Most Interesting 2022: Papaconstantinou & Pedreschi: Alternative Dispute Settlement and the Jurisprudential Legacy of the World Trade Organization's Appellate Body

The second in our series "Most Interesting 2022":

George A. Papaconstantinou & Luigi F. Pedreschi, Alternative Dispute Settlement and the Jurisprudential Legacy of the World Trade Organization's Appellate Body, Journal of World Trade, Vol. 56, no. 2, pp. 261–282, 2022

This article is written in the backdrop of the Crown-Jewel of the WTO - the AB, being defunct and the resultant adoption of alternative dispute resolution mechanism by WTO Members under Multiparty Interim Appeal Arbitration Arrangement (MPIA) and Preferential Trade Agreements (PTAs), for appeals. The impact the decisions so rendered would have on the jurisprudential legacy of the AB is stated to be both good and bad. In the case of PTAs, Authors argue, it would decide cases only if they are related to WTO obligations and agree to be amenable to both PTA and/or WTO adjudication. In the case of the MPIA, the availability of opportunity to adjudicate areas “where there is absence of settled case law” (like under GATS); and to bring in novelty in areas where conflict exists in the present jurisprudence (Article XIX of GATT and the Agreement on Safeguards etc) are considered to be creating good impact. Whereas, the adverse impact stems from possibilities of fragmentation of AB jurisprudence, which again could be in two ways. First, could be the possible departure from the established WTO corpus while interpreting and applying the WTO law to the WTO obligations; and second, loss of precedentiary value by non-adoption of awards by entire WTO Membership. The adverse impacts are diluted by pointing out that most of the contentious issues are already considered by the AB; and the mandatory notification to the DSB of intent to adopt arbitration and also the award, lowers risk. The ADR is welcomed as it re-establishes the opportunity to appeal, thereby contributing to security and predictability of the MTS and suggests it should not be jeopardised, subject to the only risk that their decisions shall not fail to strike the appropriate balance between the WTO obligations and the policy objectives of the Members. This article is worth reading as it identifies the areas of challenge and the opportunities that the adoption of the alternative system brings into international trade jurisprudence. The alternative is definitely recognised as a stopgap arrangement till the revival of the AB and thus this article adds up to the literature on the discourse among international scholarship, which suggest reform of DSU rules and procedures. It is enlivening to reconcile that it's not dooms-day yet and that the efforts of the MTS in establishing stability and predictability in affairs of international trade remains preserved by its Members.

Megha Mukundaswar
Advocate and Research Scholar