Breaking the Impasse of Appointing Members of the WTO Appellate Body: A Perspective from International Institutional Law

Abstract At the 13th Ministerial Conference, WTO members reaffirmed their commitment to restoring a fully functioning dispute settlement system by 2024. By the end of the year, some progress had been made, but an agreement remains elusive. The re-election of Donald Trump as US President adds further uncertainty to these efforts. Against this background, this article re-examines the proposal for the General Council to appoint Appellate Body members through majority voting. It argues that customary rules of interpretation applicable to the constituent instruments of international organizations justify the legality of a vote in the General Council to support the effective functioning of the WTO. To address WTO members' concerns about the negative impact on consensus-based decision-making and the loss of leverage for reforms, this article suggests a General Council decision to appoint fewer than seven Appellate Body members. While not addressing all challenges facing the dispute settlement system, the proposal would bring more certainty to the early recovery of the system.