Abstract
The Appellate Body of the World Trade Organization (WTO), once dubbed the "crown jewel" of the multilateral trading system, is now at a standstill since it went without two members needed for appeals to be heard following the expiration of their terms on Dec. 11, 2019. The paralysis was less a coincidence than the result of a concerted American campaign against the tribunal that relied on objections to the practice of the 'overstaying members' under Rule 15, the perceived 'overreach' in Article 17(6) of the Dispute Settlement Understanding, and persistent failure to abide by the ninety day decision rule. This paper will review the historical evolution of dispute settlement under the GATT, from the diplomatic veto of that era to the innovation of the negative consensus of the DSU, and then discuss the impact of the Appellate Body Blockage has had on the system: appeals "into the void," the loss of binding rulings and the structural imbalance between the powerful economies and smaller trading partners. A special focus is placed on the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), a non-universal, voluntary, and now thirty-four-members strong EU-Colombia frozen chicken cuts ruling, which illustrates an example of a well-functioning appellate mechanism. The paper also evaluates the uneven burden developing countries have suffered as they have traditionally depended on binding adjudication as a counterweight to geopolitical leverage. Based on the Ministerial Conferences promises made at MC12/MC13 and scholarly recommendations for reform, the paper suggests that no single solution – be it DSU amendment, MPIA consolidation or building capacity among developing countries – will do the job of rebuilding systemic confidence. Rather, there is a need for a three-pronged strategy consisting of specific procedural changes, multilateralization of appellate mechanisms and renewed political will in the main economies. The paper concludes that the Appellate Body crisis is in fact a stress test of multilateralism itself, to see if powerful states will adhere to rules-based binding adjudication of sovereign trade behaviour, instead of simple economic leverage.
Keywords: World Trade Organization, Appellate Body, Dispute Settlement, International Trade Law, MPIA, Institutional Reform