The US, the WTO, and the Appellate Body: from great expectations to hard times

The United States (US) began blocking members’ appointment and reappointments to the World Trade Organization’s (WTO) Appellate Body (AB) in 2011, causing creeping paralysis of this institution. Currently, the AB has no members and is inactive. The prospects for resurrecting the AB in its pre-crisis form currently appear dim, moreover, though the present crisis may prompt fresh thinking about world trade governance and dispute settlement. The likelihood of an enduring dispute settlement solution replicating the heavily legalised AB system is debatable, given the political and legal dynamics that have led to the present impasse. Blame for the current predicament of the Appellate Body is often cast on recent US administrations, with Barack Obama beginning a practice of blocking specific appointments, a strategy that evolved under Donald Trump, and to date appears to remain in place under the Biden administration. Given that the US was one of the principal architects of the AB and the WTO regime more generally, the central role of these administrations in undoing the AB is remarkable. To understand how international trade law and dispute settlement are to move forward, we accordingly need to understand how we reached the present situation. To this end, we examine US attitudes and behaviour towards the WTO, focusing on the AB specifically and international trade governance more generally, set in the context of broader developments in US domestic and external policy. Our survey extends from the WTO’s creation under the Clinton administration to the collapse of the Appellate Body under the Trump administration, using official sources and additional primary and secondary materials to trace US attitudes and conduct. We explore both continuity and change in American attitudes through this examination and outline how we reached the present situation, highlighting in turn potential systemic and institutional changes that may conceivably overcome this impasse. In general, we find that US behaviour over time is not as perplexing as it may appear. Rather, the Trump administration’s actions and attitudes can be understood as reflective of longstanding US preferences and concerns, with successive administrations having been unable to address these within the WTO/AB framework as set up in 1995