The Most Dangerous Branch? WTO Appellate Body Jurisprudence on the Nature and Limits of the Judicial Power
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The creation of a judicial power at the World Trade Organization is now widely understood to be among the most fundamental and perhaps fateful innovations of the Uruguay Round of multilateral trade negotiations. Under the GATT, decisions of panels (increasingly) bore some of the marks of adjudication, but they remained, in the end, diplomacy by other means. The decisions were the product of ad hoc panels, mostly staffed by officials or retired officials of national governments, who, to some important extent, were guided in their rulings by an expert staff of international civil servants, the bureaucratic power of the GATT. Moreover, to have legal effect, of course, these rulings needed to be adopted by the membership of the GATT, and the practice was that such adoption must occur by consensus. With the WTO Dispute Settlement Understanding, the role of the panels remained much as it had evolved in GATT practice—but superimposed on that process was a new judicial power, that of the Appellate Body, a standing corpus of expert jurists, operating with a supporting professional staff, but clearly independent of the WTO political organs and the secretariat.) Moreover, reports of panels (to the extent not reversed or modified on appeal) and of the Appellate Body were to be adopted as a legal binding settlement of the dispute, unless a negative consensus existed against adoption (effective automaticity). Thus, with respect to the interpretation of the law in any particular dispute, the last word would now, normally, be that of the Appellate Body, an independent judicial tribunal, operating, however, in a world whose official culture remained dominated by the values of bureaucracy and diplomacy, not those of the law. Even strong proponents of the juridification of the multilateral trading system, such as John Jackson, had never gone so far as to advocate relinquishing altogether political or diplomatic control over the results of dispute settlement. As someone who came to the law after a first career in diplomacy and foreign policy-making, it has been fascinating for me to observe the clash of values that has manifested itself in the reactions of the official WTO culture to the first five years of WTO appellate jurisprudence. It has been equally fascinating to see the minds of practiced jurists on the AB puzzle over, and sometimes be manifestly exacerbated by, the way legal rules have been understood and employed within a bureaucratic and diplomatic culture. One kind of criticism that has been made of the Appellate Body within, or by those close to, official WTO culture is that, in certain cases, the Appellate Body has exceeded its authority, or its grant of power under the DSU. The notion that an adjudicative body has exceeded its authority or jurisdiction finds its place in the international law of arbitration (it is often one of the grounds on which an arbitral award may be challenged by appeal either to a domestic or an international tribunal4) and is present also in the municipal administrative law of some states. In practice, such a notion usually amounts to reconsideration of the substantive legal interpretations of the original adjudicator although it is purportedly a much more deferential standard than review for error of law. At the same time, since a finding of lack of jurisdiction essentially vitiates the bona fides of the original judgment altogether, it can lead to harsh and sometimes unfair consequences. Since, as will be discussed in the first section of the paper below, it is very unclear to whom one could take a complaint about excess of Appellate Body jurisdiction, given that the AB is a tribunal of last resort, one can question whether this notion can have any real legal meaning in the WTO system. From my own perspective as legal academic, given the kind of moral and intellectual ground from which I aspire to engage with the jurisprudence, the notion of excess of authority or jurisdiction is a troubling way of articulating disagreement with legal interpretations of the AB, including interpretations of the judicial function itself, for this idea buys into a highly positivistic, and quite problematic and contestable, view of the relationship between law and legitimacy. Judges have often acted abominably when they have viewed themselves, or justified themselves, in those terms (South Africa under Apartheid and antebellum America are examples explored in recent literature). Conversely, judges have often behaved admirably when they have pushed the formal limits of their authority as established in positive law. Indeed, there is a strong case that judicial review of government action against constitutional norms—a practice that is increasingly accepted as a requirement of liberal democracy—had its origins in a judicial self-assumption of power or authority with a weak foundation in pre-existing positive law. And it is far too simplistic to claim that, with its insistence on fidelity to the treaty texts, the AB has brought on itself criticism on the standards of narrow formalism or positivism. For, as I have argued elsewhere, from the very start, the AB balanced its emphasis on taking seriously the ordinary meaning of the exact words of the treaty with an equal emphasis on the interpretation of those words in light of context, object and purpose. In this paper, I argue that, in all of the prominent instances where the AB has been accused of exceeding its authority, it has based itself upon a defensible interpretation of WTO law, consistent with the interpretive rules and principles in the Vienna Convention on the Law of Treaties. However, in making its own legitimate interpretive choices, the AB has necessarily been influenced by a conception of the judicial process, and its place within the WTO system as a whole; the real debate ought to focus on this conception and its interrelationship with the interpretation of WTO law. The cases I consider are: Periodicals, Turtles, Steel (the amicus issue solely), India Balance of Payments, and Turkish Textiles.
Source Publication
The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO
Source Editors/Authors
Thomas Cottier, Petros C. Mavroidis
Publication Date
2003
Recommended Citation
Howse, Robert L., "The Most Dangerous Branch? WTO Appellate Body Jurisprudence on the Nature and Limits of the Judicial Power" (2003). Faculty Chapters. 879.
https://gretchen.law.nyu.edu/fac-chapt/879
