Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”

• Pages: 116-125
• DOI: https://doi.org/10.1108/JITLP-11-2015-0033
• Published date: 21 September 2015
• Date: 21 September 2015
• Author: Andrew Lang
• Subject Matter: Strategy,International business,International business law

Twenty years of the WTO

Appellate Body’s “fragmentation

jurisprudence”

Andrew Lang

Law Department, London School of Economics, London, UK

Abstract

Purpose – This paper aims to reect on the rst 20 years of the World Trade Organization (WTO)

Appellate Body’s jurisprudence, specically as it relates to questions of normative fragmentation. It

provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to

fragmentation, with particular focus on the use of general public international law in the context of the

WTO dispute settlement.

Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied

to the case law of the WTO.

Findings – The paper suggests that the Appellate Body’s approach has not been driven by the

institutional myopia and normative closure of which they are sometimes accused, but rather a judicial

sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint.

Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing

attention in particular to the importance of international lawyers and tribunals in contributing to

fragmentation, not just responding to it. The fragmentation of international law is, in part, the product

of ongoing boundary work, and the “fragmentation jurisprudence” of the Appellate Body has

predictably involved boundary work of a particularly intense kind.

Keywords WTO, Appellate body, Fragmentation, Dispute settlement,

General public international law, Jurisprudence

Paper type Research paper

The World Trade Organization (WTO)’s new dispute settlement machinery was one of

a number of new international courts and tribunals established during the long decade

between the end of the Cold War and the beginning of the new millennium. For

international lawyers – long accustomed to life on the margins – the proliferation of new

and vibrant specialised regimes of international law was both energising and

anxiety-producing. At the heart of the anxiety, as Koskenniemi and Leino (2002) have

described, was a concern about the incoherence of international law, famously leading at

the end of the 1990s to a debate amongst international lawyers about the dangers of the

growing normative incoherence of the system. What would happen when two

international tribunals sought to apply inconsistent rules to the same dispute? Could one

tribunal legitimately consider rules of law which fell outside its specialised mandate, so

as to reduce the chance of conict? Given its position as one of the most signicant, and

certainly the most active, of this new generation of international tribunals, the WTO’s

Appellate Body has been closely scrutinised for the approach it has taken in cases which

appear to raise questions about the relationship between WTO law and so-called

The current issue and full text archive of this journal is available on Emerald Insight at:

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JITLP

14,3

116

Journalof International Trade Law

andPolicy

Vol.14 No. 3, 2015

pp.116-125

©Emerald Group Publishing Limited

1477-0024

DOI 10.1108/JITLP-11-2015-0033