Journal of International Economic Law Advance Access originally published online on April 17, 2009
Journal of International Economic Law 2009 12(2):289-331; doi:10.1093/jiel/jgp016
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© Oxford University Press 2009, all rights reserved
The WTO Appellate Body's Decision-Making Process: A Perfect Model For International Adjudication?
Correspondence: * Colombian lawyer, Doctor of Laws, University of Ottawa. The author wishes to thank J. Anthony VanDuzer, Amy Porges and two anonymous referees for their invaluable comments. E-mail: aalva076{at}uottawa.ca. This article is dedicated to Eliana, Leticia, Valeria Aluna and Alberto.
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Abstract |
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The functioning of the Appellate Body (AB) is virtually perfect in terms of collegial decision-making. During its first 12 years, it has produced more than 70 reports dealing with controversial trade and non-trade issues with results that are astonishing. First of all, the AB has usually met the strict 90-day deadline to render its decisions, established by the Dispute Settlement Understanding (DSU). Second, despite the fact that the AB has dealt with issues of paramount domestic and international relevance, which could lead to internal divisions among AB Members, the collegial decision-making process of the AB has managed to decide all cases so far with only three separate opinions. And third, even though the AB decides by Divisions, its case law has been coherent through all of them. How has the AB's; collegial decision-making process been able to achieve these results? Former AB Members have provided some descriptions of the AB's; decision-making process. However, they face limitations on the scope of the disclosure of how the AB decides appeals and therefore can provide partial explanations for the success of the institution. This article seeks to fill in this gap using theoretical and comparative analyses to reveal the formal features and informal practices of the AB that allow it to achieve the aforementioned outcomes.