Dissenting opinions in the WTO appellate body : drivers of their issuance & implications for the institutional jurisprudence

Abstract

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country—whose interests turn out to be closely intertwined—is affected according to the former’s personal preferences. Moreover, a subset of the factors—the so-called “evaluators”—can assess the doctrinal significance of dissents and illuminate how each of them is contributing to the WTO’s case law development.