Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its functions. As is well known, this paralysis was triggered by the United States (US)’ consistent veto on the appointment of new appellate judges, justified on grounds of the court’s ‘overreach’, its undue reliance on ‘precedent’, and its alleged disregard for the rules set forth under the Dispute Settlement Understanding (DSU). In November 2019, the US doubled down by threatening to freeze the WTO’s 2020 budget absent draconian cuts to the AB’s funding. Predictably, this prompted the vehement reaction of numerous other Members, which accused the US of holding the WTO appellate system hostage of its own concerns. Much has been written about this institutional crisis. Yet, the notion of ‘crisis’ deserves some further……
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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea
As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre. Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the…
An International Investment Advisory Center: Beyond the WTO Model
Establishing an international investment advisory center is now a priority for many states. UNCITRAL Working Group III has put the issue at the top of its agenda for ISDS reform. The European Commission is considering an advisory center for its proposed Multilateral Investment Court. The Netherlands government has commissioned a feasibility study. Thinking about an…
Life Without the WTO – Part II: Looking to the Everyday
Editors' Note: This is the second post of a two part series by EJIL:Talk Contributing Editor Michael Fakhri. Part I can be found here. In this second post I want to provide two examples of how life might look like without the WTO. One could do this in a myriad of ways and my…
Life Without the WTO – Part I: Stop all this Crisis-Talk
Editors’ Note: This is the first part of two posts by EJIL:Talk! Contributing Editor Michael Fakhri. We hear a lot today about the WTO being in crisis. Some people have focused on institutional changes are imagining life without the DSU if it is not reformed. Others are proposing that the WTO consider…
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