The appellate body’s judicial pathway : precedent, resistance and adaptation

Abstract

This chapter looks at twenty years of practice of the global trade regime to illustrate the limits of change in international law. It is noted that, despite a strong norm to follow prior rulings, the World Trade Organization’s Appellate Body modified precedent regularly—especially in the face of past non-compliance. This finding has at least two implications for the framework proposed by Krisch and Yildiz. On the one hand, judicial change is limited by the receptors of legal change. These receptors (here, respondent governments) might express dissatisfaction by failing to comply, rendering courts’ decisions and proposed changes ineffective. On the other hand, adjudicators must also be strategic with respect to the changes enabled by their decisions. Importantly, the judicial pathway is conditioned by the ability of their decisions to result in compliance. A judiciary that prioritizes change over authority might see a backlash that renders them ineffective.