The Appellate Body of the World Trade Organization: perspectives of development

The article discusses developments in respect of the Appellate Body of the World Trade Organization (WTO) during the last two years. Contrary to the position of the majority of WTO Members, one Member is blocking the appointment of new Appellate Body members; this is possible because of the WTO rules on appointment and reappointment of Appellate Body members – i.e. on the basis of consensus. Meanwhile, the terms of a considerable part of Appellate Body members have already expired or will expire soon. This causes the threat that the number of vacancies could increase and the number of active members decrease, reaching a critical level, at which point the Appellate Body would no longer be able to perform its functions according to WTO rules. If this problem is not resolved, a situation where appeals may not be possible could arise as soon as next year. The article illustrates that in such a case the whole WTO dispute settlement system would be destabilized. The author discusses possible solutions that would allow the preservation of the WTO appellate review stage, in particular, thanks to which the WTO Dispute Settlement system has got wide recognition. The proposed solutions are both within the WTO Dispute Settlement Understanding and outside the WTO system. For example, the article addresses the possibility of the application of Art.25 of the Dispute Settlement Understanding, containing provisions on arbitration, in such a manner that it could perform the functions of the Appellate Body. Another proposed solution is to conclude a multilateral treaty that would cover only the issue of appellate review and preferably contain the rules on appellate review that are in force in the WTO system.

About the author: Marina Trunk-Fedorova – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Saint Petersburg State University, Visiting Associate Professor, Urals State Law University, Saint Petersburg, Russia.

Citation: Trunk-Fedorova M. (2018) Apellyatsionnyy organ Vsemirnoy torgovoy organizatsii: perspektivy razvitiya [The Appellate Body of the World Trade Organization: perspectives of development]. Mezhdunarodnoe pravosudie, no.1, pp.112–121.

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