The WTO's Appellate Body
Legal Formalism as a Legitimation of Global Governance
Bibliographic Data
| ID | 6265165 |
|---|---|
| Authors | Sol Picciotto (0000-0003-4251-0765, Lancaster University, corresponding author) |
| Year | 2005 |
| Volume | 18 |
| Issue | 3 |
| Pages | 477-503 |
| Publication date | 2005-07-01 |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Governance (JOURNAL) |
| Journal identifiers | ISSN: 0952-1895 • E-ISSN: 1468-0491 |
| Publisher | Wiley (PUBLISHER • GB) |
| DOI | 10.1111/j.1468-0491.2005.00285.x |
| OpenAlex | W2099778089 |
| Language | EN |
| Citations received | 7 |
| References cited | 45 |
The creation of the Appellate Body (AB) of the World Trade Organization (WTO) entails an unprecedented delegation of power to an international adjudicator, because the WTO requires states to ensure compliance of their domestic regulations with the sweeping obligations in WTO agreements. This is legitimized in some academic analyses and much political rhetoric in terms of the rule of law, suggesting that the role of the adjudicator is merely to apply the precise words of the texts agreed by states, according to their natural meaning. The AB has supported this by adopting a formalist approach that combines an objectivist view of meaning with a legalistic style of judgment. However, both the general structure and many of the specific provisions of the WTO agreements are indeterminate and raise issues of interpretation that were known to be highly contestable. Although the delegation of adjudication in its early phase was considered to be of a narrow technical function, in the current phase interpretation is more clearly seen to involve a flexible application of principles to cases in light of the policies involved. The AB's role would be better legitimized by adopting a more open epistemology and reasoning that could be accessible to a wider constituency. However, it is constrained by fear of usurping the political legitimacy of the governments to which it is primarily accountable, and governments, in turn, are motivated by a reluctance to admit to their domestic constituencies how much power has been transferred to supranational instances such as the AB
Adjudication · Delegation · Law and economics · Legitimacy · Legitimation · Political science · Politics · Sociology · International Arbitration and Investment Law · International Law and Human Rights · Law · World Trade Organization Law
The Principles of Representative Government
Positivism and Fidelity to Law
Positivism and the Separation of Law and Morals
Private rights vs public standards in the WTO
Discursive Democracy
The World Trade Organization
The Economization of Politics
Fragmented States and International Rules of Law
Transnational Democracy
Decisions of the Appellate Body of the World Trade Organization
The 'constitutionalization' of international trade law
Resisting the Merger and Acquisition of Human Rights by Trade Law
Defending Interests
Vanderbilt Journal of Transnational Law
Law and Policy in International Business
Rethinking WTO Trade Sanctions
The Concept of Legalization
Hard and Soft Law in International Governance
Legalization, Trade Liberalization, and Domestic Politics
Alternatives to “Legalization
Is WTO Dispute Settlement Effective
International regimes, transactions, and change
Resolving or Exacerbating Disputes? The WTO's New Dispute Resolution System
The WTO on Trial
| Citations per year | 0.39 |
|---|---|
| Citation span | 2008 - 2023 (16) |
| Highly cited | No |