Why the WTO adjudicatory crisis will not be easily solved: Defining and responding to “judicial activism”

Abstract

The World Trade Organization (WTO) adjudicatory crisis, namely, the specific blockage over the approval of candidates to fill vacancies on the Appellate Body, and general impasse over changes to the Agreement on Rules and Procedures Governing the Settlement of Disputes (DSU), will not be resolved easily or quickly. There is a mismatch between the (1) proposals to reform Appellate Body and DSU reform proposals, and (2) central criticisms the United States raises. America arguments are about the right way to interpret disputed texts in a trade treaty, and about the right weight to give prior decisional rulings. None of the reform proposals raised by the European Union (EU) or Canada, squarely address America’s arguments. The Euro-Canadian suggestions are about procedures, whereas America challenges foundations of multilateral trade adjudication.