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International Economic Law and GovernanceEssays in Honour of Mitsuo Matsushita$
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Julien Chaisse and Tsai-yu Lin

Print publication date: 2016

Print ISBN-13: 9780198778257

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198778257.001.0001

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Decision making in the WTO

Decision making in the WTO

From Negotiated Law-making to Judicial Law-making

Chapter:
(p.487) 29 Decision making in the WTO
Source:
International Economic Law and Governance
Author(s):

R Rajesh Babu

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198778257.003.0029

In the recent times, the ‘consensus’ decision-making processes practiced in WTO have come under criticism owing to constant deadlocks. This inability of political bodies to address and respond to challenges, specifically in relation to the clarification and interpretation of the WTO Agreements, has undermined the carefully balanced WTO rights and obligations. This chapter attempts to highlight the implication of the judicial decision making on the developing countries and on WTO multilateralism. It argues that the judicial norm creation and the inability of the political bodies to provide adequate check, has resulted in a scenario where judicial law-making has superseded negotiated consent-based law-making. This development has not only undermined the rights and obligations assumed by the developing countries under the WTO covered agreements but has also undermined state sovereignty and member-driven decision-making processes. Consequently, the legitimacy of the panels/Appellate Body rulings and the credibility of the dispute settlement process are under threat.

Keywords:   ‘consensus’ decision making, interpretation of the panel and Appellate Body, judicial decision making, judicial overreach, WTO decision making

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