Addressing the dispute settlement crisis at the WTO

Abstract

Following a decision by the United States not to approve new appointments to the WTO Appellate Body (AB), as of mid-December 2019 the appeals function of the WTO stopped working because the number of AB members had dropped to one (at least three AB members are needed to consider an appeal of a panel report). The US took this action because it was dissatisfied with the functioning of the WTO appeals process, arguing that the Appellate Body had exceeded its mandate. As a result of the US action, the findings of WTO dispute settlement panels can no longer be appealed. Interim responses to this situation – such as an EU-Canada-Norway initiative to use an ad hoc appellate process if countries agree to this before a WTO dispute resolution panel is formed to consider a case [i] — are not a solution to the demise of the multilateral appeals process, as they will not lead to an internally coherent jurisprudence for all WTO members, the raison d’être of any appellate process.