Research On Reforming The Scope Of Review Of WTO Appellate Body

As the only globally international organization dealing with matters related to inter-state trade rules,WTO has played an active role in promoting the sustainable development of international trade since its establishment.One of the basic functions of WTO is to resolve trade disputes among nations.Appellate Body of its Dispute Settlement Mechanism almost works as the "Supreme Court" of international trade.It can make final decisions on appeals submitted by members.Since 2016,the United States has continued to claim that Appellate Body committed "institutional violations" of appellate scope of review,such as reviewing factual issues and issuing advisory opinions on unnecessary issues.Recently,it has even stated that the functions of the Appellate Body must be weakened in order to promote the reform of WTO.Regarding the unilateral countercurrent caused by the United States,lots of countries actively submitted advice to WTO,hoping that the multilateral trading system established by WTO could be maintained and the international trade could be prevented from being controlled by power.However,the application of provisions on the scope of appellate body review in the Understanding on Rules and Procedures for Dispute Settlement(hereinafter referred to as DSU)do have deficiencies in judicial practice.Therefore,the purpose of this article is to proceed from such provisions in the DSU,analyze the problems of the Appellate Body in judicial practice,and discusses the appellate review or similar appellate review procedures in other international dispute settlement mechanisms,finally put forward some feasible advice to advance the reform of WTO.Considering that the WTO Appellate Body has been suspended since the completion of this article,I hope that it can contributes to not only the reform of WTO Appellate Body but also exploring the establishment of an appellate body in other bilateral or multilateral dispute settlement mechanism such as ICSID.This article is divided into four chapters.The first chapter is an overview of the WTO Appellate Review,covering two sections respectively introducing the basic content of it and the current status of the operation of Appellate Body,includes the intention of the establishment of WTO Appellate Mechanism,the statutory Scope of WTO Appellate Review and its limitations in application,the international opinions towards the reform on WTO Appellate Body.The second,third and fourth parts respectively focuses on the following three judicial application limitations of DSU provisions concerning the scope of appellate review: 1)Appellate Body breaks the ‘legal review' limit of scope;2)The lack of remand procedures has led the Appellate Body to develop a “Complete Analysis” approach;3)Lack of norms in the application of Judicial Economy Principle.These three chapters also introduces relevant situations in other international dispute settlement mechanisms and relevant proposals from different countries.The second chapter analyzes the limitation 1 from two respective(factual issues are difficult to distinguish from legal issues,and Article 11 of DSU also provide a channel for the appellant to bring factual issues in to appeal review),and after comparing WTO Appellate Body with other international mechanisms and suggestions from different countries,a proposal to strictly limit the scope of appellate review within legal matters and issues is proposed.The third part introduces “Complete Analysis” approach,compares relevant situations in domestic and international judicial system,and refers to relevant recommendations from different countries,then reconfirms the rationality of the proposal “grant the Appellate Body the right to remand”.The fourth chapter shows the types of applying the Judicial Economy Principle by the Appellate Body,discusses the possible impact of improper application of the principle,analyzes different judicial and legislative experiences of other international dispute settlement mechanisms in applying Judicial Economy Principle,and suggests the DSB should regulate its application by revising specific articles of DSU after comparing the different opinions put forward by various countries.