Ministerial Conferences as Law-Making Forums: Has the WTO shifted from rule-based adjudication to negotiation-driven governance?

Abstract

The World Trade Organization (WTO) was established with the intention of a rule-based multilateral trading system based on binding treaty obligations and mandatory settlement of disputes, and adjudication that was intended to provide security, predictability and equality among Members. Since December 2019, however, the inability of the Appellate institution as a result of the sustained boycott of judicial appointments has had a fundamental impact on this architecture resulting in the phenomenon of "appeals into the void" and a weakening of the enforceability and legitimacy of WTO law. This paper focuses on how the erosion of rule-based adjudication has led to functional redesign of the governance of the WTO in favor of negotiation-driven mechanisms. It examines the growing institutional significance of Ministerial Conferences, Joint Statement Initiatives, as well as other plurilateral processes that do not fit into the traditional Single Undertaking framework but are increasingly playing a role in the rule-making process through setting expectations, coordinating Member conduct, and managing legal uncertainty in the absence of any authoritative judicial interpretation. Against this background, the paper examines WTO Ministerial Conference 14 ex ante as an institutional culmination of the post-Appellate Body governance trends, and as having little significance in terms of prospective substantive outcomes, but as a focal point in a negotiation-centric process of rule formation in a fragmented and geopolitically constrained trading system. Particular attention is given to strategic developments such as China's declaration not to avail new Special and Differential Treatment while retaining developing country status, as examples of broader recalibrations of participation, legitimacy, and burdens of sharing within the WTO. Adopting a doctrinal and institutional approach based on the interpretation of legal texts, rules of dispute settlement and ministerial instruments, the paper concludes that while the negotiation-driven approach to governance has allowed institutional adaptation in the face of adjudicatory paralysis, its ability to preserve rule-based multilateralism depends on the successful incorporation of plurilateral outcomes into the formal WTO framework as well as a renewed commitment in the enforcement of legal disciplines that are enforceable.