Challenges of Dispute Settlement, WTO & Regional Mechanisms
The WTO’s Appellate Body, known as its “crown jewel,” recently became inoperative due to its ongoing vacancies after the U.S. administration refused to appoint new members. In June 2020, AUWCL invited three panelists to debate whether this appellate mechanism is really needed and whether it is worth the effort of saving.
Ambassador Alejandro Jara, who had served in various capacities at the WTO and its dispute settlement system, argues that the Appellate Body helped improve the WTO system and gave it legitimacy since governments were able to review panel rulings from a legal perspective. However, the WTO is in its current position due to the mismatch of expectations of governments and the outcomes of the Appellate Body and panels. Alejandro believes this mismatch led to the break of trust between members and the Dispute Settlement system panels, including the Appellate Body. He explained that there was a political responsibility for the secretariat to have more dialogue with governments, and he emphasized the need for reform of the system.
Jennifer Hillman, a former member of the WTO Appellate Body, explained that at the time the WTO agreements were up for consideration, there were already concerns that the rules-based system may yield too much power and that members of U.S. Congress were concerned that the Dispute Settlement system was taking away sovereignty.
Jesse Kreier, former Chief Legal Officer of the Rules Division at the WTO, thought it was exceptional that the U.S. had agreed to the binding dispute system in the first place considering the U.S.’ concerns with ceding authority to international organizations. Padideh Ala’i, a professor of law at WCL who moderated this panel, noted China’s presence in the system and opened discussion about the extent that the U.S.’ diminishing power and China’s rise played a role.