The Authority of “Precedent” in International Adjudication: the Contentious Case of the WTO Appellate Body’s Practice

Abstract

One of the reasons adduced by the U.S. for paralyzing the WTO Appellate Body (AB) through the non-replacement of its outgoing members has been that the AB has developed a doctrine of binding precedent based on its previous decisions, thus allegedly departing from what had been agreed in the original negotiations. This article, based also on the author’s past experience as a member of the AB, intends to show that this criticism is groundless. The AB has not followed such a doctrine but has developed a consistent interpretation of the multilateral trade agreements in accordance with the WTO objectives of promoting stability and predictability of the system. The AB statement that past interpretation of the WTO agreements provisions should be followed by Panels “absent cogent reasons” is in line with the practice of other international courts and tribunals.