By Davis Berlind
The past decade has seen little to no substantive action from the Trade Negotiations Committee (TNC) at the World Trade Organization (WTO). The Doha negotiation round is now dragging into its thirteenth year, and a successful conclusion to negotiations still appears to be a distant pipedream. In the absence of a multi-lateral deal on tariff reduction, protection of trade related intellectual property rights, and the elimination of domestic barriers to trade (specifically with regard to agriculture), the dispute settlement branch of the WTO is taking on an increasingly activist role in the adjudication of international trade disputes. Specifically, the Appellate Body is the new venue of rule making and enforcement at the WTO, and it is effectively using its authority to liberalize global trade between otherwise rigid member nations.
The regulatory shift from legislative to judicial intervention that is currently occurring within the WTO can be traced to the increase in WTO membership; in particular, the increasing membership of less developed countries (LDCs). Since the end of the Uruguay round in 1994, LDCs have begun to bundle their trade interests (e.g., elimination of agricultural subsidies in developed nations) and form voting blocs so as to successfully dismantle coercive and unilateral undertakings by the US and EU during multilateral negotiations. The resulting gridlock keeps legislative channels at the WTO locked down, but the stalemate has a second unintended effect: total judicial autonomy.