The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

16
The Appellate Body and its contribution to WTO
dispute settlement
DEBRA P. STEGER

It has been five years since the Appellate Body was established in 1995. On this anniversary, it is time to reflect on the development of the Appellate Body as part of the institutional structure of the World Trade Organization (WTO). I will leave it to others to comment on whether the first five years' experience with the Appellate Body has been positive or negative for the WTO, in general, and dispute settlement, in particular. I will attempt, instead, to provide a history of the evolution of the Appellate Body as a standing, “quasi-judicial” international tribunal, while reflecting on its contributions to WTO law.

This book is a tribute to the life and work of Professor Robert Hudec, who has been a leading light and educator on the history of the General Agreement on Tariffs and Trade (GATT) and the dispute settlement system, in particular. Weall owe a tremendous debt to Professor Hudec for his meticulous, comprehensive, and prolific research on the GATT/WTO dispute settlement system, as well as for his brilliant and inspiring ideas on GATT/WTO law and policy. A few important messages from Bob's writings on GATT dispute settlement, in particular, stick out in my mind. First, Bob has always maintained that an incrementalist, evolutionary approach to the development of the dispute settlement system in the GATT, and now in the WTO, is preferable to a negotiated approach. Unlike certain other commentators and critics of the GATT, Bob has always maintained that the GATT dispute settlement system before the conclusion of the Uruguay Round was working effectively, although there were some procedural reforms which could have been made. Also unlike certain other commentators, and I think correctly, Bob has always maintained that the GATT dispute settlement system as it existed during the Uruguay Round was “quasi-judicial” in nature, not entirely diplomatic. Finally, Bob has often been skeptical of negotiators who believed that GATT dispute settlement could be improved through negotiating significant modifications, rather than allowing incremental modification to the system. In one of his recent commentaries1 on the first three years' experience with the new WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU), Bob has cautioned us not to forget that even with binding Dispute Settlement Body (DSB)

____________________
1
Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minnesota J. Global Trade 1 (1999).

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