Empowering the WTO Appellate Body to Render Advisory Opinions: a Solution to the Crisis or its Aggravation?

Abstract In the Ministerial Decision on Dispute Settlement Reform of 1 March 2024 the World Trade Organization (WTO) Members decided to continue working on resolving the issue of blocked appeal function. Unfortunately, it has already been six years that the WTO Members failed to resolve the crisis of the WTO Appellate Body. Against that background the authors suggest considering a change of paradigm with a shifting of the function of the Appellate Body from resolving specific disputes to rendering advisory opinions upon request of the WTO Members or panels. When advisory opinions are sought by the WTO Members, these opinions will contribute to the predictability of the interpretation of the provisions of the WTO Agreements. Advisory opinions requested by panels will assist such panels in resolving particular disputes. In this article, the authors discuss whether the Appellate Body’s function of rendering advisory opinions may effectively contribute to the resolution of the Appellate Body crisis. To support this idea, the authors have identified the main features of advisory opinions rendered by different international adjudicatory bodies. Further, the authors elaborate on the features of mechanisms of rendering such opinions which may serve as an inspiration for a much-needed reform of the Appellate Body.