WTO dispute settlement: the politics of procedure in Appellate Body rulings

Abstract

This paper investigates how the Appellate Body has coped with its precarious position in the WTO. It must rely on decentralized enforcement of its rulings; interpret new regulatory rules that are complex and contested; hear and resolve all disputes; and deal with governments litigating issues on which they fail to achieve consensus in negotiations. In this setting, the Appellate Body cannot easily promote both its reputation for coherence and its record of compliance – the dual underpinnings of its perceived authority. In response, it has crafted an activist and politically sophisticated approach to several procedural issues. Despite underlying disagreements among member states, the Appellate Body has seized chances to enact procedural reforms that encourage consensus rulings, improve its access to information, and expand its judicial discretion. While no guarantee of success, these procedures should enhance the Appellate Body's ability to reduce the intrinsic political risks of WTO adjudication.