Volume 52 (2018)

Volume 52 (2018) / Issue 6

Robert Mcdougall, 'The Crisis in WTO Dispute Settlement: Fixing Birth Defects to Restore Balance' (2018) 52 Journal of World Trade, Issue 6, pp. 867–896

Abstract

The impasse in the World Trade Organization over the appointment of new members of the Appellate Body is just one symptom of crisis in cooperation on trade. Driven by scepticism about multilateralism and binding dispute settlement, and a growing rivalry with China, the current US administration has elevated longstanding concerns about WTO dispute settlement to new heights. The collective inability of WTO members to exercise their authority to interpret the meaning of WTO commitments has meant that the Appellate Body is not subject to any checks and balances. As other WTO members blocked US efforts to negotiate more member control led nowhere, it turned to unpopular unilateral mechanisms, culminating in the current block on new appointments.

 

Restoring the dispute settlement system and enhancing its legitimacy will now require some changes. This might include improving mechanisms for political oversight, diverting sensitive issues from adjudication, narrowing the scope of adjudication, improving institutional support and providing members more say over certain procedures. Preserving compulsory, binding and impartial dispute settlement in the WTO will require an accommodation of different perspectives on how that system should function. Achieving this, in whatever form, will contribute to maintaining and even strengthening multilateral cooperation on trade.

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ISSN: 1011-6702
ID: TRAD2018038