Interpretative Authority of the Appellate Body: Replies to the Criticism by the United States

The United States has been blocking consensus of the Members of the World Trade Organization on the appointment and reappointment of Appellate Body members by raising several concerns with the practice of the Appellate Body. At several recent meetings of the Dispute Settlement Body, the United States has outlined in detail its specific concerns, one of which pertains to the interpretative authority of the Appellate Body. More specifically, the United States criticizes the Appellate Body for treating its previous interpretations as "binding and controlling" and for insisting that they must serve as precedent "absent cogent reasons." This chapter analyzes the criticism and points out seven specific errors in it. It also argues that the United States wrongly or deliberately alters what the Appellate Body in fact stated in the past decisions with a view to discrediting the Appellate Body. Finally, it warns that the Appellate Body impasse would not be broken, as long as the United States maintains its erroneous views.