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The Reform of the WTO’s Appellate Body and Its Implications on Strategic Trade Policies multilateral negotiations, international politics

Author Sangjun Yea and Junhyun Eom Series 20-01 Language Korean Date 2020.12.30

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   Paper studies the reform of the WTO Appellate Body (AB) and the implications in regard to the WTO members’ trade policies and their strategic use of the WTO Dispute Settlement Process (DSP). Based on an analysis of the 2020 USTR report on the WTO AB, we characterize two main criticisms leveled by the US against rulings of the WTO AB ‒ namely, the WTO AB’s activist role in interpreting WTO agreements, and the standard applied when reviewing issues of the respondent’s domestic law. We employ a game theoretic model which extends Maggi and Staiger (2011) by allowing the WTO AB to make a strategic decision maximizing the number of proper rulings based on a noisy signal, which is correlated with the trading countries’ joint payoffs. We find that as the signal the WTO AB receives is noisier, disputing parties have more incentives to engage in the DSP. Also, by assuming that reviewing domestic law negatively affects the respondent’s payoff when the country fails to receive a favorable ruling at the AB, we show that the respondent will become reluctant to go through the DSP even if its chance of winning in the arbitration process is not low. Arguably, the reform of the WTO AB leads member countries to choose more opportunistic trade policies while less number of disputes arise via the DSP. We review a number of WTO disputes cases to support our findings. Applying our analysis to the ongoing U.S. - Safeguard Measure on PV Products and U.S. - Safeguard Measure on Washers disputes cases, we conclude that arguing parties’ litigation responses may crucially depend on how the (reformed) WTO AB will deal with the issue of the “unforeseen developments” requirement in GATT 1994 - Article XIX.

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