WTO Dispute Settlement Post 2019: What to Expect?

ABSTRACT What does the imminent demise of the WTO Appellate Body (AB) mean for the settlement of ongoing and future trade disputes? This editorial discusses two ‘unlikely solutions’, at least in the short term: the US lifts its veto on AB appointments; a WTO organ unlocks the impasse. Appeals pending on 10 December 2019 will most likely be carried-over pursuant to (contested) Rule 15 of the AB Working Procedures. For panel reports released after that date, four main scenarios emerge: (i) appeals ‘into the void’ blocking the panel report, (ii) no appeal ex post, or ex ante no appeal pacts, (iii) Article 25 appeal arbitration, (iv) ‘floating’ panel reports (interim or final), neither adopted, nor appealed/blocked. The transformation from GATT to WTO took half a century. Regular veto rights in the settlement of trade disputes may be back in a matter of months. It is one thing to lose the AB, quite another to return to pre-WTO dispute settlement where panel outcomes are not automatically binding and power relations play a considerably greater role. At the same time, it would be wrong to equate a (temporary?) return to GATT-style dispute settlement with the collapse of a rules-based WTO system.