As the EU seeks to continue reaping the benefits of multilateral trade and to restore and reform the WTO dispute settlement mechanism, Chapter 4 focuses on the EU-led alternative created for the appellate stage: the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), which ensures that its parties can continue using the two-stage WTO dispute settlement mechanism without panel reports being sent into the void by regular appeals. The chapter introduces the pertinent WTO rules and the MPIA and assesses the arrangement’s compliance with the former. To ensure that the MPIA can indeed live up to EU’s ambition to ensure assertive enforcement of multilateral trade rights, it evaluates whether the MPIA is likely to provide security, predictability, and high-quality rewards while also helping to unlock the WTO dispute settlement crisis. Then, the chapter assesses whether the MPIA could be blocked by an unwilling party, thereby jeopardizing the operation of the MPIA. Finally, to be able to weigh in on the ability of the MPIA to contribute to solving the crisis or rather to undermine the WTO multilateral system, it considers the MPIA’s broader geopolitical implications.

The Politis/Lauterpacht project foundered both on academic rejection and (above all) the jealousy of states with regard to their sovereignty. The pragmatic alternative was first described by Kiss in a remarkable doctoral thesis in 1953, prefaced by five incisive words by Bastid, his supervisor: ‘it [abuse of right] should not be taken literally’. In this more modest conception, the prevention of abuse of right (which no one will dispute as an abstract proposition) is recognized as a general policy goal, requiring the hard work of negotiating contextually meaningful criteria as lex specialis. This reasonable retrenchment is informed by the understanding that avoiding abuse of rights on the international plane requires the accommodation of concurrent rights which may naturally generate competing claims. This process does not call for the assignment of moral blame, and cannot succeed as intuitive projections of the phrase ‘abuse of right’.

The author looks at the ‘inherent powers’ of the WTO Appellate Body (AB) and ICSID tribunals. She argues that the key to the exercise of the international judicial function is the principle of inherent powers, which are conferred upon judicial bodies to safeguard the judicial function. Yet, for the WTO Appellate Body and ICSID tribunals , it is often assumed that while ICSID tribunals have broad inherent powers, the AB’s inherent powers are restricted. She asks the question whether this means that these tribunals are fragmented in the exercise of their judicial function, and consequently their inherent powers, and if so, what factors contribute to such fragmentation. This chapter answers the above questions by examining the way the AB and ICSID tribunals perceive their authority to exercise inherent powers through the examples of objections to admissibility of a case and amicus curiae submissions. Using these examples, this chapter challenges absolutist assumptions about the inherent powers of the AB and ICSID tribunals. Instead, it develops a nuanced understanding of the scope of the inherent powers of these tribunals through a study of their respective judicial functions.