Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO

forthcoming in Legal Issues of Economic Integration, Volume 48, Issue 1 (2021)

Amsterdam Law School Research Paper No. 2021-05

Amsterdam Center for International Law No. 2021-02

27 Pages Posted: 1 Feb 2021 Last revised: 10 Mar 2021

Date Written: January 29, 2021

Abstract

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This paper investigates the origins and character of this feature of the WTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to ensure the future operation of the organization. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO – a fire alarm that Members can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, the one that is likely to be both politically feasible in the short term and free from doubt regarding its legal effects is a decision, made by consensus by the Membership, to clarify the relationship between the general decision-making authority of the Ministerial Conference and the provisions governing the appointment of Appellate Body members.

Keywords: World Trade Organization, Appellate Body, International Dispute Settlement, Institutional Design, Dispute Settlement Body, International Courts and Tribunals

JEL Classification: K33

Suggested Citation

Vidigal, Geraldo, Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO (January 29, 2021). forthcoming in Legal Issues of Economic Integration, Volume 48, Issue 1 (2021), Amsterdam Law School Research Paper No. 2021-05, Amsterdam Center for International Law No. 2021-02, Available at SSRN: https://ssrn.com/abstract=3775605 or http://dx.doi.org/10.2139/ssrn.3775605

Geraldo Vidigal (Contact Author)

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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