How to Treat The WTO's Problem with Precedent

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent — which United States cited as cause paralyze AB by blocking new appointments is similar how it has approached “likeness” nondiscrimination cases. It placed lot weight whether two cases products) are sufficiently be compared, and spent relatively less time substantively treatment Because WTO does not have system stare decisis, panels generally explain why they find decisions persuasive, rather than simply relying similarity justify carrying interpretations forward. The begins examining evaluating results study from Jeffrey Kucik Sergio Puig, first use large dataset precedent. then advances framework for dispute should evaluate relevance future disputes. proposed approach would treat comparison merely threshold inquiry. If alike one party contests applicability decision, tribunal light variety factors. In some instances, result may panel acknowledges interpretation was wrong followed. Openly analyzing persuasive value cases, acknowledging when those followed, better promote goals promoting predictability, transparency, coherence law’s application compared deference based only