The EJIL Foreword

• Howse, Robert

Abstract

This article presents a narrative about the building of an effective, legitimate judicial system in the World Trade Organization (WTO) through a period of intense diplomatic and political divisiveness and prevailing perception of impasse and malaise in the Organization. At the centre of the narrative is the Appellate Body of the WTO, a standing body of seven jurists charged with deciding appeals of law. The Appellate Body, as will be elaborated, responded to the political conflict and paralysis at the WTO by distancing itself from the Organization and making a number of crucial jurisprudential moves that led to its transformation into an independent court, which has often decided controversial questions in balanced or deferential ways that display, at best, neutrality to the neo-liberal ‘deep integration’ trade agenda reflected in the Uruguay Round of multilateral trade negotiations and many of its results, such as the WTO Agreements on Intellectual Property and on Technical Barriers to Trade, for example. In the early years, the Appellate Body’s deviation from some of the basic tenets of the trade insiders at the WTO led to an open conflict with the trade policy elite, including the delegates of the Members who sit as diplomatic representatives of the membership in Geneva. The end result, however, was the acceptance of the Appellate Body’s authority. The same consensus practice of political and diplomatic decision making at the WTO that made negotiating breakthroughs elusive also made it essentially impossible for the Members to threaten or pressure the Appellate Body effectively since, ultimately, overruling any of its decisions, either through the amendment of a WTO treaty or through an ‘authoritative interpretation’, could not be done absent a consensus of the Members.