The Appellate Body, the WTO Dispute Settlement System, and the Politics of Multilateralism
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Description
The end of the Cold War gave rise to renewed optimism about the capacity of multilateral institutions to respond to global political, economic, and social challenges. Within a decade, however, the East/West divide would be replaced by other conflicts, schisms, and complexities—the debate over globalization, the related development challenge, global terrorism and nuclear non-proliferation, and the rise of China as a regional and perhaps global superpower. The politics of multilateralism appear as difficult and fragile as ever—whether the ‘climate change’ negotiations (Kyoto) or the role of the UN Security Council in policing the use of force. Recently, expert commissions have issued reports on reform of two crucial multilateral for a—the United Nations and the World Trade Organization (WTO), a sign of recognition that multilateral institutions must change to respond to new challenges. In the case of the WTO, the challenges have been dramatized by the collapse into acrimony of two ministerial meetings within a five-year period: Seattle in 1999 and Cancun in 2003. Both meetings were to be crucial in advancing a new round of multilateral trade negotiations. While the Doha Round negotiations sputter along despite the failure at Cancun, many of the WTO's members are lowering trade barriers through bilateral and regional trade pacts, lending further uncertainty to the continued relevance and viability of multilateralism. But there is another side to this story. For during this very period of tumult in the political councils of the WTO, its legal institutions have played a major role in managing international economic conflict, preventing trade disputes from escalating out of control, and enhancing the legitimacy of the organization. The WTO possesses what no other international regime has been able to achieve, and what no regional trade agreement can apparently duplicate with success: a set of largely universal ground rules for trade and economic relations with a central judicial authority that can interpret these rules in a consistent and impartial manner over time. In a time of political disagreement, when much of the attention of political leaders has been on solving other problems, the dispute settlement system, the Appellate Body above all, has come into the spotlight. The ability of the Appellate Body to resolve conflicts in sensitive areas (such as trade and the environment, as well as the special and differential treatment of developing countries) has been viewed by some as judicial activism, particularly when judged against political and diplomatic stasis. But what may be labelled as ‘activism’ could be more aptly called ‘effectiveness’. While the balance between political and judicial institutions in the WTO has been debated and questioned, a genius of the existing system was the creation of judicial institutions that could be effective even where political change was difficult.
Source Publication
The WTO at Ten: The Contribution of the Dispute Settlement System
Source Editors/Authors
Giorgio Sacerdoti, Alan Yanovich, Jan Bohanes
Publication Date
2006
Recommended Citation
Howse, Robert L. and Esserman, Susan, "The Appellate Body, the WTO Dispute Settlement System, and the Politics of Multilateralism" (2006). Faculty Chapters. 867.
https://gretchen.law.nyu.edu/fac-chapt/867
