The Extensive (but Fragile) Authority of the WTO Appellate Body
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THE EXTENSIVE (BUT FRAGILE)
AUTHORITY OF THE WTO APPELLATE
BODY
GREGORY SHAFFER*
MANFRED ELSIG**
SERGIO PUIG***
I
INTRODUCTION
Many may presume that the authority of an international court (IC) is
evolutionary and largely unidirectional. This article shows that the authority of
the Appellate Body (AB) of the World Trade Organization (WITO) rapidly and
almost immediately became extensive, but nonetheless remains fragile and at
risk of decline, and even (potentially) rapid decline. The AB is a young but
remarkably authoritative IC even though the founders of the WTO did not
deign to call it a court, arguably in the hope of constraining its authority.
Particularly remarkable is how the AB almost immediately established not
merely narrow (litigant-specific) authority and intermediate (membership-level)
authority, but extensive field-level authority. Such rapid development of
extensive field authority is arguably a unique case in international politics at the
multilateral level. Yet this authority remains fragile, and it could decline
rapidly.
The WTO's current system of resolving disputes has been in existence for
nearly twenty years and builds radically from a previous system under the
General Agreement on Tariffs and Trade (GATT) created in 1948.' The
interpretation, application, and enforcement of WTO rules take place through a
two-tiered dispute settlement system composed of dispute settlement panels
and an appeals process, complemented by a peer-review system of over seventy
Copyright @ 2016 by Gregory Shaffer, Manfred Elsig & Sergio Puig.
This article is also available at http://lcp.law.duke.edu/.
* Chancellor's Professor, University of California, Irvine School of Law.
** Associate Professor, World Trade Institute, University of Bern.
*** Associate Professor, James E. Rogers College of Law, University of Arizona. We thank Karen
Alter, Rachel Brewster, Joe Conti, Collette Creamer, William Davey, James Flett, David Gantz,
Laurence Helfer, Alex Huneeus, Mikael Madsen, Gabrielle Marceau, Niall Meager, Joost Pauwelyn,
participants at the 2014 American Society of International Law mid-year workshop, and the members
of the larger collective project for their comments at workshops at Duke and iCourts in Copenhagen.
We thank Mary Rumsey for her research assistance. All errors are our own.
1. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55
U.N.T.S. 194 [hereinafter GATT].](ViewImageLocal?handle=hein.journals/lcp79&div=12&collection=&method=preview&ext=.png&size=3)
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The Extensive (but Fragile) Authority of the WTO Appellate Body
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