The WTO’s Collapsing Judicial and Legislative Wings: Is ‘Consensus’ the Real Elephant in the Room?

Global Trade and Customs Journal. 2022. Vol. 17. No. 2. P. 81–90.

Boklan D., Bahri A.

The World Trade Organization (WTO) has three main functions: (i) it provides a negotiation forum where Members can negotiate new agreements and understandings, (ii) it provides a judicial forum where trade disputes between countries can be settled, and (iii) it acts as an executive forum for the administration and application of the WTO agreements, including capacity-building and training in this respect. Currently, it is only performing its executive function, as the other two functions remain stalled. The authors in this article analyse two challenges that have contributed to paralysing the WTO’s legislative and judicial functions. With this assessment, the authors suggest that the ‘real elephant in the room’, i.e., the root-cause behind these challenges, is the avoidable ‘consensus-based decision-making’.

Keywords: consensus, decision making, Appellate Body, national security exception, World Trade Organization (WTO)

Publication based on the results of: Protection of state interests in the sphere of international legal regulation of protection and trade in natural resources (2022)