Alternative dispute settlement and the jurisprudential legacy of the world trade organization’s appellate body

Abstract

This article analyses the possible impact of the disputes advanced through the Multiparty Interim Appeal Arbitration Arrangement (‘MPIA’) and preferential trade agreements (‘PTAs’) on the jurisprudential legacy of the Appellate Body (‘AB’) and shows that those alternative dispute settlement mechanisms can play a significant role in preserving and further developing World Trade Organization’s (‘WTO’) case law. In the future, the importance of alternative dispute settlement mechanisms resolving arguments of international trade law is bound to increase (especially, in light of the ongoing deadlock at the WTO). That said, this does not come without risks for the (much disputed) coherence of WTO precedence by way of departure from established interpretations of the WTO acquis. Ultimately, it is the quality of the alternative dispute settlement awards that will determine the extent to which the jurisprudential legacy of the AB will be maintained. This article demonstrates that alternative dispute settlement mechanisms pose both challenges and opportunities for the consistency of the WTO case law. This article sheds further light on the potential risks and virtues pertaining to each one of them and argues that until the functioning of the Appellate Body is restored, alternative dispute adjudicating bodies must observe its jurisprudential legacy to promote legal certainty and predictability in international trade dispute settlement.