On February 12, 2020, I provided this statement to reporters inquiring about the recent USTR report. I post it here for anyone interested:
It’s a sophomoric Report teeming with misstatements.. The Report avers that the Appellate Body “chronically violates the rules imposed by WTO Members” which is false regarding the Appellate Body but true with regard to USTR which does chronically act in ways that violate WTO rules. For example the USTR’s Section 301 sanctions. Sadly, the US Commerce Department is also a chronic WTO rules violator. The US has by far lost more WTO cases against it than any other country has.
The gist of the USTR Report is that WTO tribunals should allow the Trump Administration to continue to impose protectionist measures such as abusive antidumping duties.
The Trump Administration has succeeded in shutting down the Appellate Bod,y but there never was any legitimate reason to do so.
The Appellate Body has been enormously successful at strengthening the WTO legal system including enforcement of panel decisions.
Even assuming that the USTR’s objections to appellator actions have validity, the Report itself fails as a balanced assessment of the contributions and deficiencies of the Appellate Body. Certainly, its positive contributions outweigh any mistakes the Appellate Body has made. In my 24 years of scholarship on the Appellate Body, I have noted many WTO judicial decisions that I did not fully agree with. But I don’t agree with every US Supreme Court decision either and obviously even justices on the Supreme Court also don’t agree with many decisions which is why there are so many 5-4 or 6-3 decisions. It’s the nature of courts, like the Appellate Body, to issue decisions that reasonable people won’t always agree with. But in legal systems, courts are not abolished for issuing questionable decisions. That’s why USTR’s attack on the Appellate Body has been so shameful and unprincipled.
Defenestrating the Appellate Body will severely weaken the WTO dispute system and without dispute settlement, the effectiveness of the WTO will diminish.
