Can Panels Save WTO?

Häberli, Christian (17 February 2021). Can Panels Save WTO? SSRN http://dx.doi.org/10.2139/ssrn.3787577

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WTO is facing an unprecedented crisis. Multilateralism and international cooperation have crashed, not only because of a virus. Can WTO panelists don the strait jackets designed by the ‘automatic’ dispute settlement system of a non-supranational trade organisation, in order to find a ‘positive solution’ but without rulemaking? This paper argues that in cases in which trade rules play a lesser role, WTO can rule against globally coherent solutions. The present WTO impasse offers a surprising avenue for panelists and arbitrators, to apply peremptory international non-trade law and customary law principles (ius cogens). This window is open right now – thanks to the automatic adoption of adjudicator findings, such as, what is known as a non-violation of WTO rules. Emerging case law and the work of forward-looking academics show how to address measures with deleterious social and eco-dumping effects, unacceptable to the body politic at large. Complaints against trade-distorting human and labour rights violations, and perhaps even against measures causing excessive global warming, could lead future adjudicators to answer the repeated call of the presently defunct Appellate Body for a ‘holistic’ reading of WTO rules, across the fragmented international legal framework. WTO’s reputation would regain lost ground where it matters, namely in constituencies looking for better international governance and a level-playing field.

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