Judicial Activism and the Future of the World Trade Organization's Appellate Body

During the Uruguay Round of negotiations that led to the creation of the World Trade Organization (WTO), the United States advocated and supported the creation of the Appellate Body and a formalized dispute settlement mechanism. In the following years, the United States changed its position and became increasingly critical of the seven member standing Appellate Body. Although other WTO members shared some of the same concerns, it was the United States that blocked the appointments and reappointments of the Appellate Body members until it became impossible for the Appeals mechanism to function. The United States is of the view that the Appellate Body has exceeded its authority by engaging in “judicial activism.” This doctoral dissertation looks carefully at the criticism of the United States particularly (although not exclusively) in a series of anti-dumping cases addressing the U.S. use of zeroing methodology. It discusses the unique U.S. vision on the standard of review that has its origins in its domestic administrative law and doctrine of judicial deference. Although the zeroing reports are not the only cases where the United States criticizes the Appellate Body, they were a particular flash point for the relationship of the United States with the Appellate Body. The dissertation further examines the U.S. behavior towards the selection of the Appellate Body members in light of the dynamics of domestic politics and the nature of political influences in the appointment process. It concludes that the Appellate Body’s interpretive methodology is aligned with the customary rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties and applied in the jurisprudence of the International Court of Justice. It further concludes that the Appellate Body inherits an inevitable fragility when it conflicts with attributes of sovereignty. The institution is bound to fail on occasions of political interference with its judicial independence. Given that the consensus decision-making is integral to the structure of the Dispute Settlement Understanding (DSU) as a means to constrain the authority of the tribunal at this time any reform of the dispute settlement system will not be a long term or meaningful. Using the anti-fragility concept developed by Nassim Nicholas Taleb, this dissertation asserts that although the Appellate Body may be fragile, the jurisprudence it developed over more than two decades of its existence is “anti-fragile” and will continue to influence a rule based multilateral trading system.