Arrested Norm Development: The Failure of Legislative-Judicial Dialogue in the WTO

The history of the WTO has been marked by a fundamental imbalance: while WTO Members have largely failed to negotiate new legal rules, the WTO’s dispute settlement system has been very active (and provoked significant backlash). The paper explores the reasons why WTO Members have failed to do their part in shaping norm development in the WTO—either by offering guidance to the dispute settlement organs ex ante or by overruling them ex post—and have thereby opened the space, but also created the necessity, for panels and the WTO Appellate Body to develop their jurisprudence autonomously. The paper builds on the existing explanations to provide a fuller picture of what has blocked state-driven norm development. It argues that divergent views about the scope of the judicial function in the WTO have shaped approaches to legislative overruling, as well as WTO Members’ desire to preserve the legally innocuous character of the WTO’s councils and committees, form key parts of the explanation.