Process Failure: What Does the Lack of Appellate Review Mean for Due Process of Law in WTO Disputes?

Due process is a central principle in most domestic legal systems and international dispute settlement, although its contours are nebulous, and its application is highly contextual. The purpose of this article is to examine the role of due process as a principle in the World Trade Organization (WTO) dispute settlement, addressing the specific question of whether the absence of an Appellate Body (AB) and the resulting “appeals into the void” constitutes a violation of due process norms. We first discuss “due process” conceptually, focusing on the functions that due process serves and the importance of context in determining its components in each circumstance. To do so, we focus on the settings in which it has been given the most explicit content: common law countries in general and the United States (US) in particular. From this foundation, we identify the elements of due process embedded

in WTO dispute settlement as compared to the Dispute Settlement Understanding (DSU) and related documents. In addition, we examine how panels and the Appellate Body have interpreted these elements. Based on this analysis, we consider what the lack of appellate review means for due process in WTO disputes and offer some conclusions and recommendations for the future.