Chapter 3 Licence to Adjudicate: A Critical Evaluation of the Work of the WTO Appellate Body So Far

In this chapter, I discuss the manner in which the Appellate Body (AB) has been completing the WTO contract through its case law. To do that, I first briefly examine the mandate given to the AB. Having established that, I move to discuss the manner in which the AB has handled its mandate. The AB is called to settle disputes among WTO members by following a certain methodology for interpreting the WTO contract. The main conclusions that I draw are that the AB has not, as a general remark, overstepped its authority and that it has, with few outliers, traditionally followed an (overly) textualist interpretative approach. This attitude is probably consistent with the incentive structure of a risk averse agent who can always turn back and request from its principals to write a more complete contract next time. It has led, nonetheless, to some unfortunate results. Assuming that the current WTO agreement and the interpretative tools are not negotiable (although a re-weighing of the various factors included in the latter is both feasible and warranted), it is the institutional design of the AB and its supporting Secretariat that should probably be re-thought.