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Pause for a moment. Assume that, by magic wand, the Trump Administration changes its attitude, and agrees to new appointments to the Appellate Body (AB). Have the WTO problems disappeared simply because a complete AB is now in place? Even if matters such as Rule 15 are addressed,1 the distinction between facts and law is clarified and a resolution is found to concerns regarding the AB overstepping of its mandate, we are left with the fact that new trade agreements are being routinely negotiated outside the confines of the WTO, leading enforcement to migrate elsewhere. Is the AB crisis simply a case of missing judges or should it be viewed as symptom of a wider crisis hitting multilateralism, even if the causes for the latter are distinct?

We argue against the commonly held view that the AB crisis would ipso facto be over, if the United States (US) were to change its mind, and move to complete the AB membership. This view ignores both the perceptions of many insiders that the operation of the dispute settlement system needs to be improved, as well as, crucially, the broader challenges confronting cooperation in the WTO. The increasing shift to bilateral, regional and plurilateral forms of cooperation will have an impact on WTO dispute settlement even if the AB were to be reconstituted. The WTO has not managed to add much to its legislative arsenal since its creation. Besides a few sector-specific agreements in the realm on goods and services negotiated in the late 1990s, the only comprehensive agreement it managed to conclude since 1995 is the Agreement on Trade Facilitation. The legislative function of the multilateral trading system is … well, in crisis.


Dispute Resolution and Arbitration | International Trade Law | Law