(De)Legitimation at the WTO Dispute Settlement Mechanism

I. Introduction Since the transition from the ad hoc dispute panels under the General Agreement on Tariffs and Trade (GATT) to the more institutionalized Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO), legal scholars and trade lawyers have focused extensive commentary on how the WTO's adjudicative bodies seek to gain or maintain legitimacy among various constituents. 1 Some argue that WTO dispute settlement panels exercise judicial economy in order to appease the wider membership when governments are ambivalent about a ruling's future consequences. 2 Others contend that the Organization's Appellate Body (AB) adopted an activist approach to procedural issues during its early years as a means to cultivate its legitimacy among WTO Members, 3 while still others emphasize the AB's use of "majoritarian activism" within rulings as a means to overcome government challenges to its exercise of authority. 4 Relatedly, a few scholars have sought to understand the effects that various institutional practices have on the legitimacy of these bodies. Some argue that the DSM's legitimacy depends on balancing competing values, such as fair procedures, coherence and integrity in legal interpretation, and institutional sensitivity. 5 Others argue that the dispute panels' and Appellate Body's ability to reconcile multilateral trade liberalization with other, sometimes conflicting, values is crucial for its maintenance of public support. 6 Moreover, a significant number of proposals have been put forward regarding how the DSM's legitimacy may be strengthened. 7 The vast majority of claims about the DSM's legitimacy and related ...