The Rule of Precedent and the Role of the Appellate Body

Abstract

The crisis over appointments to the WTO's Appellate Body has been one of the most challenging conflicts the GATT/WTO system has ever seen, threatening to destroy a core institution of the world trading system. The Appellate Body has played a valuable role in dispute settlement, by providing a coherent set of jurisprudence to guide WTO Members as to the meaning of WTO law. The Appellate Body does not create formal "precedent," but nevertheless its reasoning in past cases serves informally to create expectations as to the meaning of the WTO agreements. The United States has objected to the Appellate Body's treatment of past rulings, arguing that the Appellate Body has elevated these rulings to "binding precedent." However, a careful reading of the language used by the Appellate Body to describe its views indicates that the Appellate Body has not done so. The U.S. objections are one part of its series of concerns justifying its blocking of appointments. Losing the Appellate Body over this dispute would be devastating to the WTO, and engagement on these issues must continue in good faith in order to find a resolution. WTO Dispute Settlement, Appellate Body, Panels, Precedent, StareDecisis, Cogent Reasons, Rule of Law, Walker Principles