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Home Articles posted by Tommaso Soave

Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

Published on January 13, 2020        Author: 

 

Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its functions.

As is well known, this paralysis was triggered by the United States (US)’ consistent veto on the appointment of new appellate judges, justified on grounds of the court’s ‘overreach’, its undue reliance on ‘precedent’, and its alleged disregard for the rules set forth under the Dispute Settlement Understanding (DSU). In November 2019, the US doubled down by threatening to freeze the WTO’s 2020 budget absent draconian cuts to the AB’s funding. Predictably, this prompted the vehement reaction of numerous other Members, which accused the US of holding the WTO appellate system hostage of its own concerns.

Much has been written about this institutional crisis. Yet, the notion of ‘crisis’ deserves some further… critical examination. The very utterance of the word is seldom value-neutral, but rather reflects the perceptions, the preoccupations, and sometimes the agenda of the utterer. If it is indeed true that the World Trade Court is at a critical juncture, then it bears asking: critical for whom? Who are the actors involved in the struggle? How do they articulate their claims and pursue their strategies? To what ends? And who stands to gain and who to lose from the present impasse?

The WTO as a conflictive socio-professional field

Scholars tend to appraise the ongoing conflict in either of two ways. Some consider it as a normative disagreement over the appropriate boundaries of WTO adjudication vis-à-vis the regulatory authority of Members. This narrative typically focuses on the extent of the AB’s implicit powers, the role of past jurisprudence in its legal interpretations, the viability of alternatives to the appellate process, and the like. Others conceive the conflict as part of a struggle for political supremacy against the evolving landscape of international economic relations. This narrative tackles issues like US-China trade wars, the breakdown of multilateralism, the resurgence of sovereigntist economic policies, etc.

To complement these accounts, I suggest that the ongoing struggle surrounding the AB reflects a confrontation between competing socio-professional groups within the WTO legal field. The multilateral trade regime is not only a legal or a political construct. It is also the site of a contest among social actors endowed with unequal professional and technical capital, who compete for supremacy in the system. To prevail in this struggle is to secure one’s authority, impose one’s vision of the law as the dominant paradigm—in one word, to control WTO dispute settlement. Exploring the interplay and power relations among the various socio-professional actors involved in WTO adjudication is, therefore, key to understanding understanding the tensions that currently agitate the field. Read the rest of this entry…