Examining the Operation of the WTO Appellate Body: Focusing on the Composition

Abstract

Abstract

Examining the Operation of the WTO Appellate Body : Focusing on the Composition

Ha-gyung Yi International Cooperation Major The Graduate School of International Studies Seoul National University

After the establishment in 1995, more than 500 cases were brought to the WTO Appellate Body. The significance of the organization necessitates a test for its operation. Operation of an organization can be tested by various factors. Among those, this paper focus on impartiality and professionalism by looking at the composition of the AB. The impartiality here refers to the independence from the members—governments—of the WTO. The AB sustains those values by articles in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Working Procedures for the AB. First, upon selecting the sitting Appellate Body Members, they demand broad representation of the Membership of the WTO. Second, the AB is distinct from the dispute settlement in the panel level in that it does not ban a national of the case from serving the case. The paper tested whether such a freedom cause home state advantage. Lastly, the DSB requires the Appellate Body Members to show expertise in the issues dealt in the organization. This paper analyzed whether the history of the AB composition reflected such three requirements mentioned in the DSB and the Working Procedures. After the analysis, it is found that the AB bears some problems. The composition does not represent the Membership of the WTO broadly and shows domination of some countries. The home state advantage does not distinctively appear and the impartiality seems to be sustained in the AB, yet leaving a room for anxiety due to high proportion of Members serving cases that involve home states. Next, only three out of twenty-seven Members showed expertise in trade remedy which occupies almost half of the cases brought to the AB.