Legitimacy Crisis at the World Trade Organisation Appellate Body: Other Ways Than the MPIA?

Abstract

The World Trade Organisation (WTO) is the foremost international organisation regulating the conduct of international trade law. It provides political and legal mechanisms through which Member-States’ rights and obligations regarding international trade law are negotiated, agreed upon, clarified, and enforced. As the primary means through which these rights and obligations are clarified and preserved, and as the last avenue of appeal in the WTO’s dispute settlement system, the Appellate Body is the ‘crown jewel’ of that system. However, the crown jewel has been ‘stolen’, and the Appellate Body hamstrung by the United States’ refusal to approve the appointment of Appellate Body members and satisfy its quorum—causing an ‘Appellate Body crisis’.

This chapter contributes to the debate on resolving this crisis by analysing just one of the possible solutions—the Multiparty Interim Appeal Arbitration Arrangement (MPIA), an alternative appeal arrangement under Article 25 of the Dispute Settlement Understanding (DSU). The chapter argues that the crisis currently facing the Appellate Body is one of legitimacy, and the MPIA is not the correct forum for addressing questions about the identity of the WTO. For that reason, this chapter asserts that the MPIA is not a permanent solution to the Appellate Body crisis and explains why that is the case. Furthermore, it explains that—although not a solution—the MPIA offers important lessons which should be considered during any future reforms seeking to address the legitimacy crisis.

This argument is conducted in four parts. Section 2 provides background and context to the legitimacy crisis—it explains the Appellate Body’s role and importance within the WTO, how the current crisis arose, and how this impacts the Appellate Body’s function. Section 3 outlines the theoretical framework upon which this chapter relies. Section 4 then uses a mix of interpretive techniques and contextual analysis to analyse the MPIA, make predictions as to its likely implementation, and assesses the MPIA’s effectiveness at addressing the criticisms of the Appellate Body that spurred the current crisis. Finally, Sect. 5 explores the chapter’s conclusion that, while the MPIA is not a permanent solution to the crisis, it provides guidance as how best to pursue reform(s) going forward. Show more