Finding a Rule-Based Solution to the Appellate Body Crisis: Looking Beyond the Multiparty Interim Appeal Arbitration Arrangement

In: Journal of international economic law, Band 24, Heft 3, S. 534-550

Abstract

ABSTRACT
The WTO dispute settlement system is in crisis due to the persistent blockage of the appointment of Appellate Body members by the United States. This paper reviews the US criticisms against the Appellate Body and argues that its allegations are unfounded and its approach is wrong. To deal with the US blockage, various proposals have been made, with the most popular being the Multiparty Interim Appeal Arbitration Arrangement (MPIA) set up by several key Members including the European Union and China. After a thorough analysis of the key features of the MPIA from both theoretical and practical perspectives, this paper argues that the MPIA fails to provide a proper solution to the Appellate Body crisis due to its many defects. Instead, the paper suggests the appointment of Appellate Body members based on majority voting at the General Council. This paper concludes by noting that only such a rule-based solution can not only solve the current Appellate Body crisis but also deter similar attempts to sabotage the WTO dispute settlement system in the future.