Re-Imagined Communities: the WTO Appellate Body and the Communitization of WTO Law

Do the WTO Agreements create a mere multi-party contract, establishing bundles of bilateral legal relations that pairs of WTO Members remain free to shape and reshape on the basis of mutual consent? Or do they establish a community, a common legal system whose rules can only be modified pursuant to the legal regime’s collectively agreed procedures? By establishing a common institutional framework for the negotiation of trade relations, the WTO Agreements set up a forum in which decisions can be made collectively affecting all Members. On the other hand, the early years of the WTO saw a controversy with respect to the character of this forum, if merely an opportunity for bilateral bargains or a legal community whose rules condition the bilateral relations among the Members. This chapter argues that the Appellate Body’s reading of the function of adjudication and the institutional provisions of the WTO Agreements has resulted in a significant communitization of WTO law. Contrary to what some expected, this communitization did not result in a trade-focused regime. Instead, the approach adopted by the Appellate Body to the WTO Agreements puts on equal footing ‘trade’ and ‘non-trade’ goals. Trade-restrictive and even discriminatory measures are permissible as long as they find a justification in a non-trade goal that the community of Members determines to be legitimate. Crucially, the Appellate Body infers the views of this community not only from decisions of WTO bodies but also from other multilateral decisions and documents that, in its view, express a consensus or a common understanding regarding interpretations and legitimate non-trade concerns.