THE EXTENSIVE (BUT FRAGILE) AUTHORITY OF THE WTO APPELLATE BODY

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 (WTO) 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. 1 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 WTO councils, committees, working parties, and other groupings, including a Dispute Settlement Body (DSB). 2 The AB lies at the apex of the WTO dispute settlement system and consists of seven members appointed by the DSB. These members serve ...