The gang that couldn't shoot straight: The not so magnificent seven of the WTO appellate body

Abstract

The World Trade Organization's (WTO) Appellate Body has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. In his EJIL Foreword article, Robert Howse has attempted a very lucid taxonomy of the case law, using the standard of review as a benchmark for it. His conclusion is that the Appellate Body is quite cautious when facing non-discriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive standard (into national sovereignty) when dealing with trade measures (like anti-dumping), which are by definition discriminatory since they concern imports only. In my response, I share his basic conclusion and add that this is not the outcome of a process that mandates this standard of review but, simply, a political reaction aimed at placating the WTO membership.