Appointment and reappointment of the appellate body members: Judiciary or politics

Abstract

This chapter gives a detailed narrative of the WTO Appellate Body member appointment and reappointment processes. It further depicts the increasing politicization of the selection of AB members over the 25 years. As AB gradually established itself as a capable and authoritative adjudicator of sensitive and complex disputes, states kept stepping up their attempts to exert control over ideologies of individual AB members through the appointment process. Political tensions arising from the process mounted up over time. In the selection processes in 2013 and 2016, WTO Members’ veto or threat of veto became frequent and apparent, pushing the processes into near-deadlock while the Selection Committee could still manage to broker the consensus. The United States’ rejection to reappointment in 2016 and its prolonged blockage to the launch of selection processes since 2017, however, mark a new peak of the politicization progress. The author, in pessimism, claims that the politicization of the AB selection processes would not stop or be reversed even if the present impasse is solved. The escalating demand for AB seats will lead to more reckless and unscrupulous strategy-thinking from WTO Members, in particular when some have demonstrated fragile the mechanism could be.