The Gang that Couldn't Shoot Straight: The Not so Magnificent Seven of the WTO Appellate Body

Abstract

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I share his basic conclusion with no buts and ifs. I simply add that this approach is not the outcome of a process that mandates this standard of review, but simply a political (e.g., nonlegal) reaction aimed at placating its clientele, the WTO membership.