Thread by @GenevaTradeLaw

@snlester @pinarart @nicolas_lamp Part of the challenge of dealing with the issue ever since the US, under Obama, refused the renomination of Appellate Body members (first, an American, then a Korean), has been the ahistoricity of much of the debate.

The bargain in 93-94 was both deeply unusual and fragile. 1/

@snlester @pinarart @nicolas_lamp The story is oft told, but the lessons are lost.

1. The ITO died in 1947 because Congress refused to submit its prerogatives to binding dispute settlement. This, at the very pinnacle of Pax Americana and American internationalism. 2/

@snlester @pinarart @nicolas_lamp 2. The US commitment to international courts and binding dispute resolution waned long before the current fracas in the WTO. (Moynihan sets this out well in "On the Law of Nations".) The (arguable) inflection point came ten years before the WTO itself. 3/

@snlester @pinarart @nicolas_lamp 3. Every account of the UR negotiations suggests that the US favoured strengthening the GATT's dispute resolution mechanism, while the European Communities, aware of its growing heft, preferred negotiated outcomes. 4/

@snlester @pinarart @nicolas_lamp 4. Be that as it may, the reforms of the GATT in 1989, and then again in the context of the WTO in 1995, demonstrated a massive shift in attitude on the part of the US Congress. The fact that the first case in the WTO was against the US in respect of an environmental measure 5/

@snlester @pinarart @nicolas_lamp was not particularly edifying. One might well query what the reaction would have been in Congress had the Democrats not lost in 1994.

5. As it happens, even though a nominal loss, RFG represented a significant policy win for the US. The cases that followed, 6/

@snlester @pinarart @nicolas_lamp were time-limited losses (related to ATC) or, again, strong US policy wins.

6. I argued back in 1998 that some of those wins gave rise to legitimacy concerns. Key findings - both substantive and procedural - in the balance of the decade did not help. 7/

@snlester @pinarart @nicolas_lamp 7. The second inflection point was in the early aughts. This time, key Congressional prerogatives were under attack. Relations between the Appellate Body and panels had never been cozy, but the AB increasingly withdrew into itself and stopped listening. 8/

@snlester @pinarart @nicolas_lamp 8. The "rule of law", of course, is not just about parties subjecting themselves unquestioningly to laws and courts; it is also about legislatures and courts respecting, and paying heed, to the subjects affected by their actions. In the absence of functioning 9/

@snlester @pinarart @nicolas_lamp law-making, courts must be ever more vigilant about the impact, and acceptability, of their rulings on and for subjects. All the more so where the judicial organ cannot draw upon age-old provenance for its legitimacy.

9. The more it was challenged - by panels, by Members, 10/

@snlester @pinarart @nicolas_lamp the more the AB withdrew into its hardening cocoon of precedent. It substituted near-rote recitation of itself for analysis - except when it surreptitiously moved away from precedent, in which case a phalanx of "clearly"s were conscripted to mask lack of analysis. 11/

@snlester @pinarart @nicolas_lamp (In one twenty-line paragraph, the Appellate Body referred to "the Appellate Body" five times.)

10. The AB could *still* have been saved. But, like the popes of the reformation, they, and the Members, plowed on heedlessly along well-trodden and bereft paths. 12/

@snlester @pinarart @nicolas_lamp By 2016, "rule of law" apparently meant that a) no Member could criticise the comportment of individual AB members; b) no Member could exercise its treat-granted prerogative of refusing renomination; and c) the AB itself could intervene in the nomination of future members. 13/

@snlester @pinarart @nicolas_lamp 11. And when, as one could have expected, the vetoes came, the "rule of law" had been transformed into an unrecognizable straight-jacket: credible academic voices were arguing that by exercising its rights under the DSU, the US was in violation of the DSU. 14/

@snlester @pinarart @nicolas_lamp Otherwise sensible people argued in favour of "isolating" the US; some pushed "voting" as a solution. All around, collective amnesia took hold of the cognoscenti: "if only we knew what the US wants." Fifteen years of statement after statement were memoryholed. 15/

@snlester @pinarart @nicolas_lamp 12. The AB was the ITO court that dared not speak its name; over its twenty-five years, it did much good - reviving the VCLT and introducing generations of trade lawyers to the Oxford Shorter Dictionary being among these - but it also provided a "how-not-to" guide for future 16/

@snlester @pinarart @nicolas_lamp international appellate courts.

Chances are Congress will revert to its pre-1995 scepticism of international trade courts; the AB as it stood in 2016 is unrevivable.

13. What then of DSU 2.0?

My guess is that as soon as the non-US crowd sits down to draft a new DSU, 17/

@snlester @pinarart @nicolas_lamp they will run into the same problems. Simply put, in 1995 we fixed one problem (the panels) but did not know what the AB would be like. Watch while the "The AB can do no wrong" crowd takes stock, and looks for institutional or substantive correctives. 18/

@snlester @pinarart @nicolas_lamp 14. Here is one piece of advice for the negotiators and users of DSU 2.0.

We the Members made a mistake in the early days of the WTO. (I was there.) We held off on criticising the nascent Appellate Body for fear of deligitimising it. There were instances, 19/

@snlester @pinarart @nicolas_lamp to be sure, but they stand out because they were rare. In the absence of a functioning legislature, constant and critical dialogue - not just by the losers but by the winners - between subjects and courts is essential.

Without that, DSU 2.0 will also end up failing. /fin