‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body
(2019) 53(6) Journal of World Trade 951-978
21 Pages Posted: 12 Jul 2019 Last revised: 30 Mar 2020
Date Written: July 7, 2019
Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.
Keywords: WTO, WTO Appellate Body, Appellate Body, judicial overreach, trade remedy, TBT, US
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