Filling Legal Gaps and the Separation of Powers at the WTO: To Judge or Not to Judge on Non Liquet

Abstract

While not ruling upon a matter seems antithetical to any judicial body’s raison d’être, operationalizing non liquet, we argue, has the potential to help address certain criticisms of the World Trade Organization’s (WTO’s) highest judicial chambers (the Appellate Body) that pertain to judicial overreach and a subversion of a demarcated separation of powers. By first assessing the legal acceptability of non liquet under public international law (PIL) at large and WTO law in specific, the article argues that there is space for non liquet to be legitimately used in WTO adjudication, so long as a principled approach circumscribed by the fundamental prescription of the WTO ‘to not add to or diminish the rights and obligations’of WTO members, is followed. As our risk theory analysis then helps identify, non liquet would likely have a number of pitfalls that would require ex ante guardrails to be prescribed by the membership. The article concludes by proposing some options for WTO members to outline what non liquet could entail, both substantively and procedurally, so as to insure against various risks. More fundamentally, the article seeks to emphasize the need to reconsider the role of WTO adjudication and its interaction with the legislative wing in light of changing paradigms in the international trade law order.