Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis

20 Journal of World Investment & Trade (2019) 862-890

Amsterdam Law School Research Paper No. 2019-53

Amsterdam Center for International Law No. 2019-28

30 Pages Posted: 23 Dec 2019

Date Written: December 5, 2019

Abstract

The World Trade Organization is in crisis. Once the Appellate Body has fewer than three members in office, it will become non-operational, compromising the WTO’s compulsory and binding dispute settlement system. Attempts to overcome the opposition of the United States to Appellate Body appointments through majority rule appear legally fragile and politically unwarranted, while purely ad hoc bilateral solutions fall short of reproducing the security provided by compulsory and binding dispute settlement. This article explores and discusses bilateral and ‘plurilateral’ agreements that willing Members may sign to re-establish compulsory dispute resolution, arguing that the one that best fits the letter and spirit of the Dispute Settlement Understanding is an ex ante agreement to establish an ‘appeal Arbitrator’ in case of a non-operational Appellate Body. If appropriately designed, such an agreement not only allows willing Members to restore a high degree of security and predictability in their mutual trade relations but also increases the incentives for multilateral negotiations leading to a permanent resolution of the crisis.

Keywords: Appellate Body, appointments, arbitration, crisis, dispute settlement, World Trade Organization

JEL Classification: K33

Suggested Citation

Vidigal, Geraldo, Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis (December 5, 2019). 20 Journal of World Investment & Trade (2019) 862-890; Amsterdam Law School Research Paper No. 2019-53; Amsterdam Center for International Law No. 2019-28. Available at SSRN: https://ssrn.com/abstract=3499079

Geraldo Vidigal (Contact Author)

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
122
Abstract Views
498
rank
248,815
PlumX Metrics