The Appellate Body's Power to Interpret the WTO Agreements and WTO Members' Power to Disagree with the Appellate Body

Research output: Contribution to journalArticle

Abstract

The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.

Original languageEnglish
Pages (from-to)792-819
Number of pages28
JournalJournal of World Investment and Trade
Volume20
Issue number6
DOIs
Publication statusPublished - 2020

Keywords

  • Appellate Body
  • authoritative interpretation
  • Guide to Practice on Reservations to Treaties
  • interpretative declaration
  • overreach
  • precedent
  • subsequent agreement and subsequent practice
  • Vienna Convention on the Law of Treaties

ASJC Scopus subject areas

  • Business and International Management
  • Political Science and International Relations
  • Economics, Econometrics and Finance(all)
  • Law

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