Procedural rules in WTO dispute settlement in the face of the crisis of the Appellate Body

In the last years, serious criticisms have paved the way for a profound crisis of the dispute settlement system of the World Trade Organization (WTO). Indeed, the US has been challenging the legitimacy of the Appellate Body case law against the letter and the spirit of the Dispute Settlement Understanding (DSU), at the risk of paralyzing the adjudicatory mechanism. In response, other Members are advancing a variety of reform proposals in order to avoid the stalemate of a system that was described as a ‘jewel of the crown’. The contribution delves into the procedures of WTO dispute settlement against the background of this crisis. The analysis will be articulated along three issues. Paragraph 2 introduces some preliminary considerations as to the nature of the system, looking into the negotiating history of the DSU. The sources of procedural rules are explored in Paragraph 3, also in order to ascertain whether they have served the purpose of bestowing a clear jurisdictional character to dispute settlement under the WTO. Paragraph 4 addresses some of the challenges currently raised by the US and the responses offered to them, with a particular focus on their procedural implications. The overall purpose is to assess whether or not the current crisis demonstrates a desire by the Members to return to the past, ie, to the ethos that had driven the Uruguay Round. Some recapitulatory remarks are offered in Paragraph 5. The contribution was presented at the conference on ‘Procedural Rules of International Courts and Tribunals: Between Change and Stability’ (Rome, 3 May 2019), organized by the Interest Group of the Italian Society of International Law on the Law of International Adjudication