A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations

18 Pages Posted: 4 Dec 2018 Last revised: 14 Dec 2018

See all articles by Gregory Shaffer

Gregory Shaffer

Georgetown University Law Center

Date Written: November 28, 2018


It is the end of an era—potentially the close of a semblance of the rule of law in international trade relations. This article assesses the U.S. challenge to the Appellate Body and binding dispute settlement system of the World Trade Organization. Part I examines the decline of law and return of power in international trade relations. Part II explains the rationales behind the U.S. challenge to the WTO judiciary in terms of domestic politics, the rise of China, and concerns over a fundamental imbalance between WTO political and judicial processes. Part III analyzes the potential and most likely future of WTO dispute settlement—either (1) the replacement of the Appellate Body with member agreement to binding dispute settlement, potentially with ad hoc appeals, on only a reciprocity basis, thus potentially excluding the United States; or (2) reversion to the former GATT system where parties can effectively veto the adoption of a panel report. For over two decades, the Appellate Body operated as an authoritative, quasi-constitutional, international court to resolve conflicts and develop jurisprudence. In retrospect, it was a remarkable experiment in international relations. The United States and the world may soon regret its demise.

Keywords: WTO Appellate Body, balance of international judicial and political process, law and power

Suggested Citation

Shaffer, Gregory, A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations (November 28, 2018). Yale Journal of International Law, 2018, Forthcoming, UC Irvine School of Law Research Paper No. 2018-64, Available at SSRN: https://ssrn.com/abstract=3292361

Gregory Shaffer (Contact Author)

Georgetown University Law Center ( email )

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics