Stratos Pahis (Wake Forest University – School of Law; Brooklyn Law School) has posted Appeals After the Appellate Body (Forthcoming, World Trade Review 2024) on SSRN. Here is the abstract:
The Appellate Body (AB) of the World Trade Organization (WTO) has not heard an appeal since 2019. This article explores how adjudicators and member states have navigated WTO dispute settlement in this post-AB world. It begins by providing an overview of dispute settlement practice from 2020-2022, including by cataloguing appeals into the void, appeals to arbitration, and appeals forewent. It explains the incentives created by the lack of a functioning appeals mechanism and provides background on the alternative appeals procedure agreed to among a subset of WTO members: the Multi-Party Interim Arbitration Arrangement (MPIA). Moreover, it closely examines five WTO disputes: DS371, DS524, DS583, DS591, and DS595. Through these five disputes, the article examines the circumstances in which members have agreed to binding appeals arbitration even absent formally committing to the MPIA, the circumstances in which members have appealed to arbitration or foregone such appeals, and whether facilitated negotiations present a workable alternative to an effective appeals mechanism. Finally, this article closely analyzes the reasoning of two arbitration awards issued to date—DS591 and DS583—with a special focus on how those awards depart from AB precedent and what those departures can tell us about the current crisis.