23 Nov 2016

WTO Appellate Body faces a ‘tsunami’ of cases

The current and future challenges facing the Appellate Body of the World Trade Organization were the focus of a special lecture by its Chairman, Thomas R. Graham, at the WTO in Geneva on 22 November.

The event was co-hosted by the World Trade Institute, the University of Geneva Law School and the Graduate Institute of International and Development Studies, and attended by around 200 people.

A special programme for students on the WTI’s Master’s programme preceded the lecture. The MILE 17 intake received an introduction to negotiating in the WTO from Ambassador Ujal Singh Bhatia, a member of the Appellate Body. This was followed by a short talk on internships and employment opportunities at the WTO by Hye Seung Lee, the Head of Recruitment. Alumni Josefita Pardo de Leon (MILE 1), Xiaolu Zhu (MILE 3), Iryna Polovets (MILE 12) and Mengying Yu (MILE 15) then talked about their experiences working with the WTO after graduating.

The introduction to the special lecture was given by Professor Laurence Boisson de Chazourne, Professor of Law at the University of Geneva, who talked about the importance of the young international courts and tribunals, including the Appellate Body, which had been resorted to widely by states. The number of cases brought before the Appellate Body was without comparison, she said.

In his address, entitled 'Speaking Up: The State of the WTO Appellate Body', Thomas Graham highlighted the particular challenges of the past year owing to vacancies that had reduced the number of members from seven to five, requiring them to overlap on cases and work even harder.

Looking ahead, he said the Body could expect 17 or 18 new appeals next year, along with the carry-over of three appeals that are currently pending.

“In other words, we are expecting almost three times the number of appeals that we had in the busy year that we are now completing, and those 20-plus appeals next year will, almost certainly, include cases that are unusually large and complex,” warned Graham.

“This tsunami will cause a backlog that will build up and continue beyond 2017.”

From afterthought to essential structure

Graham reminded his listeners that the Appellate Body was an “afterthought”, created at the end of the Uruguay Round negotiations 20 years ago. It was “not exactly a court” since its decisions were subject to Dispute Settlement Body approval, and its judges - the Appellate Body Members - were part-time, were not expected to live in Geneva, and were not prohibited from holding other jobs. Few at the time expected the Appellate Body to be very busy or to play a central role in WTO dispute settlement.

“But the number of appeals, the number of issues appealed, and the number of arguments and pages, have all grown enormously, especially in recent years. Mega-cases, such as the Airbus and Boeing cases, have stretched our capacity and made delays and queues necessary, and will do so again,” the Chairman said.

In conclusion, Graham said that having created the Appellate Body, WTO members needed to work closely with it “to maintain, nurture, and preserve the trust and credibility that has been built up over the years in this dispute settlement system, which is uniquely effective, but fragile, and which cannot be taken for granted”.

He called for a “common effort” to modernise the Body and put it on a sounder footing, not only in the area of independence and impartiality but also in areas such as matching resources to the growing demands, so that it is better able to meet "the challenges it faces today and will face more in the intense years of adjudication ahead". 

In his concluding remarks, Professor Manfred Elsig of the WTI said it was “great to observe what standing the Appellate Body has reached” in its 20 years, referring in particular to its role in the recent financial crisis. One of the Body’s strengths had always been the independence and impartiality of its judges but in the past year its independence has been questioned. Despite this, the Body had navigated the stormy waters safely.

The event ended with a reception hosted by the WTI.