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38 Tex. Int'l L.J. 469 (2003)
Experiences from the WTO Appellate Body

handle is hein.journals/tilj38 and id is 479 raw text is: Experiences from the WTO Appellate Body CLAUS-DIETER EHLERMANNt SUMMARY I. IN TRO D U CTIO N .......................................................................................................... 469 II. DISPUTE SETTLEMENT AND JUDICIAL INDEPENDENCE IN THE WTO .......................... 470 A . The D ispute Settlem ent Body ............................................................................. 470 B . P a n els ................................................................................................................ 4 7 1 C . App ellate B ody .................................................................................................. 474 III. M ETHOD OF INTERPRETATION ................................................................................... 480 IV. TENSIONS BETWEEN THE QUASI-JUDICIAL DISPUTE SETTLEMENT PROCESS AND THE POLITICAL DECISION MAKING PROCESS OF THE WTO ............................... 483 A . The Situation D e Lege Lata ............................................................................... 486 B. The Situation D e Lege Ferenda ......................................................................... 487 I. INTRODUCTION One of the best experts of World Trade Organization (WTO) law, Professor Thomas Cottier, has observed recently: The WTO is the most advanced laboratory of contemporary international law. It combines two unique features. First, a rule-making process based upon successive negotiating rounds and thus of evolution by periodical intervals. Second, a dispute settlement mechanism which offers not only two stages of review, first instance and appellate, but also monitoring and multilateral enforcement and implementation, all interlocking judicial and political modes of decision making. It is not astonishing that this unique combination raises issues which go beyond what is normally discussed in international law properly speaking: the balance of powers between global and national, or regional, law. These are fascinating issues, and the way they evolve is of paramount importance for global governance, way beyond the field of international trade regulation.' t Professor Dr., Senior Counsel, Wilmer Cutler & Pickering, Brussels; Former Member (1995-2001) and Chairman (2001) of the Appellate Body of the WTO. This paper was presented at the Symposium on Judicialization and Judicial Globalization in International Law sponsored by the Texas International Law Journal on September 5-6, 2002. Insofar as the Appellate Body is concerned, the following pages are largely based on a paper entitled Some Personal Experiences as Member of the Appellate Body of the WTO, published as a Policy Paper of the Robert Schuman Centre of the European University Institute on February 9, 2002. The same paper has been published under the title Six Years on the Bench of the World Trade Court-Some Personal Experiences as Member of the Appellate Body of the WTO, 36 J. WORLD TRADE 605-39 (2002). 1. Thomas Cottier, WTO Dispute Settlement and Multilateral Trade Negotiations: Is There a Need for Inter- Round Negotiations?, Paper Presented at the 2002 World Trade Forum: Dispute Settlement and Decision-Making

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