,