Alternative for Avoiding the Void: The ICJ as a Temporary Appellate Review Mechanism in WTO Disputes Amidst the Appellate Body Crisis

Article 23(1) of the World Trade Organization (WTO) Dispute Settlement Understanding (DSU) provides that members shall have recourse to the procedures provided for under the DSU. However, the absence of a standing Appellate Body within the WTO creates a significant gap in the DSU dispute resolution mechanism, leaving parties with no effective avenue for appeals of panel reports. Notably, under Article 36(1) of the Statute of the International Court of Justice (ICJ), the jurisdiction of the ICJ extends to all cases referred to it by parties, regardless of other agreements or treaties.

This Note posits that in light of the Appellate Body crisis, WTO member states that are parties to a dispute may submit appeals of panel reports to the ICJ, ensuring that they have a viable recourse for seeking redress for violations of obligations under WTO agreements. Without access to the broad jurisdiction of the ICJ in light of the Appellate Body Crisis, the right to appeal under the DSU becomes illusory, undermining the fundamental principles of fairness and justice within the multilateral trading system.