Looking in the Rearview Mirror: First-Hand Accounts of the Appellate Body in Light of Its Downfall

This article looks at the farewell speeches and other contributions of members of the WTO Appellate Body through the lens of the accusations levelled against the Appellate Body by the US, which invoked these accusations as reasons for blocking all appointments to the Appellate Body and thereby, in effect, ending the Appellate Body’s existence. It finds that the US was correct insofar as it claimed that Appellate Body members did perceive the Appellate Body not only as a mere settler of specific disputes – the role the US believed the Appellate Body should limit itself to – but as a courtlike institution with the task of developing a coherent and consistent body of jurisprudence. However, Appellate Body members rejected almost uniformly allegations of judicial activism and judicial overreach. Moreover, many Appellate Body members warned of the dangers of the imbalance between a very active WTO judicial branch and a mostly dysfunctional WTO legislative branch and called for overcoming the legislative deadlock.