From afterthought to centerpiece: The WTO Appellate Body and its rise to prominence in the world trading system

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Abstract

This paper deals with the Appellate Body of the World Trade Organization and its rise to prominence in the world trading system. The Appellate Body was not conceived by the Uruguay Round negotiators as the centerpiece of the WTO dispute settlement system. It was more an afterthought, linked to the introduction of the quasi-automatic adoption of panel reports under the new dispute settlement system. In little time, however, the Appellate Body grew into the most important and authoritative organ of WTO dispute settlement. The Appellate Body is now, in all but name, the World Trade Court. The significance of its contribution to the development of international trade law is generally recognized. Critics even accused the Appellate Body of having engaged in judicial legislation. This paper does not seek to assess whether the Appellate Body did indeed exceed its judicial mandate. The purpose of this paper is to recall the unassuming origins of the Appellate Body and to discuss the factors that have contributed to its rise to prominence over the last decade. These factors are multiple and often closely related. They include the first and subsequent compositions of the Appellate Body; the Working Procedures for Appellate Review; the early embracement and consistent application of the rules of interpretation of the Vienna Convention; the frequent and broad recourse to appellate review; the manner in which the Appellate Body used its authority of appellate review; and, finally, the case law of the Appellate Body to date, and in particular the case law balancing free trade and other societal values and the case law ensuring the fairness and effectiveness of the WTO dispute settlement system. It is important to identify and correctly appreciate these factors because the Appellate Body will retain its current status and role in the world trading system only to the extent that these factors continue to be sufficiently present.
Original languageEnglish
Place of PublicationMaastricht
PublisherUniversiteit Maastricht
Pages39
Publication statusPublished - 2005

Publication series

SeriesMaastricht Faculty of Law Working Papers
Number1
Volume2005

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