Busier than ever? New CTEI working paper on WTO Dispute Settlement
Conventional wisdom has it that, in recent years, the legalized mechanism of dispute settlement before the World Trade Organization (WTO) has been “busier than ever”, “a victim of its own success”. A new CTEI Working Paper by Joost Pauwelyn and Weiwei Zhang uses count data to assess the WTO’s current caseload and examines how it has evolved since the WTO’s creation in 1995.
The paper finds that WTO dispute settlement does, indeed, experience a peak in terms of the total number of cases pending before panels and the Appellate Body (AB). However, this is not due to an increase in new cases filed (a number that has actually gone down), but rather because pending cases take much longer to conclude as they have become more complex and are often delayed for lack of human resources. In addition, fewer cases filed get formally settled, appeal rates remain high, and the share of follow-up disputes over compliance has increased, all three factors leading to more (pending) caseload without actually more (new) cases filed. Also the number of panel and AB reports issued per year is trending downwards, not upwards.
The paper also looks forward ten years, forecasting panel and AB caseload using different scenarios. The paper forecasts that the current glut in WTO caseload will not last, but rather will peak in 2020-2022. The paper also suggests that relatively small improvements could bring WTO caseload down to surprisingly low levels of 6-7 concurrent panels, and 1-2 concurrent AB proceedings. These improvements include: panels and the AB renewing compliance with timeframes set out in the WTO treaty; the system improving on its “clearly preferred” solution of settlement, and parties exercising restraint when it comes to appealing panel reports.