The king is dead, long live the …: Evaluating Alternatives to the WTO Appellate Body Within and Outside the WTO Regime
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The king is dead, long live the …: Evaluating Alternatives to the WTO Appellate Body Within and Outside the WTO Regime
German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 541–579
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Isabel M. Kaiser, Cand. jur., student research assistant at the Chair of Public International Law at the Georg-August-University Göttingen and former Editor-in-Chief of the Goettingen Journal of International Law.
Abstract
Since December 2019, the kingdom of world trade law has fallen into an interregnum. The king that used to be the Appellate Body of the World Trade Organization, was dethroned at the hands of the then incumbent US government, which refused to duly appoint new members to fill its vacancies. Staunch royalists have since been looking for ways to salvage the dispute settlement mechanism, once revered as the ‘crown jewels’, as well as for a deserving heir apparent. While there seems no path to structural reform of the Appellate Body, a wide range of alternatives presents itself to WTO members. This article provides a systematic overview of such alternatives both within and outside the WTO regime, sampling some that are already available and others currently subject to lively debate. The alternatives on sample are (cross)?evaluated against a benchmark that sources the key characteristics of the WTO dispute settlement mechanism. On that basis, the article finds the most promising alternatives in the concert of panels of Preferential Trade Agreements and the most recent Multi-Party Interim Appeal Arbitration Arrangement.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Isabel M. Kaiser\nThe king is dead, long live the …: Evaluating Alternatives to the WTO Appellate Body Within and Outside the WTO Regime | 541 | ||
| I. Introduction: The Interregnum in World Trade Dispute Settlement | 541 | ||
| II. The Appellate Body Crisis: A Palace Revolution | 544 | ||
| A. ‘Deadlock of the AB’: Cause and Effect in a Nutshell | 545 | ||
| B. The U.S. Objections: Motives and Thrust of the Conspirator | 546 | ||
| C. Evaluation Benchmark: Workability and Desirability | 547 | ||
| III. Alternatives Within the WTO: Continuing the Dynasty? | 541 | ||
| A. Abandoning the AB: Panels in Power | 541 | ||
| 1. No-Appeal-Pact | 541 | ||
| 2. Automatic Adoption of Panel Reports | 541 | ||
| 3. ‘Floating’ Panel Reports | 541 | ||
| 4. ‘Back to GATT’: Diplomacy Past the Panel Report | 541 | ||
| B. Complementing the AB: Appellate Body for Trade Remedies | 541 | ||
| C. Substituting the AB: Appeal Arbitration | 541 | ||
| 1. Bilateral Appeal Arbitration in General | 541 | ||
| 2. Multi-Party Interim Appeal Arbitration Arrangement | 541 | ||
| D. Interim Evaluation: Burgfrieden | 541 | ||
| IV. Alternatives Outside the WTO: Founding a New Dynasty? | 542 | ||
| A. DSM ‘Minus the US’: An (Imperfect) Clone | 542 | ||
| B. Preferential Trade Agreements: Devolution to Principalities | 542 | ||
| 1. Unites States-Mexico-Canada Agreement | 542 | ||
| 2. Comprehensive and Progressive Agreement for Trans-Pacific Partnership | 542 | ||
| 3. Belt and Road Initiative | 542 | ||
| 4. Partial Interim Evaluation: PTAs as an Alternative | 542 | ||
| C. The Courts of The Hague: Submission to Older Dynasties | 542 | ||
| 1. Ad Hoc Inter-State Arbitration | 542 | ||
| 2. International Court of Justice | 543 | ||
| D. Interim Evaluation: A ‘Rival Ally’ | 543 | ||
| V. Conclusion and Outlook: Long (Enough) Live the King! | 543 |