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Kaiser, I (2020). 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, 63(1), 541-579. https://doi.org/10.3790/gyil.63.1.541
Kaiser, Isabel M. (2020). "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. 63no. 1, 2020 pp. 541-579. https://doi.org/10.3790/gyil.63.1.541
Kaiser, I (2020). 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 (Issue 1), pp 541-579. https://doi.org/10.3790/gyil.63.1.541

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The king is dead, long live the …: Evaluating Alternatives to the WTO Appellate Body Within and Outside the WTO Regime

Kaiser, Isabel M.

German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 541–579

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Author Details

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