The Increasing Recognition of Problems with WTO Appellate Decisions-Making; Will the Message Be Heard?
Washington, DC (PRWEB) November 20, 2013 -- For the sake of the multilateral trading system, the Appellate Body of the World Trade Organization should heed increasingly widespread high-level criticism that its decisions are often activist and is having the unintended consequence of encouraging WTO member nations to litigate instead of addressing issues through negotiations, the historical model of the GATT and the clearly intended model for the WTO at its creation.
That is the key observation made by international trade attorney Terry Stewart in an article in the November 2013 edition of Global Trade and Customs Journal entitled "The Increasing Recognition of Problems with WTO Appellate Decisions-Making; Will the Message Be Heard?" Stewart is managing partner of the Washington, DC-based international trade law firm of Stewart and Stewart.
"The Appellate Body's decision-making, which has recently been criticized as activist by former international trade negotiators, former GATT/WTO personnel and even a current Appellate Body Member, runs contrary to the WTO's (and its predecessor, the GATT) historical role as first and foremost a negotiating forum among sovereigns on trade liberalization and trade rules," Stewart said. "In such an environment, it is increasingly difficult to get Members to negotiate the future needs of the system and threatens basic democratic principles in many of the WTO members by transferring authority for creating binding rules from elected governments to WTO Appellate Body members."
The latest critiques are in addition to the recurring comments of various WTO members, from both developed and developing countries, and other informed observers regarding the Appellate Body's perceived activism.
"Hopefully the latest critiques and comments will prompt Appellate Body members to realize their decisions have overreached to the detriment of all members," Stewart wrote. "At this point, with the WTO legislative processes stalled, there is no other alternative to maintain the relevance of the WTO as something other than a dispute forum for historic rules."
Activism may chill the ability and willingness of members to reach new agreements out of concern that any agreement will provide the opportunity for the Appellate Body to find member obligations that were never agreed to, Stewart said.
These concerns are already becoming a reality at the WTO.
"The current Doha Round negotiations are largely moribund (although talks for a mini-package for Bali may provide a brief ray of hope), and Appellate Body decisions have already led many governments to decide to forego negotiating issues that historically would have been subject to negotiation in the hope that they can get through dispute settlement that which they have not achieved through negotiations," Stewart said.
A more restrained approach by the Appellate Body would include revisiting the position adopted by the Appellate Body that it is its duty to fill gaps in existing agreements and instead adhere to the letter of Articles 3.2 and 19.2 Dispute Settlement Understanding by not creating rights or obligations not contained from the text of the agreements among sovereigns, Stewart suggests in the 23-page article.
Stewart's article, co-authored by Stewart lawyers Patrick J. McDonough and Jennifer M. Smith and law clerk Sandra Jorgensen, includes reviews of past and recent problems with the WTO dispute settlement system, the institutional influences on the Appellate Body, and discussion of personal assessments of prior decision-making by members of the Appellate Body.
About Stewart and Stewart
For 50 years, the firm of Stewart and Stewart has helped companies, workers, and governments succeed amid the complexities and rapid change of international trade. Stewart and Stewart are proud of their tradition of integrity, expertise, and creative approach to the law in such areas as trade remedies, customs, and international trade agreements. Today, more than ever, globalization is creating spectacular new opportunities and posing daunting new challenges for U.S. farmers, manufacturers and service companies. Stewart and Stewart enters its next half century blessed with a talented and tested team to assist clients in competing at home and around the world so they can create the jobs and innovations of tomorrow, survive potential challenges or crises and overcome obstacles and distortions in the marketplace.
Stewart and Stewart is a member of the International Society of Primerus Law Firms.
Derek N. Hoeft, International Society of Primerus Law Firms, http://www.primerus.com, +1 616.284.3631, [email protected]
Share this article