Chronicle of a crisis foretold: how the WTO Appellate Body drove itself into a corner

Jorge Miranda and Manuel Sánchez Miranda

Journal of International Economic Law, 2023, vol. 26, issue 3, 435-461

Abstract: With 146 decisions delivered since 1995, the Appellate Body of the World Trade Organization (WTO) stands as one of the world's most prolific and accomplished international courts. However, the Appellate Body finds itself currently embroiled in a crisis that has crippled it. This article delves into the reasons that may account for this state of affairs. We examine a sample of Appellate Body decisions, that, on the one hand, had significant policy and systemic implications for WTO dispute settlement, but on the other hand, are beset with notable flaws. While it is human to err, and there is no reason why this old adage should not be applicable to international tribunals, by developing an overly dogmatic jurisprudential tradition that has the potential to perpetuate even the most deficient rationale, the Appellate Body invited at least some of the criticism that escalated into political maneuvering that rendered it inoperative. Our aspiration is that this crisis can serve as a source of valuable lessons regarding how to mitigate the risks that international adjudicators must inevitably bear when interpreting international treaties. In an effort to trigger a scholarly discussion on how to make the work of the Appellate Body more sustainable, we outline a possible blueprint to resolve the current deadlock.

Date: 2023
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