The Lack of Dissent in WTO Dispute Settlement: Is There a “Unanimity” Problem?


This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, and assesses whether more dissents would be a positive for the WTO. I then review the few dissents that have been published, and demonstrate that fully sixty percent of the arguments raised in dissents at the panel level were adopted in whole or in part on appeal by the Appellate Body, thus illustrating dissents can and do make a difference. I conclude that keeping the lid on dissents may ultimately erode the strength of the dispute settlement system and hinder the ability of the WTO Members to make appropriate changes to the Agreements.


Dispute Resolution and Arbitration | International Law | International Trade Law | Judges | Jurisprudence | Legal History

Date of this Version

April 2006