AUTHORITY WITHOUT FINALITY: WTO ADJUDICATION AFTER THE APPELLATE BODY

Abstract

The paralysis of the WTO Appellate Body since 2019 has transformed the conditions under which international trade disputes are adjudicated. While panels continue to issue reasoned reports, the absence of appellate review has removed the mechanism that previously supplied legal finality and disciplined interpretive disagreement. This article examines how WTO adjudication functions under these conditions of non-finality and what form of legal authority, if any, persists.

Employing a qualitative doctrinal methodology, the article undertakes close comparative analysis of selected post-2019 panel reports and Multi-Party Interim Appeal Arbitration (MPIA) awards addressing identical treaty provisions. Rather than relying on aggregate claims about “panel practice,” it anchors its analysis in paragraph-level examination of trade remedies disputes, evidentiary review under DSU Article 11, and the reception of MPIA reasoning by panels outside the arbitration framework.

The article demonstrates that post-2019 WTO adjudication operates through a form of horizontal coordination characterized as soft stare decisis: panels are expected to engage with prior reasoning but are not obliged to follow it. This practice sustains legality through professional norms of justification, yet produces uneven analytical intensity and increasing instances of silent divergence. The MPIA, while reproducing appellate-quality reasoning, circulates without systemic authority and therefore cannot stabilize interpretation beyond consenting members.

The article argues that authority without finality is a workable interim condition but an unstable long-term equilibrium. It concludes by proposing modest, evidence-based reforms mandatory reasoned engagement, selective appellate review, and formal recognition of interpretive pluralism designed to restore legal authority without reinstating a hierarchical appellate body.